For the April 2024 episode of the IGC podcast, we are joined by Mark Cassayre, Permanent Observer of the International Development Law Organisation (IDLO) to the UN and other International Organisations in Geneva, and Rea Abada Chiongson, Senior Legal Adviser on Gender at IDLO.
They explain how gender-discriminatory laws continue to impact women's and girls' lives around the world, reflect on how leaders can leverage existing legal mechanisms to address these laws, and outline practical steps for achieving gender equality in law and in practice.
TRANSCRIPT
Hannah Reinl
Hello and welcome to a new episode of the IGC podcast. My name is Hannah Reinl, and I’m with the International Gender Champions Secretariat in Geneva.
Today’s topic is “Legally equal: Challenging gender-discriminatory laws”. For that, I am joined by two true experts: Mark Cassayre and Rea Abada Chiongson from the International Development Law Organisation, or in short, IDLO.
Mark Cassayre is a Geneva-based Gender Champion and the Permanent Observer of IDLO to the United Nations and other International Organisations in Geneva since April 2021. Before joining IDLO, Mark served for over 20 years as a career member of the United States Foreign Service, with his most recent assignment being the Deputy Chief of Mission and Chargé d’Affaires at the U.S. Mission in Geneva. Mark has a master’s degree in international relations from the Geneva Graduate Institute, and a bachelor’s degree in political science and French from the University of California in Santa Barbara.
Welcome to the IGC Podcast, Mark!
Mark Cassayre
Hi, Hannah. Thanks so much. It's really nice to be here. Looking forward to the conversation.
Hannah Reinl
So am I! And you brought with you Rea Abada Chiongson, who is the Senior Legal Advisor on Gender at IDLO. With her more than 25 years of experience in the field of gender, law, development and human rights, she is IDLO’s global lead for gender work across research, policy and programming. Prior to joining IDLO, Rea was the Gender and Justice Advisor at the World Bank’s Justice Reform Practice Group and the Gender, Conflict and Fragility programme. She worked with the International Women’s Rights Action Watch-Asia Pacific where she supported strengthening global, regional and national capacities on CEDAW and other human rights treaties in more than 40 countries across various regions. In her earlier years, Rea was a staff attorney at the Ateneo Human Rights Center in the Philippines.
A warm welcome to you as well, Rea.
Rea Abada Chiongson
Thank you very much, Hannah, and it's a pleasure to be here as well.
Hannah Reinl
So, let's dive in. Mark, please help us understand: what are discriminatory laws and why is it so important that we focus on them?
Mark Cassayre
Thanks, Hannah. And I’ll just maybe start by saying as a Gender Champion and as well as working for an intergovernmental organisation that is devoted to the rule of law, this issue really is something that I take to heart personally and obviously from our organisational side. Because we do quite a bit of work in this area. But to answer your question, discriminatory laws are, simplistically said, these are laws, regulations, policies, legal frameworks that essentially deny rights to women and girls, or that treat women and girls differently from men and boys in terms of the law. And this could apply actually to all the aspects of law, whether it is constitutional, criminal, civil, administrative, across the spectrum. And just as quick examples, you could look at, for example, women often are maybe not able to open up a business or they do not have land tenure rights or title deeds. Maybe they cannot transmit citizenship or they do not have the same access to justice mechanisms that men and boys do. And I also should add though that when we talk about discriminatory laws, there are two different types: one are the direct and the other are the indirect. And the direct ones are fairly obvious. These are the ones that actually, kind of, it iss a legal act or an omission that has the purpose of treating men and women differently in terms of the law. So this could be for example, you have a different retirement age or you have inheritance rights that are unequal, it could be terminating employment based on pregnancy or marriage. So there is a host of things that are very clearly discriminatory in the law themselves.
And then you look at the second area, which is the indirect discrimination, and this could be a little harder sometimes to identify and track down, because what we are talking about here is it is not necessarily intentional or purposeful, but it has the effect of discriminating women and girls.And this can really be problematic, because I mean, we often talk about, gender neutral provisions. This is essentially legal provisions that do not distinguish between women and girls and men and boys. But sometimes they sort of give the perception of neutrality. However, they can have a negative impact indirectly. Let me just give you sort of an example of how this works. Let us say you had a woman that wants to go to the bank and obtain a bank loan for development of the property that she uses. Well she goes to the bank and the bank says, ‘ well,no, you cannot get a loan because you do not have collateral.’ And she says: ‘Qhat do you mean I do not have collateral? I have been working this plot of land, and this is where we live.’ ‘Well, but you are not the land holder. You are not the title deed holder.’ And so, you look at that and you see she has just been discriminated because she does not have this land title. But that means she cannot get a bank loan and maybe other things that she would not be able to do.
And so, you asked why it is important to focus on it. I think, it is not just the fact that these are international commitments that states have made to treat people equally and implementing human rights standards. It is also the impact. It has significant impact on women and girls, but also on their ability to contribute to development, to the prosperity of a country. It also undermines trust in government. And the impact is quite significant when we talk about the Sustainable Development Goals. The World Bank recently issued a report, and they determined that if you look at the overall cost -to women, society. in general- $160 trillion of wealth was lost due to differences in lifetime earnings between men and women. And so, I think if you want to talk about leaving no one behind, you leave no one behind by addressing discriminatory laws.
Hannah Reinl
That is really interesting, because we often tend to think of law as something that is quite abstract and removed from our lived realities. But what you are saying then clearly touches on literally every aspect of women's and girls’ lives, and also, as you pointed out so nicely, is really significant in terms of its implications for our society.
So, can you give us a little bit of a panoramic overview maybe, on how we are currently fairing or what is the status quo in terms of laws that hinder or that support women's rights?
Mark Cassayre
Well, I am always an optimist when it comes to the capacity of people to make progress. But there is a good news story to tell that if you look over decades, there has been a lot of progress that has been made. But unfortunately, I have to look back decades because over the past couple of decades we have not been doing quite as well. So, we have made progress. We can do more. So, if you look, for example, at some of the statistics that you find from various reports that have been done on this issue, nearly 2.4 billion working-age women live in economies that do not grant them the same rights as men.
And this obviously, as I have told you, has significant consequences. Moreover, when you look at the pace of reforms according to the World Bank study, the pace of legal reform is really on a 20-year slump. So, we have slowed down. We are not doing nearly what we need to do. At the current rate of progress, if you could call it that, we are at a minimum 50 years away from legal equality. But by some studies, they posit that we are actually, 286 years away from really closing the gender gaps in legal protections and removing discriminatory laws against women. We are behind the curve, we need to do more and I should also add that implementation - so even where we are making progress, the implementation of these new laws is actually lagging. So, for example there are 98 economies that actually have passed equal pay laws. That looks great, right? That is wonderful. But if you look at the details, you only have 35 of those that have actually set up measures to implement those rules. So, I think both in terms of laws themselves, but also in terms of practical implementation, we can do better.
Hannah Reinl
So, clearly there is a lot of work left to do here, especially, as you said, in closing the gap between law and implementation of the law. Rea, as a true subject matter expert, I would love for you to come in here. Can you maybe tell us more about which types or categories of laws pose the greatest challenge for repeal, for amendment, or for reform efforts?
Rea Abada Chiongson
I think as Mark has already indicated, law permeates many aspects of our lives and it continues to do so. So, we actually find discriminatory laws everywhere, in all countries and in all fields of law. But let me give you a couple of examples. Well, maybe not a couple, but a few examples.
So, I think first, we know that discrimination persists in family and personal laws. So these are the laws that are most, I think closest to many people. This governs the realm of family relations, and it is true, there are laws that cover those. So, we found laws that continued to this day to deny women equal rights with their spouses and administering, managing marital property or even selecting their family residence. They are also denied equal parental rights and responsibilities over their common children, and they are denied equal rights to inherit in the same way as men and boys. So, we still have laws that women get less of a share compared to men and boys. And we also have laws that completely deny women inheritance rights. We also have laws that still recognise the husband as the sole head of the household.
In the area of civil law, we know that laws still persist to deny women the ability, for example, to apply for a passport without permission of their husbands. We also have laws that place restrictions on women's physical mobility. So, this means women cannot move independently on their own, and this has implications on their access to public services, public goods and even to several rights, like the right to an education, the right to health, the right of employment or the right of to access food. So, this is very important.
We also know that we have discriminatory national laws that continue to deny women the right to equally pass their nationality to their children. In almost 50 countries, we have nationality laws that women cannot confer nationality on a non-citizen spouse or acquire change or retain nationality on the same basis as men.
Labour and Social Security laws, employment laws, economic laws, also perpetuate discriminatory pay structures, divisions of labour and pension schemes and at the same time fail to recognise restrictive and unpaid burden of care that women carry at home. So, labour laws are still unable to enforce equal pay for work of equal value, hence the huge pay gap of 20%. Basically, women earn 20% less than men globally. And this is already 2024.
We also know that laws still persist that require women to obtain their husband's consent to open a business or to sign a contract. This is a challenge for women entrepreneurs in several countries. We know that men owning business outnumber women by 32%. And nearly 60% of women are employed globally in the informal economy. And again, this is an area of legal gap. We have very few laws that regulate this area of work, and women are largely discriminated in this area. So, we have other laws, criminal laws that limit access to justice for women, by placing a higher burden of proof on them, reduce the value of their testimony, and allowing perpetrators of rape to marry survivors. So, this is what is known as the “marry your *rapist*” laws in many countries.
Legal gaps persist in the area of gender-based violence (GBV). In many countries, these laws are non-existent, inadequate or poorly implemented. There are no provisions for investigation, prosecution, or punishment of the perpetrators. They fail to provide protection and support services for survivors, and they do not address the various forms of violence, physical, sexual, psychological, economic. In many cases they do not cover harassment in workplace, educational, sporting establishment, public spaces, and we also know that countries do not have adequate laws in place to address online or technology-facilitated gender-based violence.
And perhaps lastly, just to make a point around constitutions. So there are constitutions in many countries that are not exempt from discriminatory provisions. So, several constitutions also contain provisions that override non-discrimination guarantees. So, in some countries we have a constitution that prohibits gender discrimination, but at the same time it exempts all laws addressing adoption, marriage, divorce, property rights and other matters of personal law from this prohibition. So, I hope this really illustrates the extent of discriminatory laws and legal gaps that continue to exist to this day and age. So, it is not true that all laws are already in place and the only challenge is implementation. We are still living in an age of discriminatory laws.
Hannah Reinl
It really helped to illustrate that. Thank you, Rea! And I do have to say this conversation with you two feels like such a good reality check, because it really reminds us of how much we have to go back to actually getting the fundamentals, the legal frameworks, right, if we want to make true on the promise of leaving no one behind.
So, if you listen regularly to the IGC podcast, you know that we really like to end on a positive note. So maybe another question for you,Rea, what are some of the more promising approaches and the practical entry points that you see for achieving gender equality in law and in practice?
Rea Abada Chiongson
Yes, we do want to end on a positive note, but also on a call for action. Let me highlight four points.
The first one is we really need to review and assess the legal frameworks. So, conducting comprehensive or thematic legal assessments is a crucial first step in identifying discriminatory provisions and gaps in existing laws. So legal reviews uncover these gaps and suggest ways that these gaps can be addressed, and they also propose potential legal solutions that can be taken up by a variety of actors. So, for IDLO we work together with UN Women and national partners to undertake this review of legislation, and it is aimed at repealing discriminatory laws, but also adopting new laws to address justice gaps for women. And I do believe that in our own way, we need to also scrutinise and assess forthcoming laws, or what we call bills, but also existing laws that are already in place.
I think the second point I wanted to make is around creating strategic partnerships with diverse stakeholders, including civil society, academia, international agencies and women's organisations that can amplify efforts on discriminatory laws and ensuring that we have a gender-responsive legal framework. So, in our experience, working on discriminatory laws and creating legal frameworks means we have to work also outside of the legal space. So, this is not simply a space where of course it is critical for us to work with legal actors, parliamentarians, Ministry of Justice, judiciaries, but it is important to also speak and amplify the voices of women and a diverse group of women who actually experience discrimination on the ground. We are very fortunate to actually be working in this diverse space as well. We are part of a multistakeholder initiative called “Equality in Law for Women and Girls by 2030”, a multistakeholder strategy for accelerated action, where the aim is to address the legal needs of over 50 million women by 2030 in 100 countries.
Third is collective action as a powerful strategy for reform.So, working on legal reform is not possible unless we have mobilised a critical mass for reform. So, this is where we need to work with women's organisations as an effective pathway to end discrimination.
And I think my fourth point is: we need to support this advocacy by financing the work on discriminatory laws. So, this is a call for action, not just to support International Organisations around this, but more importantly, women's organisations and civil society organisations which are working in this area.
Hannah Reinl
Thank you, Rea. So, let me just try to recap this recipe for success. We have, as the first point, reviewing, assessing and scrutinising the existing legal frameworks. As a second point, creating strategic partnerships. Third, mobilising a critical mass for collective action for reform. And fourth, supporting this important advocacy work by financing feminist civil society. Did I get this right?
Rea Abada Chiongson
Yes, you did, Hannah.
Hannah Reinl
Perfect. Mark, you said earlier in this episode that you are an optimist, so I am also really counting on you here. Is there something that you would like to add and in particular, do you have any calls to action for your fellow Gender Champions?
Mark Cassayre
Absolutely! There is so much that can be done. Let me just start by saying, talk about it. The fact that we just had this conversation is important. But also talk about it and understand that the law is your friend. You can use the law to make enormous changes to the way people interact and promote human rights, advancing climate action and looking at how you can have an impact on humanitarian affairs and the impact that has on people. And if you really talk about it and think about it, there is a vast wealth of opportunities to make a difference.
Maybe take a quick look at a couple of Geneva mechanisms that I would point to. First of all, Gender Champions can certainly think about using the Universal Periodic Review of the Human Rights Council. As Rea mentioned earlier, IDLO has been partnering with countries to do full legal reviews to understand where there are discriminatory laws and what can be done to change them. Well, Champions can make recommendations at the Universal Periodic Review that other countries undertake such legal reviews. It is a first step to understanding where the problems are and then taking action on them.
Or another alternative at the Universal Periodic Review would be for governments to make recommendations on specific laws in countries. These can be very effective way to have a country pay attention to something that maybe they have not necessarily focused on. Similarly, more broadly, the Human Rights Council, whether it is through its resolutions, its side events, its debates, provide lots of opportunities for awareness raising, also for showcasing successes, because there really are some great efforts that are being made around the world to try and address these issues. So, to use that platform. Work with the special rapporteurs. There could be calls to have additional work there and collaboration on this issue. Treaty bodies, similarly, they have not only general recommendations, but also a lot of interactions here in Geneva and Champions can take advantage of those to raise these issues of discriminatory laws.
I would also suggest that Champions take a look at various International Organisations and UN agencies and see what kind of work they are doing on the legal front. I have to be honest as working for an organisation that focuses on the rule of law and how you can improve access to justice, it is quite interesting to see how often this topic falls between the cracks. And I think, I know personally from my experience and work around the world where if you can actually have a legal angle, legal assistance, legal aid, legal action, you can really change things fairly quickly.
So, support those organisations that are doing that work. Make sure there is advocacy on that front. I mentioned IDLO’s work on reviewing discriminatory laws to eliminate them, but also there are things, UNHCR, for example, and their work on statelessness is also looking at how they can ensure that nationality laws do not discriminate in transmitting citizenship. So, there are all kinds of ways and different organisations that I think provide enormous opportunities.
So, my bottom line is you know be curious, ask questions, learn more, get involved, see how you can use these legal tools as a fantastic way to take advantage of these opportunities to improve people's lives and also help us all achieve our development goals and reach the needs that we have. Not just in Agenda 2030, but beyond.
Hannah Reinl
So, some very practical avenues for action here, dear Champions. Mark, Rea, thank you so much for joining us today, for sharing on the important work that you do and for helping us understand how we can balance the scales to create a more equal world. Thank you.
Mark Cassayre
Thank you, Hannah.
Rea Abada Chiongson
Thank you, Hannah.