ABCfor Gender Sensitive Legislation ABC for a Gender Sensitive Legislation WRITERS: SILVIA SUTEU, IBRAHIM DRAJI AND SALSABIL KLIBI This handbook has been produced with the financial support of Sweden. The contents are the sole responsibility of the EuroMed Feminist Initiative IFE-EFI and can under no circumstances be regarded as reflecting the position of Sweden. EuroMed Feminist Initiative IFE-EFI provides expertise in the field of gender equality and advocates for women’s universal human rights as inseparable from democracy building and citizenship, for political solutions to all conflicts, and for the right of peoples to self-determination. ABC for a Gender Sensitive Legislation Writers: Silvia Suteu, Ibrahim Draji and Salsabil Klibi Edited by Boriana Jonsson, Maya Alrahabi Cover and Book Design: Mihai Evoiu Copyright © 2020 by EuroMed Feminist Initiative IFE-EFI All rights reserved. No parts of this book may be reproduced without written permission of the publisher. For permission and questions contact: EuroMed Feminist Initiative IFE-EFI 20 rue Soufflot 75005 Paris France Phone: + 33 1 46 34 9280 Email: [email protected] www.efi-ife.org ISBN 978-2-9565916-5-8 TABLE OF CONTENTS FOREWORD . 7 GLOSSARY . 8 ACRONYMS . 15 PART I - Grounds And Principles Of Gender-Sensitive Legislation . 16 CHAPTER 1 WHY ADOPT GENDER-SENSITIVE LEGISLATION? . 17 Gender-sensitive legislation redresses and corrects historic and ongoing discrimination against women. .17 Gender-sensitive legislation addresses women’s different interests from men’s. 20 Gender-sensitive legislation implements and may even surpass constitutional commitments to equality and non-discrimination. 21 Gender-sensitive legislation gives effect to States’ international obligations on women’s rights. 24 Gender-sensitive legislation plays a preventive and a symbolic role, attaching the force of law to a State’s commitments to gender equality and non-discrimination . 26 Checklist Chapter 1: Why Adopt Gender-Sensitive Legislation?. 29 Selected References For Further Reading. 31 CHAPTER 2 GENERAL PRINCIPLES FOR GENDER-SENSITIVE LEGISLATION . 32 Gender-sensitive laws and constitutional democracy. 32 Gender-sensitive laws and human dignity . 34 Gender-sensitive laws and women’s autonomy. 34 Gender-sensitive laws and secularism. 35 Gender-sensitive laws and equality and non-discrimination. 36 Checklist Chapter 2: General Principles for Gender-Sensitive Legislation. 37 Selected References For Further Reading. 38 3 PART II - Content Of Gender-Sensitive Legislation . 39 CHAPTER 3 LAWS ON POLITICAL PARTICIPATION . 40 Electoral legislation that guarantees equal opportunities for women and men to access political power. .41 Legal measures that focus on political parties. 49 Checklist Chapter 3: Laws on Political Participation. 52 Selected References For Further Reading. 53 CHAPTER 4 FAMILY OR PERSONAL STATUS LAW . 54 Marriage. 55 The head of family . 60 Checklist Chapter 4: Family Or Personal Status Law . 62 Selected References For Further Reading. 63 CHAPTER 5 CRIMINAL LAW . 64 Criminal legislation should be adopted for the specific protection of women. 64 Criminal legislation should protect all women in all contexts in gender-sensitive terms . 66 Violence against women should be criminalised without exceptions, suspensions of sentences or the possibility of immunity resulting from the perpetrator’s relation to victims . 67 All forms of violence against women should be criminalised. 69 Criminal legislation should include precise and clear definitions that avoid inadequacies or ambiguities which deprive women of certain protections or enable perpetrators to escape. Rape as a case study . 71 Sweeping criminalisation of acts or practices that embody women’s autonomy should be avoided. Abortion as a case study. .74 Laws should include mechanisms for the protection and care for women victims of crimes. 76 Appropriate sanctions for crimes committed against women should be provided without exemptions or pardons for perpetrators . 78 Checklist Chapter 5: Criminal Law . 80 Selected References For Further Reading. 82 4 CHAPTER 6 LAWS ON ELIMINATION OF VIOLENCE AGAINST WOMEN . 83 Incorporating main international instruments and covenants in national legislation . 83 Why do we need a Comprehensive Law on Elimination of Violence against Women? . 87 Key Elements of a Comprehensive Law on Elimination of Violence against Women. 88 Mechanisms for the protection of women victims of violence. 96 State strategies and mechanisms to prevent violence and accompany the process of law enforcement . 100 Checklist Chapter 6: Criminal Law . 101 Selected References For Further Reading. 103 CHAPTER 7 LABOUR LAW . 104 Equal access to the job market. 104 Equal pay and equal benefits entitlements. 109 Discrimination and sexual harassment in the workplace. 112 Maternity, paternity, and parental leave. 115 Care work and domestic work . 117 Gender stereotypes and feminised professions. 119 The feminisation of poverty, especially in contexts of crisis and austerity. 120 Checklist Chapter 7: Labour Law . 123 Selected References For Further Reading. 125 CHAPTER 8 HEALTH LAW . 126 Access to safe and legal abortion . 126 Sexual health education and access to contraceptives. 130 Access to assisted reproductive technologies and surrogacy. 134 Forced sterilisation. 136 Checklist Chapter 8: Health Law . 138 Selected References For Further Reading. 140 5 CHAPTER 9 LAWS GOVERNING EDUCATION AND THE MEDIA . 141 Education Law. .141 Media Laws . 150 Checklist Chapter 9: Education and Media Laws . 159 Selected References For Further Reading. 161 CHAPTER 10 GENDER-SENSITIVE TAXATION . 162 The problem. 162 Basic principles for gender-sensitive taxation. 162 Solutions towards gender-sensitive taxation . 163 Checklist Chapter 10: Gender-Sensitive Taxation. 165 Selected References For Further Reading. 166 PART III - The Implementation Of Gender-Sensitive Laws . 167 CHAPTER 11 GUARANTEES FOR THE IMPLEMENTATION OF GENDER-SENSITIVE LAWS . 168 Constitutional review of the content and implementation of the law. 169 The independence, impartiality, and gender-sensitivity of the judiciary . 170 Legal assistance and removal of obstacles to women’s access to justice . 173 Gender-sensitive training of law enforcement agencies . 177 Additional structural reforms . 180 Checklist Chapter 11: Guarantees for the Implementation of Gender-Sensitive Laws. 183 Selected References For Further Reading. 185 6 FOREWORD For a decade EuroMed Feminist Initiative has strived to provide the space for women’s rights activists and gender experts to build and share gender-sensitive tools and contribute to the building of democratic societies. At the beginning of 2016 as a result of collaborative work in the Euro-Mediterranean region we published an ABC for a Gender-Sensitive Constitution, which opened with the following preface: “Indeed, all societies and political systems are framed and shaped by discriminatory patriarchal values and structures, as well as social and cultural attitudes, which pose significant barriers to women’s acquisition and enjoyment of their fundamental human rights.” These same words are still relevant to describe the situation today. In the past years, the link between constitution and legislation has been on the agenda of many of our meetings. A democratic constitutional system does not in itself guarantee women’s equal participation in public affairs, unless this system specifically incorporates gender-sensitive measures to include women as full citizens. Thus, gender-sensitive laws are required based on five principles: constitutional democracy, human dignity, autonomy, secularism, equality and non-discrimination. These principles play a vital role in transforming constitutional objectives into practical goals and outcomes. All political processes are framed by patriarchal traditions that threaten the ideals of a truly representative and inclusive system. In other words, the active contribution of women in relation to social change in peaceful times or the protection of the general interest of the community during conflicts have been given no place in political processes. The present context highlights with greater acuity the crucial role played by women’s rights activists in political transformation processes and the major force they represent for democratic change. Raising public awareness on women’s rights and gender equality must go together with addressing discriminative legislation. The ABC for a Gender-Sensitive Legislation aims to bring insight, raise awareness, and stimulate debate on the concept of democracy alongside gender mainstreaming. It strives to become a mechanism of change and a reference for legislators and constitution drafters, lawyers, practitioners, students, as well as human rights activists, grassroots organizations, and local communities. Furthermore, the ABC intends to be a useful tool for journalists, teachers, students, and indeed any member of the broader public who takes an interest in legislation making. We hope that this handbook as well becomes a valuable reference in educational and institutional curricula in all countries in the Euro- Mediterranean region and a resource for students of law and politics. Paris, November 2020 Lilian Halls-French Co -President EuroMed Feminist Initiative 7 GLOSSARY Affirmative Action: Deliberate measures and actions adopted to improve the rights, opportunities and access to resources and responsibilities of people socially structurally disadvantaged in order to compensate