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ADHOC COMMITTEE ON
AN INTERNATIONAL CONVENTION

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Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities
New York, 16-27 June 2003

Panel II: The Principle of Non-Discrimination and Equality from Disability Perspective: Critical Issues concerning Special Measures and Disability, June 17

WOMEN AND DISABILITY

by Rangita de Silva de Alwis1

The Nobel prize winning economist Amartya Sen argues that nothing is as important today in the political economy of development as an adequate recognition of political, economic and social participation and leadership of women.

My inquiry focuses on how gender perspectives and gender analysis can inform the principles of non discrimination and equality and the implications of this analysis for elaborating a convention on the rights of persons with disabilities. My inquiry keeps in mind that there is no single woman's voice or single stereotypical image of woman. Women fall into multiple categories of race, religion, class, ethnicity, sexual preference and handicapping conditions.

Firstly, why is it important to acknowledge the rights of women with disabilities and make sure they are not absent from the law making or treaty making process?

Women and children are more often than men the victims of poverty and malnutrition which can result in disability. Disability is often the result of inadequate maternity care, combined with poor nutrition, and unwanted and uncontrolled fertility against a background of poverty and lack of education. Health care and educational opportunities which can prevent disabilities are routinely denied to women in many countries. Women are also more often than not the care givers to persons with disabilities. However, women with disabilities face double and triple discrimination, neglect, humiliation and stigmatization. The disadvantages women with disabilities face are amplified by factors such as race, poverty, minority and social status.

On the other hand, women whether able or disabled, face discrimination on a daily basis in every country in the world. This includes discrimination in the enforcement of laws, denial of equal opportunity in education and employment, exclusion of women in political representation, deprivation of reproductive rights, cultural and social norms that reinforce female stereotypes, developmental policies that have led to the feminization of poverty and physical violence to subordinate women.

While even women without manifest disabilities face discrimination, in certain communities that devalue women, a woman is often disabled because of her gender. For example, certain biological characteristics such as menstruation, pregnancy and lactation are considered disabling physical conditions in the laws and regulations that govern the marketplace and have led to the perception that women are unfit for activities demanding higher physical or mental capabilities.

In several countries around the world the right to equality before the law has been rendered useless by the "wife obedience" mandate. In some countries a wife must not leave the conjugal home without her husband's permission. In other countries marital property is controlled by the husband thus preventing the free movement of women both able and disabled. Discriminatory laws such as these can cast a double burden on women with disabilities which in turn can result in heightened lack of access to food, health care and maternity care, social services and education. Further, cultural norms which lead to genital mutilation and deprivation of food for the girl child and woman can lead to disability at worse and malnutrition at best. On the other hand, the control of reproductive capabilities of women with disabilities still continues to be sanctioned if not legally then culturally.

Gender based violence in the public as well as the private sphere is another risk factor for women and especially women with disabilities. Apart from the fact that subjugation of women is often considered a spoil of war, wife beating too has been sanctioned throughout history in varying cultures. For example, under the Common Law, the rule of thumb was that a man did not abuse his wife so long as he used a rod not thicker than a thumb. Till the 1970s in the US, batterers were not only exempt from the law, there was hardly any public acknowledgment of wife beating and it was given name to as a crime only in the 1970s. In some countries evidentiary requirements make it difficult to prove the crime of rape while in other countries marital rape is explicitly excluded from rape laws. While in certain communities laws themselves sanction assault on a wife by a husband for purposes of correcting a wife, in most communities assault on women in the family is routinely ignored. A disproportionate number of women who are victims of sexual abuse are women with disabilities. While the reported cases constitute the tip of the ice berg, the rape and sexual assault and harassment of women with disabilities are often rendered invisible.

Thus as women we are intimately familiar with the experience of discrimination and we bring this experience of discrimination to bear on lawmaking.

The Possibilities of Gender Analysis

Next I will look at the transformative possibilities of gender analysis and the application of this in the context of disability.

Gender analysis has two dimensions. The first involves unmasking the biases in the law and laying bear those biases. This methodology helps expose the way in which the law presently fails to reflect the range of experiences and values of people with disabilities.

The second dimension of gender analysis is its reconstructive effort which is used to reconstitute law and legal institutions so that they incorporate the lived experiences of the marginalized including persons with disabilities.

In law, as in political life, much depends on who controls the influential discourses. The founding theorists of many laws tend to be able-bodied males and tend to ignore unequal distribution of power in family and public life. What law is or what it ought to be is usually determined based on this standard and tend to reflect primarily able-bodied male values.

In the process of lawmaking, voices of persons with disabilities have been largely absent. The result of this exclusion from the process of making laws is that legislation and judge made law have been developed mainly by able bodied men, with their problems and concerns in mind and therefore reflect a narrow and cabined view of the world. These stereotyped views ignore the realities of the lives of those who do not conform to the norm.

Bias arises when the law fails to take into consideration perspectives and narratives of persons with disabilities. Even though this bias is pervasive in all areas of the law, a vivid example of this is the standard of reasonableness used in criminal law or tort law which is generally based on the experiences and conduct of the reasonable man.

All laws should be examined for stated and unstated biases against persons with disabilities. Even facially neutral law should be reviewed for disparate impact. For example, protectionist provisions in the laws must be examined for inherent dualities and contradictions and the cause-and effect relationship between protective laws and bias in the marketplace especially in the hiring of persons with disabilities. Paternalistic law and practices have the power to reinforce the construct of persons with disabilities as weak and fragile. The focus of laws should be more on empowerment than on protection. An overemphasis on the protection of, rather than equal opportunities for persons with disabilities perpetuates stereotypes and creates additional obstacles for persons with disabilities competing in a market economy.

Once the laws are examined for bias, the second step in this analysis is to re vision and re conceive them. In doing so especial emphasis should be given to the following key factors:

1)   Rights

A human rights approach has the power to transform the needs of persons with disabilities into enforceable rights. This is true of other groups too. For example, the international women's rights movement has framed this struggle in rights based language and have achieved some success in national reform projects. Although the history of sex equality is not an enviable one, women in the United States and all over the world have achieved some progress in fighting for their rights through the use of equal protection guarantees to strike down discriminatory laws and practices. At the same time, feminists argue for a new model of substantive equality which combines a strong/anti discrimination framework with gender neutral supports for caregivers. Substantive equality requires the accommodation of differences and equality of result.

Secondly, it should be possible to invoke these rights in a court of law in order to challenge disability discrimination. It is important to charter a litigation strategy to challenge the disparate treatment of persons with disabilities in the public and private sphere. This litigation project should challenge the systematic exclusion of the disabled from positions of political leadership, professional organizations, access to health care, education, discrimination in housing, participation in development and the marketplace The litigation project should also question the differential treatment of women with disabilities, especially differential treatment of pregnant mothers with disabilities.

2)   Process

Secondly, process is central to gender analysis both for its transformative potential and for the fact that it profoundly affects results. For example, in the process of sharing insight, participating in group discussion or in political activity, consciousness and identity can be transformed. Similarly, the process of litigation, of asserting claims, can be an empowering process while delivering individual results.

Process is also important in treaty making. The process by which the Convention is drafted should be participatory and ensure meaningful representation of the most marginalized of the disability community. Too often women are invisible in the law making process. It is only when women with disabilities are engaged in the process and can question why a certain issue is silent on matters deeply concerning to women can laws truly reflect the lived experiences of women with disabilities.

This process must also recognize and capitalize on the opportunities for capacity building, education and awareness raising on disability as a human rights issue. Any attempt to rush this process will result in under utilization of treaty mechanisms.

The national reporting requirements too should be seen as a participatory process which will help state parties to achieve the set goals of the Convention by introducing specific guidelines and permitting the consideration of "shadow" reports by non governmental organizations, a more participatory reporting process can be built.

3)    Challenge the Public/Private Divide

One of the major achievements of the women's rights movement has been the dismantling at least in theory of the artificial dichotomy of the public and private, and exposing how political structures affect the private and how the personal informs the political. For example, when a person with disabilities needs a caregiver and lacks one, it is no longer a private matter. It reflects the political structure that has failed to provide the necessary safety nets.

Shattering the public/private distinction as envisioned by the feminist project also includes holding the State responsible for discrimination. Similarly, States can be held liable for private acts of discrimination against persons with disabilities for the states abdication of responsibility in preventing such discrimination.

4)    Address Violence as a Cause of Disability and Examine the Link Between Poverty, Disability and Violence

Many countries have experienced prolonged periods of wars and civil unrest. This has resulted in severe physical and mental disabilities among communities. While men and women have been disabled equally by wars, women are disproportionately affected by domestic violence. The WHO has named domestic violence as one of the chief causes of severe injury to women. A disproportionate number of victims of domestic and institutional violence are women and children with disabilities.

Just as much as women's rights advocates all over the world have fought to hold the State responsible not just for violence against women in the public but for the states responsibility to prevent private acts of violence, similarly, the States duty to preserve the rights of persons with disabilities to be free of violence in the public and the private spheres should be recognized.

5)    Consciousness Raising is Essential in Order to Mainstream the Rights of Persons with Disabilities

Consciousness raising begins with the lived experiences of persons with disabilities and using those personal experiences to understand, create, and inform law and practice. Consciousness raising has also been a critical tool in the international women's rights advocacy movement.

6)    Question the Unquestioned Assumption

In gender analysis one way to bring out women's voices is to ask the "woman question". Similarly, it is important to ask the "disabled question" in questioning laws biases and questioning whether the reasonable person standard used in creating laws and frameworks cover the experiences of the person with disabilities. Feminist analysis also depends to a large extent on data analysis. Similarly, data can help target areas of subordination for persons with disabilities. Empirical evidence may demonstrate de facto discrimination and data to be used to challenge many unequal practices.

7)    Use International Law as an Aid to Interpret National Laws

The use of international law as an interpretive source in order to resolve ambiguities or lacuna in the local law by reference to universally accepted human rights principle has been very effective in women's rights advocacy. In countries where treaties are not self executing, women's rights scholars have argued that a route for directly incorporating international human rights norms into domestic law maybe through the principle of jus cogens, a subset of customary laws that are fundamental that they are non-derogable. The human rights values embodied in the UN Charter, the Universal Declaration of Human Rights, The ICCPR and the ICESCR are all elements of customary international law.

Similarly, in cases of discrimination based on disability, a cause of action can be based on the general acceptance of equality in the foundational international human rights declarations support the fact that equality in all spheres of life is a fundamental human rights norm which is non-derogable under the principle of customary international law.

In this regard, a state can be in breach of its international obligations not only if it violates human rights but if it fails to adequately protect its women and men. In this regard, the case X and Y v. Netherlands decided in 1985 by the European Court of human rights is instructive to both women rights and disability rights advocacy.
The litigation arose from an unintended lacuna in the Dutch Criminal Procedure which resulted in a sixteen year old mentally retarded victim of rape being unable to initiate criminal proceedings. The legal guardian of the victim brought the case to the Court alleging a violation of her right to privacy under the European Convention. The applicant claimed that the gap in the Dutch law amounted to a failure to protect the mentally handicapped woman's right to privacy against sexual assault. The Court agreed with the applicant that there were positive as well as negative obligations on the part of the State. The loophole in Dutch Criminal Law, while unintentional, amounted to an omission by the Dutch state, and the government was ordered to pay reparations to the victim.

Further, many countries are using the due diligence standard enumerated in Velasquez Rodriguez to persuade courts to hold governments responsible for inaction against preventing domestic violence against women. In 1996, in Raquel Martin de Mejia v. Peru, Peru was held responsible for failure to prosecute a rapist who may or may not have been a state actor. The Inter-American Commission observed that the State is obligated to make effective judicial recourse available to victims of rights violations and that recourse must be substantiated in accordance with the rules of due process. In the recent 2001 case of Maria de Penha Maia Fernandez, the Inter- American Commission stated that there was clear discrimination against women who are attacked, resulting from the inefficiency of the Brazilian judicial system and inadequate application of national and international rules. Similarly, States can be held responsible for failure to prevent discrimination against persons with disabilities.

On the other hand, a due diligence clause, in the Convention on the Rights of Persons with Disabilities, similar to the value enshrined in the CEDAW, will make these rights more visible. Also, a treaty can inform domestic human rights policy and will provide a minimum standard against which national laws can be measured. Further, given the interrelatedness of rights, a treaty on the rights of disabled persons will provide the opportunity to forge networks with other human rights movements so as to strengthen and consolidate these interrelated rights of women with disabilities, minority women with disabilities and poverty, health and environmental rights advocates.

Conclusion

Under General Recommendation 18 of the CEDAW, state parties to the CEDAW are obliged to take measures to address the equal access of women with disabilities to education, employment, health services, and social services and ensure the participation of women with disabilities in all areas of political, social and cultural life. On the other hand, it is incumbent upon all women's groups to ensure that state party reporting provides information on the situation of women with disabilities. Therefore it is important that mainstreaming women with disabilities involves networking opportunities for women with disabilities to build links with governmental and non governmental women's organizations.

Finally, a Convention on the Rights of Persons with Disabilities takes on poignant significance in the lives of all persons. For while characteristics of gender and race are immutable, there is a very strong likelihood that every one of us will be disabled in some way some time in our life.

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Notes

1. Rangita de Silva de Alwis received her LLB from the University of Colombo (Sri Lanka) and her Masters and Doctorate in Law from Harvard Law School. She is currently Director of International Programs with The Spangenberg Group, a Boston based legal research and law reform organization.

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