Access to Justice: A Facet of Gender Equality
In its last session, the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) released its thirty-third General Recommendation on women’s access to justice. This blog has detailed the developments around the world that have significantly impeded the individual’s right to access justice. Given that both men and women are disadvantaged by cuts to legal aid and increases in court filing fees, the gender dimensions of access to justice are not always readily apparent.
The CEDAW Committee provides a sophisticated and comprehensive assessment of how gender inequalities impact women’s access to justice. Deeply entrenched legal structural obstacles and discriminatory gender norms prevent women from accessing justice. The gender pay gap and women’s concentration in low-paid, part-time, informal and precarious work creates significant economic barriers to accessing courts. Rules of evidence that accord inferior status to the testimony of women or require corroboration discriminate against women by demanding they ‘discharge a higher burden of proof than men in order to establish an offense or seek a remedy’ (para 25(iii)). Justice officials, including police, prosecutors and judges, can ‘adopt rigid standards about what they consider to be appropriate behaviour for women and penalise those who do not conform to these stereotypes’ (para 26). Law and legal remedies may be slow to adapt to new ways women experience disadvantage. The CEDAW Committee notes the ‘obstacles faced in collection of evidence relating to emerging violations of women’s rights occurring online and with the use of new social media’ (para 25(vii)). It is imperative that women’s access to justice be conceptualised as an issue of gender equality under CEDAW.
The commitment to guarantee substantive equality in all areas of life (Article 2 of CEDAW) means there must be effective institutions to protect women against discrimination. The obligation to modify gender stereotypes (Article 5(a) of CEDAW) requires the state to address socio-cultural barriers that prevent women from claiming their rights.
Women’s inequality in accessing justice is inherently multi-faceted and cannot be solved by simplistic solutions. In General Recommendation No. 33, the CEDAW Committee demonstrates its keen understanding of the complexity of women’s disadvantage and continues to develop a rich conception of substantive gender equality.
Ensuring women’s equal access to justice requires the state, amongst other things, to:
- ‘Revise the rules on the burden of proof to ensure equality between parties in all fields where power relations deprive women of their chance for a fair judicial treatment (para 15(g))’.
- Increase the equal representation of women in the justice system.
- Provide gender sensitive means-tested legal aid.
- Waive court costs and provide transportation so low income women can access courts.
- Ensure access to the internet so women can be aware of their rights and can connect with NGOs who can assist them through the process of claiming their rights.
- Take positive action through online social media to modify discriminatory gender norms that underpin inequality in accessing justice.
- Promote a dialogue on the impact of gender bias in the justice system
- In cases of violence against women, provide crisis centres, shelters, and counselling services.
General Recommendation No. 33 also makes two other important contributions to women’s human rights. First, the CEDAW Committee has had an ambivalent relationship on the right to access an abortion. In the past it has only implicitly referred to abortion or limited the right to accessing therapeutic abortions. In its latest Recommendation, the CEDAW Committee explicitly requires states to ‘decriminalise behaviour that can only be performed by women, such as abortion’ (para 51(l)). This specific reference to allowing access to abortion, without limiting it to therapeutic abortions, is an important development in women’s reproductive rights.
Second, similar to the Working Group on Discrimination Against Women in Law and Practice, the CEDAW Committee firmly holds that when religious, customary, indigenous and community justice systems exist, the state has an obligation to ensure that all components of pluralistic justice systems respect, protect and fulfil women’s rights (para 62). This is crucial and sends a strong message that religion, custom or culture cannot trump the state’s commitment to realising gender equality.
The CEDAW Committee in General Recommendation No. 33 provides meaningful guidance to states on how to ensure women are able to access justice and ‘optimize the emanicpatory and transformative potential of law.’