Human Rights at Home Blog

New Article: (G)local Intersectionality

Martha F. Davis, (G)local Intersectionality, 79 Wash. & Lee L. Rev. 1021 (2022). Abstract below.

Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of Racial Discrimination.

This “relocalization” phenomenon—which brings intersectionality back to its roots in domestic law—is visible in many parts of the world. In Europe, cities in Spain proactively integrate intersectional approaches into their local human rights regimes. Outside of Europe, Montréal applies an intersectional analysis under its Charter of Rights and Responsibilities, a local governance document grounded in the values of fundamental human rights and dignity. Human rights cities like Gwangju, Korea, embrace intersectionality as a programmatic imperative. In the United States, San Francisco, Pittsburgh, Los Angeles, and Cincinnati, among others, incorporated intersectional approaches to nondiscrimination in the wake of adopting local CEDAWs.

The relocalization process is not always straightforward. Challenges include the difficulties of reconciling local intersectional approaches with national laws that may not recognize intersectionality, and developing indicators tailored to local experiences. On the other hand, local adoption of intersectionality opens up robust possibilities for participation in communities’ legal and political processes, which many local governments emphasize.

UCI Law International Justice Clinic Successfully Urges LA County to Implement Global Treaty on Gender Justice

By Mary Hansel, Co-Editor

Since 2019, Prof. Mary Hansel and her students in the UCI Law International Justice Clinic (IJC) have advocated for Los Angeles County to pass a measure implementing the United Nations Convention to Eliminate All Forms of Discrimination Against Women (CEDAW). CEDAW is the core international human rights treaty for intersectional gender justice and has been ratified by all but six countries — including the United States. In response to the U.S.’s failure to ratify the treaty, grassroots advocates have focused on passing local CEDAW measures; indeed, a Cities for CEDAW movement has emerged (as discussed in previous posts here, here and here). The local measures, to date, have brought about remarkable strides in gender justice and helped promote human rights awareness.

Recently, after nearly three years of IJC advocacy, the County passed a binding ordinance implementing CEDAW. The ordinance provides that CEDAW “must be integrated in the County’s role as an employer, service provider, and community and business partner, and must apply to women and girls of all identities and categories.” It explicitly addresses gender justice in the areas of economic development, education, housing and homelessness, gender-based violence, healthcare, criminal justice and voting rights. The County has already started conducting a gender impact assessment to take stock of how it can align its activities with the ordinance and further promote gender justice. IJC is hopeful that this ordinance will improve the lives of the County’s 10 million residents.

Prof. Hansel has been invited to join the National Cities for CEDAW Advisory Committee. As a Committee member, she looks forward to facilitating the implementation of CEDAW in local jurisdictions across the country.

Event: June 24th Discussion on the rights of indigenous women and girls with the UN Committee on the Elimination of Discrimination Against Women

The Committee on the Elimination of Discrimination against Women will hold a virtual day of general discussion on the rights of indigenous women and girls. The Committee states that "the purpose of the day of general discussion is to stimulate debate and seek inputs for the elaboration by the Committee of a General Recommendation on the rights of indigenous women and girls. The aim of the General Recommendation will be to provide guidance to States parties to the Convention on the measures they should adopt to ensure full compliance with their obligations under the Convention to respect and protect the rights of indigenous women and girls." 

The discussion will take place online on Thursday June 24, 2021, from 12:30pm-2:30pm and from 4:00pm-6:00pm (Geneva time)/ 6:30am-8:30am and 10:00am-12noon (Eastern time). (Link to be posted here at a later date).

The Committee welcomes written submissions which should be sent electronically in Word format to Marco Zanin, Human Rights Officer, at [email protected], indicating "Submission - General discussion on GRIWAG" in the subject. Submissions must not exceed a maximum of 3,300 words and must be received by June 18, 2021 at the latest.  

If you wish to deliver a brief oral statement during the discussion, it must not exceed 3 minutes and you must indicate your intention to do so and must send your statement electronically in Word format to Marco Zanin at [email protected] by June 18, 2021 at the latest, indicating "Registration - General discussion on GRIWAG"in the subject. 

More information on this event is available here.

Is It Time For Local Governments To Engage With CEDAW'S Substantive Guidance?

Prof. Mary Hansel of UC Irvine School of Law sends this post from the students in the International Justice Clinic.

Is it Time for Local Governments to Engage with CEDAW’s Substantive Guidance — and Is Such Guidance Relevant to the Current Gender Equity Discourse?

Previous posts on the Human Rights at Home Blog have reported successes in passing U.S. local resolutions and ordinances affirming and upholding “the principles underlying” the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). These measures have brought about remarkable strides in gender equity and helped promote human rights awareness at the local level. But what about the detailed substance of the treaty — beyond its foundational principles? In crafting gender equity policies and programs, could local governments benefit from more robust engagement with CEDAW’s substantive guidance? Does such engagement have the potential to enhance gender equity for local residents?

In thinking through these questions, a threshold matter is whether the substance of CEDAW is even relevant to gender equity initiatives in the #MeToo zeitgeist. Indeed, the plain text of the treaty drafted four decades ago, may seem inapposite to today’s gender discourse. The rich substance of CEDAW, however, is found in the interpretive statements and jurisprudence issued by the Committee on the Elimination of Discrimination against Women, the UN body of experts on the treaty.

The Committee maintains the treaty’s relevance by continuously applying its standards to novel challenges in light of developing norms. The Committee explained this process in General Recommendation No. 25, as follows:

The Convention is a dynamic instrument. Since the adoption of the Convention in 1979, the Committee, as well as other actors at the national and international levels, have contributed through progressive thinking to the clarification and understanding of the substantive content of the Convention's articles and the specific nature of discrimination against women and the instruments for combating such discrimination.

Accordingly, the Committee keeps pace with evolving notions of gender equity. For example, the Committee has addressed the following array of timely issues:

• Intersectionality as fundamental to gender equity. The Committee prioritizes intersectionality as “a basic concept for understanding the scope of the general obligations” and calls upon governments to “legally recognize such intersecting forms of discrimination and their compounded negative impact on the women concerned and prohibit them.” (General Recommendation No. 28.)
• Challenges facing the LGBTQIA+ communities.  The Committee acknowledges the "intersecting forms of discrimination faced by lesbian, bisexual, and transgender women and intersex persons" and lays out the specific issue areas requiring governmental support, including harmful stereotypes, school bullying, hate crimes and employment discrimination. (Concluding observations, DEDAW/C/MUS//CO/8,12 November 2018; General Recommendation No. 36)
• Protections for migrant women, including trafficking survivors. The Committee condemns the mistreatment of female migrant workers, asylum seekers and trafficking survivors, emphasizing governmental roles in protecting     these marginalized groups from harm and providing support services. (General Recommendation No. 26; General     Recommendation No. 32.)
• Sexual assault and harassment. The Committee has called for zero-tolerance policies in addressing gender-based violence in the public and private spheres, as well as governmental reporting “on sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the workplace.” (General Recommendation No. 19; X and Y v. Georgia, CEDAW/C/61/D/24/2009, 13 July 2015.)
• Access to comprehensive healthcare, including reproductive care. Under CEDAW, governments are urged to implement strategies to promote women’s health, including “interventions aimed at both the prevention and treatment of diseases and conditions affecting women, as well as . . . ensur[ing] universal access for all women to a full range of high-quality and affordable health care, including sexual and reproductive health services.” (General Recommendation No. 24.)
• De facto equality in education and work settings. The Committee has underscored governmental “obligations to ensure the universal right to high-quality education and to create an enabling environment that allows girls and women to become agents of change,” as well as the need for income equality, paid parental leave and other measures to ensure equitable working conditions. (General Recommendation No. 31; General Recommendation No. 13; Concluding observations, CEDAW/C/AUS/CO/8, 20 July 2018.)
• The gender dimensions of climate change. Recognizing that climate change particularly impacts women and girls and tends to exacerbate gender inequalities, the Committee recommends the inclusion of gender equity initiatives in environmental policies and programs. (General Recommendation No. 37.)
• Online safety challenges. The Committee addresses gender issues arising from the ubiquity of the Internet and social media, including cyberbullying, digital privacy violations and the proliferation of harmful stereotypes. (General Recommendation No. 36; General Recommendation No. 35.)

The Committee’s treatment of such topical issues demonstrates the continued relevance of the treaty for current gender equity initiatives. Accordingly, local governments may wish to consider the extensive guidance offered by the Committee. Might the next step in local CEDAW implementation involve greater engagement with the treaty’s detailed substance, in addition to its underlying principles?

Research by Kelsey Goldman, Cheyenne Hunt-Majer and Correy Miller, students of the International Justice Clinic, UC Irvine School of Law, supervised by Profs. David Kaye and Mary Hansel.

Pittsburgh Mayor Honored for Role in CEDAW City

Last month, the NGO Committee on the Status of Women/New York awarded the Cities for CEDAW Global Leadership Award to Mayor William Peduto of Pittsburgh, PA. 

The Committee explained that Mayor Peduto "was chosen for this award due to his work to implement sustaining policies which eliminate all forms of discrimination against women at the local level."

The press release for the announcement provides some additional background on the component parts that worked together to achieve this change for Pittsburgh:

"To make the global local in Pittsburgh, NGOs: WILPF/Pittsburgh and the Zonta Club of Pittsburgh, along with women advocate groups New Voices Pittsburgh and the Women’s Law Project, formed the Pittsburgh for CEDAW Coalition. They worked closely with their sponsor, Councilperson Natalia Rudiak, and with the full support of Mayor Peduto, the City Council passed unanimously the CEDAW ordinance in 2016. The Ordinance seeks to improve the lives of all women and girls in Pittsburgh by, for example, reducing and eliminating violence against women and girls, promoting more equitable economic development, increasing quality education opportunities and the delivery of all City services. It recognizes discrimination in these areas also affects the health and well-being of women and girls and seeks ways to improve or complement the work that is already being done by groups such as the Pittsburgh Public Safety Department. The Gender Equity Commission began meeting in 2018 and currently has 14 volunteers who are local feminist leaders. Executive Director Anupama Jain describes their goals of “dismantling gender inequalities in our city” and reiterates the CEDAW motto that, “when women succeed, our communities thrive.'"

Women’s Rights on the Move: Coming to a City Near You!

By Kate Kelly & JoAnn Kamuf Ward, Columbia Law School Human Rights Institute

 

 

 

 

 

A number of recent and exciting developments in the local implementation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) have occurred over the past year.  There are now 9 ordinances in place, and 28 city, county and state governments have adopted CEDAW resolutions. There is also growing momentum of women’s rights movements around the country, including the #MeToo and #TimesUp movements, as well as the ongoing work evidenced by women’s marches and other groups demanding accountability.

 

To  build upon this energy, and continue the momentum, the Columbia Law School Human Rights Institute and the Leadership Conference on Civil and Human Rights convened a CEDAW strategy session on the margins of the 2018 UN Commission on the Status of Women (CSW) in New York.  This meeting was a unique chance for advocates from around the country to collaborate, share lessons learned, and support each other in efforts to operationalize CEDAW at the local level. Representatives from CEDAW advocacy groups, local government, and academia, representing over 20 cities and counties were present, from Portland to Pittsburgh and Denver to Durham, and many places in between.

 

To ensure that advocates across the country can continue to raise awareness of what CEDAW entails and how it can be useful in the local context, the meeting convenors developed user-friendly materials that include a two-pager that distills the basic provisions of CEDAW, as well as a plain language guide to all of the General Recommendations from the CEDAW Committee, reflecting interpretations of the treaty.  These materials are available on the Cities for CEDAW website, along with more in-depth guidance for implementing CEDAW locally.  

 

A number of new local initiatives were highlighted at the meeting.  For example, a California state CEDAW resolution passed in February 2018. While it does not have a binding effect on municipalities or counties in the state, it is the first resolution of its kind at the state level and is an important expression for support for CEDAW.  The resolved clause contains some robust and positive language:  “Adherence to the principles of the CEDAW on the state level will especially promote equal access to and equity in health care, employment, economic development, and educational opportunities for women and girls and will also address the continuing and critical problems of violence against women and girls.”  It also highlights that the Legislature supports  .. CEDAW … by addressing discrimination against women and girls in areas including, but not limited to, economic development, education, employment practices, violence against women and girls, and health care…”

 

Lest you think that CEDAW is only gaining traction in those jurisdictions typically considered “progressive,” like California, there have been recent developments in a range of places.  Rapid City, South Dakota’s City Council passed a CEDAW resolution in early March 2018.  Advocates there emphasized CEDAW as a positive accomplishment that raises the profile of the city nationally and globally. Resolutions were also passed in Columbia, South Carolina and two related ordinances were passed in Cincinnati, Ohio.  

 

Local governments, too, continue to recognize the power of CEDAW. The International Association of Official Human Rights Agencies (IAOHRA) adopted a Gender Equity Resolution at its 2017 annual conference. Through the resolution, IAOHRA urged support for municipal, county, and state  efforts to “advance gender equity and promote and affirm principles of CEDAW.” IAOHRA also resolved to assist its member agencies in supporting local CEDAW and gender equity initiatives. This is particularly notable since IAOHRA is an association of over 150 state and local statutory civil and human rights and human relations agencies all over the United States, and in Canada.

 

If any local groups need support, materials or information about how to implement CEDAW in your area, join the Cities for CEDAW Coalition here.

 

Cities for CEDAW, Coming Soon to Your Town!

When the Cities for CEDAW campaign was launched at the UN Commission of the Status of Women meeting in 2013, it aimed to enlist 100 cities within a year.  That ambitious effort fell short, but the Cities for CEDAW effort has kept up the momentum in the subsequent years, with consistent gains across the country 

Maybe Chicago -- which has not yet joined the other major cities on the roster like Los Angeles, Pittsburgh, and San Francisco -- will be next.  On April 27, at 6 p.m., the UN Association of Chicago will sponsor a panel discussion on Cities for CEDAW, and why the movement is important.  More information on the event is here.  If you live or work in Chicago, try to attend.  And if you have friends in Chicago, let them know. 

But if you're not in Chicago, don't mourn.  Think about how to connect with interested folks in your own town or city.  UNA Women is actively promoting the Cities for CEDAW campaign nationwide, and they have chapters in many cities across the country.   

If you want to know more about the campaign, a new article by Dr. Malliga Och of Idaho State University, in the March issue of the International Feminist Journal of Politics, examines the movement. Here's the Abstract for the article "The Local Diffusion of International Norms: Understanding the Cities for CEDAW Campaign":

While the international human rights norm literature has revolved mainly around the diffusion and implementation of human rights at the national and global level, less is known how international human rights norms are adopted on the local level. To fill this gap, this article will focus on the Cities for Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) campaign which encourages cities in the United States to adopt ordinances incorporating principles set forth by UN CEDAW. This article will analyze how the Cities for CEDAW campaign frames international gender norms to make them relevant in local contexts. Drawing on original interviews with Cities for CEDAW activists, this article will further our understanding how local human rights activists can utilize international human rights treaties to integrate human rights norms on the local level.

 

Why Do CERD and CEDAW Fail to Garner Business Support?

While supporting transgender advocates working to repeal North Carolina laws discriminating against sexually diverse individuals, I reflect on the public support that corporations have experienced since refusing to do business in the offending (and offensive) state.  Similar support was given by major corporations in Georgia. This leads to a chronic and unanswered question:  why do the same entities deny support to women and racial minorities in their discrimination issues?  

Might it be that discrimination against women and racial minorities is so pervasive that to object might disqualify  the businesses from operating in all U.S. jurisdictions?  I don't think that the answer is that simple.  Most of the corporations supporting the transgender community have, and continue to, discriminate against women and racial minorities.  

In 2013, Bank of America agreed to pay $39 million dollars to women who experienced discrimination in its related corporation, Merrill Lynch.  Immediately before that settlement, the Bank paid $160 million to black brokers.   In 2012, 16 racially diverse workers brought a discrimination claim against Coca Cola claiming aggressive and untempered discrimination in two of the company's New York firms.  These claims came well after Coke agreed to settle a race discrimination suit in 2000 for $192.5 million dollars.  Similar lawsuits are settled every year, often against major corporations.

An easy answer might be that corporations that have paid millions to settle discrimination suits are trying to stay ahead of similar claims based on sexual identity.  A more cynical explanation could be that the transgender corporate workforce is perceived as being incredibly small and claims more easily managed.  If corporations were to acknowledge widespread wage inequities, settlements would be incredibly large.  And with equality would come at least a modest power shift.  

Corporate support of CERD and CEDAW would be a good start in ending workplace discrimination. When corporations decide to stop tolerating hateful and discriminatory language, and decide to pay equal wages and provide respectful working environments, corporations might discover that having a satisfied workforce is indeed good for profits.

Anti-Female Statutes Deny Women Their Human Rights

Following up on Cindy Soohoo's post earlier this week, this post examines the ongoing denial of autonomy to women.  The denial is promoted by the federal and state governments. 

In yesterday's post, Prof. Soohoo mentioned a particularly brave abortion provider in Alabama.  This past week, representatives of the Working Group on Discrimination Against Women in Law and Practice visited Birmingham.  As reported by Amy Yurkanin, Committee members made the stop to explore abortion restriction, criminalization of drug use during pregnancy and restrictions on contraception.

The committee noted that women are denied access to reproductive choice not by directly outlawing abortion, but by making access so restrictive as to create virtual abortion bans. Yurkanin quoted Frances Raday of Israel saying "America looks as though it is joining the regional plague. They are doing it by making abortion not accessible instead of illegal."  This term, the Supreme Court will address restrictions that lead to abortion clinic closures in the case of Whole Woman's Health v. Cole.

As Yurkanin further reported, "Lucia Hermo of the ACLU of Alabama described the laws that have been passed to restrict abortion, including one that would assign lawyers to the fetuses of pregnant teens seeking abortion without parental consent. That law is under review by a federal judge."  While Alabama seems eager to appoint counsel for a fetus an underage teen seeks to have an abortion, should that child be born, the state will not provide counsel for either the child or the child's mother when protection from an abusive father is sought or when the child is in the middle of custody dispute.   

The widely accepted substitution of the medically correct term "fetus" for "unborn child" has created the climate where state prosecutors manipulate laws designed to protect living children into tools of female prosecution. Both Tennessee and Alabama are enforcing their chemical endangerment of a child statutes by arresting and prosecuting women who use drugs during pregnancy.   In Wisconsin, a similar law has been in effect since 1998, and is used in cases where pregnant women with a history of drug use are arrested and confined against their will.  In a phrase that rejects treating all with dignity, those women are referred to as "cocaine moms."  The enforcement against pregnant women discourages them from disclosing past drug use and seeking help for current addictions.

We have sanitized the discussion.  Many hold sincere religious beliefs that are the source of their moral opposition to abortion.  But those beliefs do not justify laws that result in disparate gender impact and does not excuse legislators who lack the courage to oppose legislation based in the promotion and imposition of  those beliefs.  Likewise, community religious beliefs do not eliminate the obligation of lawyers and judges to begin any analysis with the gender discriminatory impact of laws that purport to promote health.  Reproductive rights restrictions and other legislation targeted toward women, and in particular mothers, are not gender neutral and must be redefined in the broader framework of the ongoing oppression of women.  Any other rationale is a disguise.

 

 

Fisher v. University of Texas at Austin, and the Relevance of Human Rights

by Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School

 Is human rights law relevant to the Court’s consideration of UT Austin’s admissions selection policy? In Fisher v. University of Texas at Austin, the Court has the opportunity to reaffirm the importance of ensuring diversity and inclusion in higher education. Such a decision would be supported by international law: equal opportunity college admissions policies help the U.S. to fulfill its human rights commitments.

At issue in Fisher v. University of Texas at Austin is the university’s admissions policy, which considers race among many other factors as a means of ensuring a diverse and academically qualified student body. UT Austin’s admissions policy has two components. Most students (75%) are admitted through the school’s “Top Ten Percent plan,” which guarantees admission for Texas students in the top ten percent of their high school class. The school fills the remaining slots through a holistic multi-factor review of each applicant, considering over a dozen factors, one of which is race.

This is the second time the Court has heard arguments in Fisher. The case has a well-told procedural backstory.

Directly at issue in Fisher is UT Austin’s admission policy. But the ruling could have wider implications on the ability of colleges and universities to maintain policies that seek to ensure equal opportunity and racial diversity. As the New York Times noted last week, recent activism on college campuses has amplified the conversation around race and higher education, and the stakes in Fisher feel particularly high.

What does human rights add to the mix? As noted by Human Rights Advocates and other organizations joining an international human rights amicus brief filed in Fisher, UT Austin’s admissions plan helps the United States meet its human rights commitments. And it is in line with international practice. The brief was authored by Connie de la Vega at University of San Francisco School of Law, along with Neil Popović at Sheppard Mullin.

As the human rights amicus brief notes, two of the core human rights treaties ratified by the United States support the use of holistic considerations of race in higher education admissions decisions. In particular, the Convention on the Elimination of all Forms of Racial Discrimination (CERD), ratified by the U.S. in 1994, calls on countries to take affirmative steps to eliminate and prevent racially discriminatory practices. Article 2(2) of the Convention calls on countries to take “special and concrete measures” to guarantee and advance equality. The CERD Committee has elaborated on the meaning and scope of “special measures,” and in reviewing countries’ compliance with CERD, the Committee has emphasized their particular importance in the field of education. During the most recent review of U.S. compliance with the CERD, in 2014, the CERD Committee noted concern with policies and practices within the United States that have been adopted against the use of special measures in higher education, and recommended that the U.S. instead adopt and strengthen the use of such measures to eliminate persistent disparities.

The International Covenant on Civil and Political Rights (ICCPR), too, supports the use of holistic considerations of race in higher education admissions policies. In particular, Articles 2 and 26 of the ICCPR prohibit discrimination and guarantee effective protection against practices with discriminatory effects. The U.S. ratified the ICCPR in 1992. When it was reviewed by the U.N. Human Rights Committee in 2011, the U.S. noted that educational policies aimed at achieving racial diversity and avoiding racial isolation help the U.S. to implement the Covenant’s equality guarantees.

If any of the Justices do, in fact, consider international law in assessing the constitutionality of holistic considerations of race in college admissions, it would not be first time. In 2003, in Grutter v. Bollinger, the Court considered the University of Michigan Law School’s admissions policy and affirmed the school’s compelling interest in ensuring the educational benefits of diversity in higher education, emphasizing the advantages of diversity for all students and for the country as a whole. In a concurring opinion, Justice Ginsburg noted that the Court’s decision was consistent with international understanding of affirmative action, citing to CERD as well as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). She similarly cited to CERD and CEDAW in her dissenting opinion that day in Gratz v. Bollinger.

Are Justices likely to cite directly to international law this time around? Perhaps not. Nevertheless, human rights can provide important context for their consideration of the case.
Sixty-seven amicus briefs were filed in Fisher in support of the university. These briefs note the benefits of diversity in higher education, the importance of expanding opportunity for students from all backgrounds, and the importance of preventing racial isolation in colleges and universities. Likewise, amici, including Fortune 100 companies and retired military and national defense leaders, urge the Court to consider ways in which a diverse university and workforce are in the national interest, and critical to America’s success. As the human rights amici note, ensuring equal opportunity in college admissions serves the important (and entirely consistent) function of helping to bring the United States in line with its human rights commitments, as well.