Idil Ozcan graduated from Koç University Law School with a double major in Sociology in 2017. During her undergraduate studies, she took part in research projects focusing on Constitutional Law and International Human Rights Law. She is currently a Master’s student in Law at London School of Economics and Political Science
Sex and Gender under CEDAW
Some authors point out that CEDAW aims to eliminate discrimination against women and to achieve equality between men and women, without defining who they are and without clarifying the use of terms such as sex and gender in the text of CEDAW. The Vienna Convention on the Law of Treaties (VCLT) sets out the general rule on the interpretation of treaties with the focus being placed upon the “ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (Article 31, VCLT). The literature on gender, however, has come a long way since the adoption of CEDAW. The ‘ordinary meaning’ of ‘woman’ has been extensively challenged over the course of the past 38 years. Critiques have focused on the ambiguities of gender and have posed a noteworthy challenge against not only social or medical classifications of gender, but also legal ones. In General Recommendation No. 28, the CEDAW Committee introduced the terms ‘sexual orientation’ and ‘gender identity’ as factors that are linked to the discrimination of women based on sex and gender and thus highlighted an intersectional approach (para 18, CEDAW General Recommendation No.28). Nonetheless, since the terms sex and gender are mistakenly used in an interchangeable fashion under CEDAW, it is not clear whether the criteria for protection covers only women who physically display female sex characteristics or CEDAW’s protection, or whether protection extends to individuals who merely identify themselves as a ‘woman’. The Committee has not yet had the opportunity to consider an application from a trans or intersex author, but it appears that the term ‘woman’ could be interpreted in the broadest sense possible. Hence, complaints from individuals who do not necessarily conform with the binary gender system could be found admissible by the Committee. In such a case, it would surely be an exciting expansion of gendered perspectives in the field of international law.
Males Before the CEDAW Committee
The opportunity has arisen, however, for the Committee to discuss whether males could be victims of violations of CEDAW. There are indeed several cases where female authors brought complaints before the Committee and claimed that their husbands or sons should also be considered victims. Yet, the Committee refrained from commenting on the matter.
Could this ominous silence evidence a reluctance on the part of the Committee to confront the difficulty and complexity of interpretive issues on sex and gender? Or was it the Committee’s disinterest in delivering what is considered an ‘obvious’ answer – i.e., that males cannot be victims under CEDAW? A recent decision, which will be discussed below, shed some dim light on the Committee’s position. Before turning to examine this decision, let us first have a brief look at the lively discussion found in the relevant literature.
Some authors (see Dianne Otto, Rikki Holtmaat and Paul Post) have argued that CEDAW should be diverted from its emphasis on ‘women’s rights’ towards a more encompassing approach for the myriad of expressions and performances of gender. Rosenblum, wittily borrowing from Macbeth, argues that CEDAW should be “unsexed”. He proposes that CEDAW should be used for the elimination of all sorts of sex and/or gender-based discrimination, including that against men. Rosenblum draws inspiration from the first part of Article 5(a) which reads “to modify the social and cultural patterns of conduct of men and women”. He then suggests that Article 5(a) and its symmetrical approach to equality may be invoked to make CEDAW inclusive of, not only women, but of all sexes.
Ultimately, what is suggested by these authors is that males by themselves may be victims of violations of CEDAW. However, considering the improbability of such drastic changes in interpretation, it is perhaps more pertinent to discuss whether males can be considered indirect victims, because of their association with female victims of gender-based discrimination. To answer this question, let us review the jurisprudence of the Committee, although the case law in this area is admittedly rather limited.
At the outset, it should be noted that none of the cases presented below have reached the merits stage before the Committee. All of these cases, or ‘communications’ as they are called, were found inadmissible on different grounds and the victimhood status of males before the Committee was not therefore discussed.
JS v. UK was the first application before the CEDAW Committee from a male author. J.S. was an Indian national who’s mother held the United Kingdom and Colonies’ Citizenship (CUKC). Under former UK law, citizenship by descent was only available for children whose father had CUKC. Mothers, on the other hand, could not pass on their nationality to their children. Hence, the claim of discrimination, in particular under Article 9(2): ‘States Parties shall grant women equal rights with men with respect to the nationality of their children.’ J.S.’s claims were deemed inadmissible for non-exhaustion of domestic remedies. Despite the UK’s objection that J.S. had no ‘victim standing’. The Committee did not discuss any other grounds of inadmissibility.
In MKDAA v. Denmark, the author was a Philippines national who married to Danish man and had a son. K.D.A.-A. argued that, following their divorce, she had been subject to gender-based discrimination during custody proceedings. The claim before the Committee was on her behalf and on behalf of her son. This communication was considered inadmissible as at the time of the hearing K.D.A.-A. had already been granted the right to take her son to the Philippines and so the case now lacked locus standi.
In MS v. Denmark, the author was a Pakistani national who sought asylum in Denmark, arguing that she and her family were being threatened and harassed in Pakistan by her ex-boyfriend. She submitted the communication on her own behalf and on behalf of her husband and their two children who were minors at the time. Their asylum application was rejected by Denmark and they were risking deportation when they brought their communication before the Committee. The communication was found to be inadmissible because it did not sufficiently substantiate that the author would face a real, personal and foreseeable risk of serious forms of gender-based violence. Again, the Committee did not discuss other grounds of inadmissibility.
The Committee’s Silence on Men
Indeed, the drawback of these decisions in the two cases cited above was lack of any commentary from the CEDAW Committee. Even in JS v. UK, the Committee did not discuss whether he could have had locus standi if he had in fact exhausted domestic remedies. With regards to the two cases against Denmark, the State party insistently argued that adult males or boys could not claim to be victims within the scope of CEDAW; but, these points were not addressed in the decisions of inadmissibility by the Committee. In each case, similar arguments were delivered, unfolding Denmark’s dichotomous, biological approach to the interpretation of CEDAW:
[The State party] recalls the text of article 2 of the Optional Protocol to the Convention and states that no provision of the Convention suggests that it is intended to protect males from discrimination. Furthermore, it is clear from the wording of article 2 of the Optional Protocol, read together with rule 68 of the Committee’s rules of procedure, that only women whose rights under the Convention have been violated can be considered victims. The Convention concerns only discrimination against women, yet the term “women” is not clearly defined in the Convention. For biological reasons, males cannot be regarded as women and, consequently, in accordance with article 2 of the Optional Protocol, the author’s son — a boy — cannot be a victim under the Convention. (para 4.11)
In response, one author, M.S., rejected this argument; “claiming that her husband had to flee Pakistan because of her problems and that their family suffered from discrimination in Pakistan and therefore fear returning there”. M.S.’s communication to the Committee added that “adult males and boys can be victims of gender inequality and discrimination too”.
Unfortunately, the case law of the Committee is limited and questions remain: Could there be discrimination by association for male victims under CEDAW? Could males thus be granted ‘protection by association’? Children, male and female, often become ‘indirect victims’ of gender-based violence that their parents are, or have been subjected to. For instance, in cases of non-refoulement, such as in MS v. Denmark, where the mother was the victim of gender-based violence and brought a claim on behalf of the entire family. In such a case, upholding the right to family unity and the best interest of the child would require special attention from the Committee. If the female victims’ claims were admissible and pointed to violations, it would be difficult for the Committee to distinguish between the effects of these violations on husbands, sons, and daughters. In such cases, the Committee could then allow women as direct victims to bring claims on behalf of other affected family members, male or female, who could be considered indirect victims. A rather recent decision, MW v. Denmark[ii] provides tentative answers to some of these questions and concerns.
MW v. Denmark: A Wind of change?
MS v. Denmark and MKDAA v. Denmark only offer us glimpses of the Committee’s view. Let us take MKDAA v. Denmark where the Committee stated that “[the author] and her son ceased to be victims” (MKDAA v. Denmark, para 6.5). It can be argued that ‘[t]o cease to be a victim’, one first must indeed ‘be’ a victim. This implicit acknowledgement that sons may be considered victims within the scope of CEDAW was confirmed in MW v. Denmark.
The M.W. v. Denmark case was brought by M.W., on her on behalf and that of her son, O.W. and was mostly related to custody proceedings in Denmark. M.W. argued that the Danish authorities failed to adequately protect her and her son from violence and harassment by O.W.’s father, and that the custody proceedings had been biased against her as a non-national. The Committee dismissed Denmark’s inadmissibility argument for the son’s victimhood status as follows:
The Committee notes that article 2 provides that communications may be submitted by or on behalf of individuals, under the jurisdiction of a State party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State party. The Committee also notes that article 16 (1) (d) of the Convention refers to “children” generally, which means that it applies equally to boys and girls. The Committee takes the view that the present communication may be brought on behalf of the author’s child, with regard to whom the author should have equal rights and responsibilities as a parent under article 16 (1) (d). (para 8.3)
The Committee thus concluded that Denmark had violated the rights of M.W. and her son under Articles 2(d), 5(a) and (b) and 16(1)(d) of CEDAW.
The Committee’s confirmation that individuals can bring claims on behalf of their children, regardless of the child’s gender, is quite significant. Still, the decision raises questions as to whether certain articles of CEDAW that do not refer solely to women, such as Article 5(a), might allow for complaints from males as direct victims – as argued by Rosenblum. Given that Article 2 of the CEDAW Optional Protocol only provides a generic rule for who may submit an individual communication and makes no reference to sex or gender. It could, therefore, be argued that it is possible for males to eventually bring claims before the Committee.
The wording of the Convention, although a reflection of the binary gender system, could be used in an inclusive manner that welcomes different expressions and performances of gender. It could be argued that CEDAW should first be used effectively to address the specific needs of ‘women’, whoever they may be, and thus offer protection to a broader population of females who fall victim to gender-based violence. In light of such an approach, granting victimhood status to males before the Committee may be perceived as an improbable idea that undermines the women-specific protection approach of the Convention. Yet an extension of the protection regime of CEDAW could keep many children, partners or husbands safe against the gender-based violence that they directly or indirectly confront. If the Committee could successfully establish a delicate balance between the risks of gender blindness and the benefits of an extended protection regime, the Committee could realize the original intention of CEDAW—to attain gender equality.
In the meantime, it is worthwhile waiting to observe how an international human rights treaty body will address the developments in gendered approaches to law and their effects on its own scope of protection.
[i]In another case, NQ v. UK the Committee found no violation. The case was omitted here because the admissibility decision was published separately and is not available online.
[ii] The admissibility decision was not available on the UN website and an unofficial version was retrieved from a website set up by the author of the communication. There may have been certain changes: https://sites.google.com/site/thedanishtrap/un-cedaw/case462012#TOC-24.11.2014-Decision-fifty-ninth-session – accessed on 25 January 2017)