Making the law work for women: Standard-setting through a new Gender Legislative Index

The normative role of the law

The law is a powerful tool to transform society, determine the way in which the world functions, and shape how people live by setting norms and establishing new trends. Laws can help to shift traditions and cultural practice, for the better or for the worse. ⁹ It can be a vital entry point for advancing gender equality. ¹⁰

There are obviously various organs and actors involved in the institution of the law: those who draft it; the courts which apply it; and the police and prosecutors that enforce it. ¹¹ Some might argue that the law has far more to do with implementation. In the words of Justice Robert Jackson, Associate Justice of the US Supreme Court (1941–54), ‘if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices.’ ¹² Due process in the law's application is essential and implementation of the law itself remains a global obstacle.

The law may play an indirect role in social change by shaping the practices of social institutions. For instance, the setting up of a compulsory education system shifted social views about the need to send both boys and girls to school. ¹³ The law can play a more direct role by, for instance, prohibiting polygamy, as condemned by international law, ¹⁴ while simultaneously shifting social attitudes against the practice. ¹⁵ The law's culture power is probably best reflected in recent times through the issue of same-sex marriage. ¹⁶ Cultural marriage rituals – such as the use of the terminology of ‘marriage’ – give public commitment rituals a sense of legality, even in the absence of the law, while laws on same-sex marriage have the power to produce social and cultural equality for same-sex couples. ¹⁷

Nonetheless, there are many reasons why we should value and invest in the goal of achieving a body of gender-responsive laws. As a starting point, the legislative process is far more transparent than enforcement. Legislation in many systems goes through a defined procedure, with multiple readings before a parliament and, sometimes, a senate. Legislative processes create platforms for dialogues on social issues, allowing the expression of various voices and perspectives. ¹⁸ Even if modern legislative processes require balancing transparency with efficiency in the enactment of laws, laws expressed by acts and legislative instruments can only be truly effective if they rest on broad societal support, necessitating that legislative processes in democratic societies are open and inclusive. ¹⁹ It is therefore not only justified but fundamental to invest in an index that can facilitate greater accountability for women's rights at the drafting stage.

Finally, as conceded above, such an index would be limited in its ability to look at the actual implementation of a law. Nonetheless, even based on a textual analysis of the law, an index of this kind could look at both the law's stated intention as well as its likely effect. This is particularly the case where the law's stated intention may be furthered or undermined in light of whether or not key provisions have been included or excluded from the text of the law. Examples of such a distinction between the law's intention and likely effect are offered below.

The framework for a Gender Legislative Index

The purpose of the proposed Gender Legislative Index (GLI) is to evaluate and score legislation, by placing it on a scale from gender-regressive to gender-responsive. Developing the GLI requires a consensus on how gender should appear in the law. To date, discussions globally about the use of gender-neutral or even gender-sensitive language in the law have taken a very narrow approach to the issue ²⁰ – one that has been at times an inadequate response ²¹ to what needs to be a structural and rigorous re-think as to how the law should consider gender.

As will be seen below, a GLI should go well beyond this ‘formal neutrality’ and identify when a gendered perspective is required of the law and is either present (gender-responsive) or absent (gender-blind). It should consider too the limited circumstances when a gendered approach may prove unnecessary (what the GLI would label as gender-neutral legislation). The four categories – from regressive to responsive – have been identified and defined as follows:

(a) Gender-responsive legislation makes legislative systems more responsive to explicit and implicit gender issues. It facilitates accountability, in legislative and policy implementation, to the specific needs of different sexes and to different gendered perspectives on pivotal social, economic and political issues.

Putting life into the GLI: Some concrete examples

First, several relatively straightforward examples can be offered to explore the application of the model. The criminalisation of abortion in several countries across the world ²² serves as an example of a gender-regressive law. Laws that prohibit women's access to safe and legal abortion services or criminalise women and their providers are gender-regressive.

Legislation may be enacted to make low-cost public transport available in urban areas. While seemingly gender-responsive, such laws could be evaluated as gender-blind in their likely effect if they failed to consider women's needs as reflected in a spate of global studies on women's experiences of unsafe cities. ²³ Gender-blind laws in this sector fail to guarantee access to transport at hours relevant for women who are informal workers or those doing shift work; or ignore the need for street lighting at night near bus terminals and other transport hubs; or lack penalties for sexual harassment in public spaces.

A law may be considered gender-neutral where it is determined that a gender perspective is not necessary – for example, a law that amends the definition of a legal term in a manner that is inconsequential from a gender perspective, or a law that changes the name of a public high school from ‘Agricultural High School’ to ‘Technical High School’.

Finally, any regulation that simplifies the banking practices of the financial services sector to reach more women would be evaluated as gender-responsive. Examples include, for instance, reducing the minimum deposit and other requirements for opening a bank account, ²⁴ or promoting mobile banking to reach remote or rural women.

Now I move into the more complicated terrain where the label of gender-neutral is often erroneously or loosely used for what are gender-blind laws. A woman may face legislative barriers to accessing a loan, such as requiring a male relative's signature for her application (and not necessarily the same requirement the other way around). ²⁵ While this may appear an archaic example to some, women in the United States of America were not protected from discriminatory lending rules requiring them to produce the signature of a male guarantor until 1988. ²⁶ In other countries, this still remains a problem. In Pakistan, for instance, the law does not prohibit micro-finance enterprises from requiring a woman to obtain her husband's consent and signature for processing a loan. ²⁷

Discriminatory access to finance is also a problem in countries even where banking laws do not discriminate against women borrowers but establish the same requirements of having a co-signer for both male and female borrowers – seemingly a gender-neutral approach. By failing to recognise the barriers women face to obtaining their male family members’ support, such seemingly gender-neutral laws can easily become gender-blind where a woman's intra-household negotiations with her male family members act to reinforce a woman's vulnerability and her subordinate position in the household. ²⁸ The GLI would not classify such a law as ‘neutral’ but ‘blind’ as a gender-perspective is indeed required and is lacking. By contrast, a gender-responsive approach to financial banking regulations could facilitate different actors – other than a male relative – acting as guarantor.

To offer a further example of the grey terrain between a gender-neutral and a gender-blind law, an act that merely involves changing the name of a street, district or province may also appear gender-neutral. However, if the names of 10 main streets in a town were changed to reflect male national heroes, without a single female national hero named, such a law would quickly slip into the category of gender-blind. The GLI therefore creates the possibility of a more nuanced analysis of the law.

Common criteria for comparability across laws and jurisdictions

The next challenge in this exercise is defending the comparability of the law across multiple jurisdictions. This has been attempted before in relation to a small subset of laws. For instance, comparative studies have indicated that some legal systems – for example, Belgium, Denmark, France, Latvia, Luxembourg and Sweden – perform better for women in relation to gender-discrimination at work than others. ²⁹ The GLI would be a tool to facilitate a comparison of a wide spectrum of laws across countries in both the global north and south.

However, in order to establish such a tool to assess the gender-responsiveness of legislation, and then compare such rankings, it is important to identify a fair set of benchmarks applicable to a range of jurisdictions and countries. The system should also offer greater depth, going beyond merely categorising a law overall as gender-regressive, gender-responsive or gender-blind, to allow an assessment of the various ways in which the law should advance women's interests as demanded by international human rights law.

To meet those requirements, I propose the use of CEDAW's General Recommendations, currently a set of 37 recommendations issued from 1986 up until the 37th General Recommendation in 2018. These recommendations span a range of themes, including violence against women, women living with disabilities, women and health, equality in marriage and family relations, unpaid women workers, migrant women and older women.

A review of CEDAW's 37 recommendations shows that certain priorities have been frequently repeated in the CEDAW Committee's recommendations for legislative progress. ³⁰ From these recommendations we can derive a common set of criteria against which all legislation can be assessed.

For instance, there is a clear demand from international women's rights law for states to provide both services and information and education to women. Women's free choice in decision-making is an evident further priority. The CEDAW Committee constantly calls for laws, policies and programmes that promote equality between men and women, which has included everything from education and public awareness campaigns to guaranteeing equality of opportunity.

Based on this assessment of CEDAW's General Recommendations, the seven criteria most reiterated by the Committee to states which require (among other things) legislative reform at the domestic level are:

Does the law guarantee access to non-discriminatory, and accessible, affordable, acceptable services?

What is needed in the law to fulfil these criteria would be different depending on the sector, but one can find the answers in international soft and hard law. The development of these ‘standards’ should be sector specific and the most challenging part of this index. ³¹ For instance, for ‘access to services’ (question 1), a gender-responsive law in the area of reproductive health would guarantee access to all reproductive-related health services including family planning, ante-natal, maternity and post-natal services for all women. ³² The requirement of guaranteeing ‘access to services’ in the extractives sector may require laws that guarantee all women workers in large-scale and artisanal and small-scale mining have on-site access to sufficient and suitable facilities (toilets, showers, washbasins and changing facilities) that are gender-specific. ³³

In answer to question 4 on the ‘promotion of equal relations between men and women,’ in the context of labour law, gender-responsive legislation would guarantee men and women the same employment opportunities, the application of the same selection criteria, the right to free choice of profession and employment, and the right to promotion, job security, vocational training and retraining. ³⁴ Against the same question, but in the field of tax regulation, gender-responsive legislation that ‘promotes equal relations between men and women’ would not give tax deductions for a dependent spouse, or allowances for married couples or tax credits for sole-earner couples, which otherwise create disincentives for married women to participate in the labour market or perpetuate asymmetries with single-parent families. ³⁵

Concluding remarks

This article is premised on two notions. First, the law is an indispensable tool to shape behaviour and practice in our societies and therefore forms part of the essential armoury in the fight for greater equality between men and women. Second, in light of the law's fundamental normative role, it is better to ensure that legislation passed in the first place responds to the needs and rights of women rather than witness the enactment of gender-blind or gender-regressive laws on paper that have a limited role in advancing society, and women in particular, towards the enjoyment of their rights. Consequently, it is better to have no law yet in place – with the potential to lobby for gender-responsive drafting of a bill – than to have a gender-regressive or, at best, gender-blind law in force that does not adequately address the issue and later needs amending.

My purpose in this article has been to provide readers the theoretical and operational framework for a GLI to facilitate a ranking and scoring of laws on a global scale. The proposed tool would allow experts to enter their assessment of the gender responsiveness of legislation according to standards based on international law. At the same time, the standards themselves – derived from international law – would act as guidance for the drafting (and redrafting) of legislation in the future. For advocates and activists in the field, the proposed index can also show the aggregated legislative footprint of countries in their effort to achieve gender-responsive outcomes or even the impact of particular parties or leaders in terms of the gender-responsiveness of their legislative priorities.

A Gender Legislative Index, grounded in CEDAW, is not infallible. Some may argue that it is not justifiable to demand that the law be particularly responsive to the needs of women, over and above any other marginalised groups. Even among feminist legal scholars, some believe the focus should not be on women but rather on social and economic well-being for all. Along this line of thought, we should be seeking laws that are good for all of society and not necessarily for women in particular. Yet, while risking instrumentalism, legislation that is responsive to women's needs would simultaneously positively affect the lives of people with other identities, and at no stage do I argue that laws should be good for women alone.

Another possible shortcoming is the limited nature of textual analysis. For example, the proposed GLI would not be able to assess how effectively laws are implemented, although the likely effect of the law could be assessed. Similarly, a literal reading of the norm would not easily allow the index to score a law in the instances where the text of the law upholds one particular women's rights issue while undermining another – let alone where the rights of women may conflict with those of other groups, such as women living with disabilities or Indigenous groups. However, a system that allows for some degree of qualitative assessment could solve this issue.

Attempts to create a ‘universal’ woman's experience have been rightly heavily critiqued. As such, an index that applies standards universally to all laws may also raise concerns. At the same time, patriarchy and women's unequal status is indeed almost universal and certainly a very real problem. Therefore, by grounding itself in CEDAW, the GLI offers an initial starting point to define and measure legislative progress for at least the 189 state parties which have committed to the rights articulated in CEDAW and by the CEDAW Committee.

The ultimate goal is a unified and comprehensive framework that integrates women's concerns, not fragments them, with issues of race, class, religion, ethnicity, sexuality and disability, among other identities, rather than an approach that looks singularly at so-called ‘women's issues’. The result should be bodies of laws grounded in the international human rights commitments that states make when ratifying international human rights treaties. Moreover, the exercise of setting good practice standards and evaluating existing laws against these standards should remind legislators of the need to be conscious of the different ways in which the law affects those governed by it.

There is no one singular man or singular women, despite the singularity often presented by the law. Nonetheless, by extrapolating standards from international human rights norms, we can assess laws in a way that acknowledges ‘women's concerns’ and recognises how they are integrated with issues of race, class, sexuality and other identities. The GLI can therefore help us go part of the way towards reducing gender disparities and embedding a rights-based response in the legal foundations of our societies.