BY GRACE AUSTIN
Discrimination against women by laws, policies, and other legislation around the globe is still a major impediment to gender equality, despite all the progress made towards female empowerment throughout the world. These issues, according to the UN, include laws discriminating against or not protecting women from a too-early age of marriage, nationality, divorce, obedience laws, marital rape, honor killings, polygyny, employment, education, sexual harassment, and female genital mutilation. Many countries have contradictory laws that prohibit discrimination but keep exceptions for cases of “family law.” Most of the former issues fall under the heading of family law.
Family Law Issues
In some nations, like Kenya, Zambia, and Malaysia, their constitutions prohibit discrimination, but they allow discrimination in the practice of customary law and personal law, which includes marriage, divorce, and custody of children. And Uganda, unfortunately, still allows the existence of legislation and practice on polygamy, forced marriage, and bride price, which discriminate against women.
While the average age of first marriage for American women is 26.9 according to the U.S. Census Bureau, and most states require people to be at least 18 years of age, across the globe there are wide disparities in the legal ages of females versus males. For example, in the Democratic Republic of Congo (DRC), girls can marry at 15, boys at 18. In Guatemala, girls have to be only 14 years old as opposed to boys who can marry at 16. In Japan, girls can marry at 16 and boys at 18.
While the general rule in Syria is that girls can marry at 17 and boys at 18, girls can receive permission to marry at 13 (boys at 15), if they have reached puberty. These exemptions have led to girls marrying at 12 or younger, for example, in the Philippines or in Iran. A majority of early marriages, though, are in Africa.
While cultural differences abound internationally, and definitions of adults do as well, it cannot be disputed that girls of these ages are too young to marry. Early marriage keeps girls from further education and job opportunities, prevents girls from choosing their spouse and playing a more equalized role in their marriage, and can have negative health implications for them and the health and well-being of their family and children in the future. [sws_pullquote_left] “The lesson starts from home—to first get educated, so that somewhere down the road we can be independent. So when you are educated your marital status will be equal to your partner.” [/sws_pullquote_left]
Says Nepalese-born author J.S. Basnet, herself a victim of an early marriage, “I was married too young, and was physically and emotionally abused. When a person is married too young or they are unequal in the marriage, that’s where the problem is. The lesson starts from home—to first get educated, so that somewhere down the road we can be independent. So when you are educated your marital status will be equal to your partner.”
In addition to the issues of marriageable age, many women face discrimination in relation to custody of children. Many countries’ laws still see the father as the legal guardian of the child. The mother, if she can, has to fight to gain custody. In countries like the DRC, the father has paternal authority, and the mother is not permitted to have sole guardianship of her children. Hindu and Muslim law also see the father as the legal guardian of the child. In countries like Malaysia which recognize parental rights by religion, these laws continue to discriminate against women and mothers.
And paternal authority often carries over into other issues. Obedience laws, which often prohibit a woman’s right to movement, keep women discriminated against in many nations throughout the world. The husband is given the status of “head of household,” which curtails many freedoms like where a woman can live, ability to move freely, whether a woman can work or study, and more. Such laws are prevalent in Niger, Pakistan, Egypt, Cameroon, and Sudan.
Fox Rothschild Partner Richard Cohen describes the reasons behind the continued strength of obedience laws.
“In a traditional, or a closed society, for example, some of the countries today we call the “third world,” or where there is fundamentalism present, any attempt to change or break traditional cultural models, especially if it’s done very rapidly, results in a death grip on the old ways. Whenever that veneer of paternalism is ripped away, those that are the most threatened try to regain the status quo,” says Cohen.
Within marriage there are other issues, like nonconsensual sex or rape. The legal systems of Kenya, Ghana, Ethiopia, and Nigeria permit nonconsensual sex during marriage. In addition, The Centre for Reproductive Rights names Cote D’Ivoire and Benin as nations that do not recognize rape during marriage. Nepal only recently changed their laws on marital rape. In 2002, the Forum for Women, Law and Development (FWLD) brought a case to the Nepal Supreme Court invalidating the provision of the criminal code that allowed men to rape their wives. The Court ordered the government to outlaw marital rape, although the penalty was set at only six months in jail.
Dr. Csilla Kollonay Lehoczky, professor of law at Central European University, explains the historical background of nonconsensual sex in marriage.
“It is true that marital rape has been an exemption from criminal punishment of rape up to the latest times, even in countries with a developed legal system. It originated historically in part from the perception of women as property of the man (first of the father and later in marriage, which was more of a sales contract between the father and the husband than a freely consented relationship between the spouses), and therefore at free disposal for his use,” says Lehoczky. “[Although it must be said that] the acknowledgement of the personal dignity, autonomy, and self-determination of all human beings does not permit treating anyone as a commodity and marriage cannot place women under the hierarchical power of the man.”
Obedience issues also include honor killings, in which someone is hired to or a family member murders a female because of behavior or alleged behavior that is perceived to bring shame on the family. Many nations have not enacted legislation to prevent these crimes, inadvertently overlooking honor killings altogether. Some countries even sanction them in certain cases. In Haiti, for example, the law allows the murder of an adulterous wife by her husband.
On a related issue of marriage, polygamy, long seen as a peculiar practice of fundamentalist sects in the West, is still practiced widely in Africa, Asia, and the Arab World. Polygamy is even sanctioned by the African Union. As stated in the African Protocol on Women: “[M]onogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family, including in polygamous marital relationships are promoted and protected.” As in other cases favoring religious freedom over female discrimination, the African Union cites customs and religious rights, specifically of the Koran, for why polygamy is protected.
Divorce is much more difficult to obtain for a woman than a man in certain countries as well. While women may have to go through arduous arbitration, in Malaysia men are simply asked to pay a small fine to divorce their spouses. Similarly, in Sudan men do not have to see a judge to divorce, nor do they need a wife’s agreement—when they will the divorce, it is done. In addition, women’s rights to equal dispersement of property, if any dispersement, after divorce, are negligible. This often relates back to the value of the work women do in the home versus work men do outside of the home. For example, Human Rights Watch’s Double Standards: Women’s Property Rights Violations in Kenya notes that 95 percent of all property in Kenya are owned by men. Consequently, property ownership in Kenya traditionally passes through the male line. This goes even further to suggest that there is gender discrimination and severe inequity in property ownership in many nations.
“Owning property is, of course, an indispensible precondition for civil and economic autonomy,” says Lehoczky. “Thus the laws preventing daughters from inheritance or placing their inherited or earned property under the disposal of their husband (or father or brother) have seriously limited an improved social and legal position.”
Changes are being made. The Constitutional Court of South Africa, for example, in a landmark case outlawing primogeniture and the customary law in 2004, stated that “the principle of primogeniture … violates the right of women to human dignity … it implies that women are not fit or competent to own and administer property… Its effect is also to subject these women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of their sex and gender.” [sws_pullquote_right]“The law is a good first step, awareness of people’s rights is a second step, but until you change the attitudes of people, nothing is going to change.” [/sws_pullquote_right]
Cohen, though, points out the importance of societal, grassroots change in reducing gender disparities and discrimination. “Most of these countries have enlightened laws against [gender discrimination]. Despite that, many of these countries are still pretty backwards. The law is a good first step, awareness of people’s rights is a second step, but until you change the attitudes of people, nothing is going to change.”
Many countries that seemingly are regarded as intolerant to discrimination and advocates of gender equity still scrapple with issues of a gender pay gap, including the U.S. and much of Europe. This is despite many laws that guarantee equal work for equal pay, including the U.S.’s Lily Ledbetter Fair Pay Act.
“Labor market participation of women has the longest history of discrimination (preceding political rights and changes in family law); at the same time the removal of direct and indirect discrimination in employment seems hard and slow,” says Lecohzy. “The presence of discrimination (the ‘glass ceiling’) is reflected by the low proportion of women in executive jobs as well as in positions with highest economic rewards. The wage differences in Europe are still about 15 percent between sexes, showing the presence of discrimination even in less visible ways.”
Women also face discrimination barring them from all job opportunities. Although the U.S. recently paved the way for female soldiers in combat, women are not allowed to be in certain positions of combat in New Zealand, Australia, the U.K., and Nepal. Most countries, however, have overturned rulings against traditionally male work that were thought to endanger women.
“Legal barriers have mostly been removed and a significant development is the removal of so-called ‘benign discrimination’ as well, i.e. lifting barriers from women to undertake hard or hazardous jobs as well. Even if this latter trend has seemed contradictory for many, international regulations have taken this approach. This includes the withdrawal of the majority of countries (including all developed countries) from ILO convention prohibiting, for example, the night work of women,” says Lecohzy. “The emphasis of protection instead has been transferred to pregnant women and women after childbirth, thereby guaranteeing both the necessary protection and equal opportunities.”
Harking back to issues of parental or spousal consent, in countries like Nepal and the DRC, there are laws prohibiting women from working without receiving consent.
Additionally, laws preventing women from working while pregnant or terminating them from their position if they become pregnant are acknowledged by human rights organizations as being discriminative.
Progress on Legal Reform
According to the UN, 173 countries now guarantee paid maternity leave, 139 constitutions guarantee gender equality, 125 prohibit domestic violence, 117 outlaw sexual harassment, and 117 have equal pay laws. There has been tremendous progress in the number of women elected to parliaments and congress, too. As of January 2011, 51 percent of the Rwandan governing body are female. Women represent 30 percent or more of the legislature in Cuba, Costa Rica, Spain, South Africa, Nepal, Norway, Sweden, Germany, New Zealand, Tanzania, Iceland, Macedonia, Mozambique, Angola, Finland, Guyana, Ecuador, Bolivia, and Argentina.[sws_pullquote_left] “Good laws that put women on an equal footing with men are necessary to protect and promote women’s rights and facilitate their full social, economic, and political participation,” says Jacqui Hunt. [/sws_pullquote_left]
The UN has proposed recommendations to improve legal and justice systems for women globally. They include supporting women’s legal organizations, using quotas to increase women legislators, increasing numbers of women law enforcement officers, training judges, and implementing gender equitable law.
As Basnet says, “Right now we need global legal reforms to be made so we can have equal rights, equal opportunities,
bring awareness to spousal abuses, and create awareness in children of abuses. I think there should be easily accessible resources, such as phone numbers where we can reach people, so we can solve [crimes and legal issues] within a [certain] timeframe and without going through a legal hassle. That’s what I think the legal reforms should be based on because we are really behind [in those issues.] There’s millions of women like us that go through hell in life, and they treat us like an object. We are not objects.”
With the help of government intervention, NGOs, and organizations like the United Nations, hopefully progress will continue to be gained in this area.
“Good laws that put women on an equal footing with men are necessary to protect and promote women’s rights and facilitate their full social, economic, and political participation,” says Jacqui Hunt, director of the London Office and head of Discrimination in Law for international human rights organization Equality Now. “Though the law on its own can’t fix the situation, it is the starting point, because laws both send a signal of the values of a society and provide the opportunity for legal redress in the breach. Legal equality gives women more of a level playing field from which to build their capabilities and realize their hopes and dreams, positively affecting development of society in general.”