last updated December 2014
In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women's Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.
Defining Discrimination against Women
Legislation should broadly define discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” (See: Convention on the Elimination of All Forms of Discrimination against Women, Article 1) Legislation should also recognize that widows are entitled to freedom of movement, to access to social, educational or health services, to choose her residence, diet, attire and lifestyle, as well as equality with men in terms of citizenship. (See Model Charter for the Rights of Widows, Art. 4) In addition, legislation should protect widows living with or affected by HIV/AIDS by prohibiting discrimination based on HIV/AIDS in the sale, lease, inheritance or disposition of other property. (See: Canadian HIV/AIDS Legal Network, Respect, Protect and Fulfill: Legislation for Women’s Rights in the Context of HIV/AIDS, Vol. Two: Family and Property Issues, 2009, §5-7)
Promising Practice: On September 12, 2010, a constitutional referendum was held in Turkey, and the results are codified in Law 5982. Several amendments to Turkey’s 1982 Constitution were approved, including to Article 10, “Equality Before the Law.” The revised Article 10 clarifies that measures taken to ensure the equality of men and women “shall not be interpreted as contrary to the principle of equality.” This change removes an important barrier to the passage of legislation focused specifically on women, namely the argument that such legislation is discriminatory on its face because of its gender-based focus.
Specific Forms of Discrimination against women and widows
Discrimination against Women with Respect to Marriage
(See: CEDAW, General Recommendation 21, Equality in Marriage and Family Relations)
Illustrative Example:
The Legal Capacity of Married Persons Act 9 of 2006 in Lesotho abolished multiple discriminatory practices that had been placed on women in marriage. Specifically, the law repealed the notion of “marital power”, which granted husbands power to control his wife’s actions:
Part II. (3) The following restrictions which the marital power places on the legal capacity of a wife are removed
(a) entering into a contact;
(b) suing or being sued;
(c) registering immovable property in her name;
(d) acting as an executrix of a deceased’s estate;
(e) acting as a trustee of an estate;
(f) acting as a director of a company:
(g) binding herself as surety; and
(h) performing any other act which was restricted by any law due to the marital power before the commencement of this Act.
The law specifically made the repeal of marital power applicable to common law marriages and customary marriages.
CASE STUDY – Discrimination in Respect to Citizenship and Residence Laws
To ensure full equality for women and men in marriage, legislation should recognize that widows are entitled to freedom of movement, to choose her residence, as well as equality with men in terms of citizenship. (See Widows for Peace Through Democracy, Model Charter for the Rights of Widows, Art. 4) The rights of women and widows to citizenship has been an issue around the world. Kenya’s Constitution 2010 specifies that “citizenship is not lost through marriage or the dissolution of a marriage.” (Art. 13(3))
In The Attorney General of the Republic of Botswana v. Unity Dow, 103. I.L.R. 128 (Bots. Ct. App. 1992), the plaintiff Unity Dow, a female citizen of Botswana, successfully challenged the legitimacy of Botswana's Citizenship Act on the constitutional ground that the Act unlawfully discriminated against her on the basis of her gender. Under Botswana's Citizenship law, citizenship was denied to the children of a female citizen married to a foreigner. The court of original jurisdiction found, and the appellate court upheld, that the Citizenship Act in this respect unconstitutionally discriminated against women. Significantly, to make this finding, the court rejected the argument that the absence of gender or sex as protected classes in the Botswana Constitution was an intentional reflection of the patriarchal nature of the society. In reasoning to conclusion on this point, the lower court cited to a variety of cases from around the world, including the United States Supreme Court case South Dakota v. North Carolina, 12 U.S. 268 (1940), in which Justice White wrote that all of a Constitution's provisions “bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument.”
The United States recently repealed a law that had a negative impact on the immigrant spouses of US citizens. Before the law was changed, immigrant spouses of US citizens could be deported from the United States upon the death of their citizen spouse. The so-called “widow-penalty” was ended in 2010 with passage of new immigration legislation. Watch a video about the impact of the “widow-penalty” in the US.
Discrimination against Women with Respect to Children
Discrimination against women in land and property rights
Tool: Women, Business and the Law – Using Property is a World Bank database of legal information on women’s access to and use of property by country, including the marital property regime, the joint titling regime and any applicable presumption of joint titling, inheritance rights, as well as women’s rights over moveable and immovable property. Data is available for most countries in the world.
Discrimination against women in inheritance
(See: CEDAW, General Recommendation 21, Equality in Marriage and Family Relations.)