GENDER, WOMEN AND GIRLS

The Preamble of the UN Convention on the Elimination of All Forms of Discrimination Against Women (UN CEDAW) refers to ‘the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism’, as essential to the full enjoyment of the rights of men and women. However, none of the operative provisions of the Convention then recognise women’s intersectional identity, which has been criticised by commentators.¹⁸⁸ The Committee on the Elimination of Discrimination Against Women (CEDAW) has in its practice identified many groups to whom the Convention extends.¹⁸⁹ In that regard, it has made ‘repeated references to intersectional discrimination’, drawing to the attention of States Parties that ‘women of a minority, race or ethnicity disproportionately live in poverty’ among other aspects.¹⁹⁰ Its General Recommendation 30 on women in conflict prevention, conflict and post-conflict situations, observes: ‘During and after conflict specific groups of women and girls are at particular risk of violence, especially sexual violence, such as … women belonging to diverse caste, ethnic, national, religious or other minorities or identities who are often attacked as symbolic representatives of their community’.¹⁹¹

More specifically, CEDAW’s most recent GR 39 is addressed to the rights of Indigenous women and girls, noting that the Committee has ‘an obligation to address the effects of colonialism, racism [and] assimilation policies’.¹⁹² It draws on UNDRIP as ‘an authoritative framework for interpreting State party and core obligations under the Convention on the Elimination of All Forms of Discrimination against Women’.¹⁹³ GR 39 relates only to Indigenous peoples, and CEDAW could also articulate its mandate in relation to minorities. The UNDM could then be considered an authoritative framework for understanding UN CEDAW in terms of its minority rights obligations. As emphasised by CEDAW member Dubravka Simonovic at the inaugural session of the UN Forum on Minority Issues, the Convention provides ‘a consistent human rights framework for the protection of all women and girls including women and girls belonging to minorities’.¹⁹⁴

CEDAW regularly raises minority aspects of its mandate in concluding observations to State Party reports. In recent sessions, it noted in relation to Brazil ‘[t]he systematic underpayment of teachers belonging to minority groups, in comparison with their peers, resulting in the low representation of teachers from diverse communities in the education system.’¹⁹⁵ It stated to Montenegro the need to promote the importance of girls’ education at all levels, including secondary and higher education, ‘with a focus on women and girls belonging to ethnic minorities’.¹⁹⁶ It noted with concern in the Central African Republic ‘[t]he barriers faced by women belonging to religious minorities and by Indigenous and nomadic women in accessing birth registration and birth certificates for their children and obtaining and identity documents.’¹⁹⁷ It underlined in Turkmenistan ‘reports of discrimination, harassment and hate speech against non-Turkmen women, who are also barred from working in the public sector’.¹⁹⁸ The Committee has at times offered extensive recommendations in relation to minority or Indigenous women, for example in relation to Guatemala:

‘The Committee notes with concern that Indigenous women, Garifuna women and women of African descent, who account for 44 per cent of the State party’s population, face intersecting forms of discrimination, including economic and social inequalities. It is concerned about cases of forced evictions of Indigenous women and women of African descent from lands traditionally occupied or used by them and the exploitation of those lands by private, non-State actors.’¹⁹⁹

The Committee cited GR 39 in recommending that the State party protect Indigenous women, Garifuna women and women of African descent from illegal occupation and forced evictions from lands traditionally occupied or used by them. It called on the State Party to strengthen procedural safeguards against forced evictions and provide for adequate sanctions and reparations, ensuring that women participate equally in decision-making processes regarding the use of traditional lands.²⁰⁰ Although coming under the rubric of GR 39, it may be noted that these recommendations apply also to women of African descent and thus extend to minority as well as Indigenous women in Guatemala.

CEDAW has a growing jurisprudence with over 60 decisions on the merits to date which, while analogous to CERD’s body of caselaw, was compiled in a much shorter timeframe of around 20 years. Some of these decisions have engaged issues of minority rights intersecting with gender. Thus, in S.B. and M.B. v North Macedonia (2020),²⁰¹ the authors were nationals of Roma ethnicity whose complaint concerned denial of access to gynaecological services by a private healthcare facility based on their ethnicity. They submitted that the difficulties they faced were ‘attributable to prejudices and discrimination against Roma by healthcare professionals working in gynaecological practices in the city of Skopje’.²⁰² In an important finding upholding the complaint, the Committee observed that discrimination against women based on sex and gender ‘is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, … caste’.²⁰³ The Committee further remarked on how Roma women ‘systematically face stigma in their access to gynaecological services’.²⁰⁴ It held that Article 12 in the field of healthcare had been violated.

The issue of forced sterilization in an Indigenous context arose in Maria Elena Carbajal Cepeda et al v Peru (2024).²⁰⁵ The case involved four victims of forced sterilizations performed between 1995 and 2001, which the authors noted constituted a crime against humanity when widespread and systematic in line with Article 7(1)(g) of the Rome Statute of the International Criminal Court.²⁰⁶ In this time in Peru, more than 300,000 women, mostly Indigenous, were sterilized without their consent, especially in low-income and rural areas of the State party.²⁰⁷ The complaint described this as ‘a systematic and generalized attack against rural women of peasant or Indigenous origin, and that the policy resulted in the nullification and substitution of their reproductive autonomy.’²⁰⁸ It quoted also from the UN Special Rapporteur on Torture, that ‘[t]argeting ethnic and racial minorities, women from marginalized communities and women with disabilities for involuntary sterilization …is an increasingly global problem.’²⁰⁹

The Committee concluded that the State party had failed to act with due diligence to ascertain the facts related to the sterilization of the authors, and that it had not yet implemented a policy of comprehensive reparations. As a result, it found a violation of the general obligation of Article 2 read in conjunction with a number of other provisions. CEDAW took note that forced sterilization is a crime against humanity under the Rome Statute, although it emphasised that ‘a conclusion of this nature is outside the Committee’s purview’.²¹⁰ Nevertheless, it criticised the State Party for enacting legislation preventing the prosecution of crimes against humanity committed prior to 1 July 2002, which the Inter-American Court had urged the State Party to repeal as it violates international law.²¹¹ CEDAW recommended that Peru complete investigations of the forced sterilization programme and develop and implement a comprehensive reparation programme. Commentators have noted that this aspect could be more specific and elaborated on – ‘[i]t is disappointing that this was not done, even more considering the history and motivations behind forced sterilization of Indigenous women and girls.’²¹²

Issues in relation to discrimination in healthcare arose in Alyne da Silva Pimentel Teixeira v Brazil (2011).²¹³ Ms. da Silva Pimentel Teixeira, a Brazilian national of African descent, died when she did not receive timely emergency obstetric care when presenting at a private health centre with pregnancy complications. The Committee concluded that ‘Ms. da Silva Pimentel Teixeira was discriminated against, not only on the basis of her sex, but also on the basis of her status as a woman of African descent and her socio-economic background.’²¹⁴ As Meghan Campbell notes of the case, ‘women belonging to ethnic minorities or Indigenous populations are among those particularly at risk of maternal mortality’.²¹⁵ CEDAW will be required to continue to investigate how intersectional discrimination affects the ‘location, funding, quality and staffing of maternal health facilities where ethnic, Indigenous or poor women live’, with greater participation of minority and Indigenous women essential in the development of maternal health policies.²¹⁶

The vulnerability of minorities to gender-specific violence was raised in A v Denmark (2015).²¹⁷ The author was from the Christian minority in Punjab, Pakistan, where she lived until she married her husband, a Pakistani with a Danish permanent residence permit. Ultimately, her request for a permanent residence permit was denied by Denmark, as well as a later claim for asylum, and she had to return to Pakistan. There, she was the subject of several violent assaults and attacks on her place of work. CEDAW recalled the eligibility guidelines used by the UNHCR for assessing the international protection needs of religious minorities from Pakistan, which highlight that ‘women from the Christian minority are in danger of gender-specific violence and that “violent anti-Christian attacks reportedly occur throughout the country and in many instances, the authorities are reportedly unable or unwilling to protect the lives of Christians or to bring perpetrators of such violence to justice”.’²¹⁸ The Committee stressed that gender-related asylum claims may intersect with other proscribed grounds of discrimination, including ethnicity and religion.²¹⁹ Denmark was ordered to refrain from forcibly returning the author to Pakistan.

In Kell v Canada (2012),²²⁰ the author was an Indigenous woman who suffered from domestic violence, whose partner removed her name and title from their shared house. The Committee established a number of findings, including that the author’s name was removed from the lease making her partner - who was not a member of the aboriginal community - the sole owner of the property; that she lost her share in the house as a result of an alleged fraudulent transaction effected by her partner; that such change was impossible without action or inaction of the Northwest Territories Housing Corporation; and that her partner was serving as a director of the Housing Authority Board and therefore occupied a position of authority.²²¹ CEDAW, noting that ‘the author has established a distinction based on the fact that she was an aboriginal woman victim of domestic violence’, emphasised that ‘intersectionality is a basic concept for understanding the scope of the general obligation of States parties contained in article 2 of the Convention’.²²² It found that discrimination of women based on sex and gender is inextricably linked with other factors, and that ‘an act of intersectional discrimination has taken place against the author.’²²³ In addition to specific compensation, the decision provided as a general remedy that the State Party ‘Recruit and train more aboriginal women to provide legal aid to women from their communities, including on domestic violence and property rights’.²²⁴

In Jeremy Matson et al v Canada (2022),²²⁵ the author was a member of the Indigenous Squamish Nation submitting on behalf of his daughter. The author contended that since the adoption of the Indian Act of 1876, with its provisions on registration as an “Indian”, the State Party has ‘discriminated against Indigenous women and their descendants, denying them Indigenous status, the right to determine their Indigenous identity and their fundamental right to belong to a group of Indigenous people.’²²⁶ The complaint directly referenced the Sandra Lovelace decision of the Human Rights Committee, arguing that amendments brought in by Canada in response to that decision had not remedied fully the discriminatory character of the Act, in particular by creating a second generation cut-off rule that applied only to maternal descendants of the Indigenous women who had been disenfranchised.²²⁷ At the time of the Lovelace case, there was no Optional Protocol to UN CEDAW, and so that case had to be brought under the ICCPR. But it is interesting to see this “descendant” case directed to CEDAW instead as the more appropriate specialist international legal forum, even though it related directly to implementation of the previous HRC decision. CEDAW agreed that the amendments had failed to effectively remedy the earlier discriminatory policy which ‘perpetuates in practice the differential treatment of descendants of previously disenfranchised Indigenous women’.²²⁸ As a result, it found a violation of the Convention. Importantly, the decision also emphasised the gender aspect of FPIC, with the Committee reminding the State Party that ‘failure to consult Indigenous peoples and Indigenous women whenever their rights may be affected constitutes a form of discrimination’.²²⁹ We thus see an intersectional approach to FPIC, where the rights of women and children to consultation has been underlined in caselaw before CEDAW and CRC.

Finally, an important claim arose in E.S. and S.C. v Tanzania (2015),²³⁰ in which the discriminatory effects of customary laws were considered. The authors were deprived of the right to administer their husbands’ estates and excluded from inheriting any property upon the death of their spouses on the basis of codified customary law provisions, which prohibited women and daughters from inheriting clan land.²³¹ CEDAW noted that inheritance matters are governed by multiple legal systems in Tanzania and that the authors were subject to Sukuma customary law on the basis of their ethnicity.²³² It also noted that although the State Party’s Constitution includes provisions guaranteeing equality and non-discrimination, it had failed to revise or adopt legislation to eliminate the remaining discriminatory aspects of its customary law provisions. The Committee held that all discriminatory customary laws were to be repealed ‘with a view to providing women and girls with equal administration and inheritance rights…irrespective of their ethnicity or religion’.²³³ It stated:

‘[U]nder articles 2(f) and 5(a) of the Convention, States parties have an obligation to adopt appropriate measures to amend or abolish not only existing laws and regulations but also customs and practices that constitute discrimination against women, including when States parties have multiple legal systems in which different personal status laws apply to individuals on the basis of identity factors such as ethnicity or religion.’²³⁴

The decision indicates that States Parties to UN CEDAW in which customary laws exist, including religious, Indigenous or other forms, must ensure that these do not discriminate against women and girls in inheritance or other matters. It is also a comparatively rare example of an individual communication involving an African State Party – the only one before CEDAW so far.

¹⁸⁸ See further Meghan Campbell, ‘CEDAW and Women’s Intersecting Identities: A Pioneering New Approach’ (2015) Revista Direito Gv. Sao Paolo 479-504, at 480.
¹⁸⁹ Ibid 487.
¹⁹⁰ Ibid 481.
¹⁹¹ CEDAW General Recommendation 30, ‘Women in Conflict Prevention, Conflict and Post-conflict Situations’ CEDAW/C/GC/30 (2013) para 36.
¹⁹² CEDAW General Recommendation 39, ‘Indigenous Women and Girls’ UN Doc. CEDAW/C/GC/39 (2022) para 12.
¹⁹³ Ibid para 13.
¹⁹⁴ Human Rights Council, Inaugural Session of the Forum on Minority Issues, Geneva 15-16 December 2008 <https://www.ohchr.org/en/events/forums/2008/inaugural-session-forum-minority-issues> [at Item III hyperlink Dubravka Simonovic]
¹⁹⁵ UN Doc. CEDAW/C/BRA/CO/8-9 (2024) para 30(e).
¹⁹⁶ UN Doc. CEDAW/C/MNE/CO/3 (2024) para 32(a).
¹⁹⁷ UN Doc. CEDAW/C/CAF/CO/6 (2024) para 35(c).
¹⁹⁸ UN Doc. CEDAW/C/TKM/CO/6 (2024) para 57.
¹⁹⁹ UN Doc. CEDAW/C/GTM/CO/10 (2023) para 44.
²⁰⁰ Ibid para 45.
²⁰¹ UN Doc. CEDAW/C/77/D/143/2019 (2020).
²⁰² Ibid para 2.1.
²⁰³ Ibid para 7.3.
²⁰⁴ Ibid para 7.4. See also CEDAW’s decision in L.A. et al v North Macedonia (2020), which raised similar facts of insufficient access to maternal and child health-care programmes for the five Roma women applicants (UN Doc. CEDAW/C/75/D/110/2016 (2020)). CEDAW noted that ‘gynaecologists have refused to register Roma women as patients’ (at para 2.11).
²⁰⁵ UN Doc. CEDAW/C/89/D/170/2021 (2024).
²⁰⁶ Ibid para 8.9.
²⁰⁷ Ibid para 2.2. To a lesser extent, men, mostly Indigenous, were also subjected to forced sterilisation.
²⁰⁸ Ibid para 8.2.
²⁰⁹ Ibid para 8.3, quoting Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez UN Doc. A/HRC/22/53 (2013) para 48.
²¹⁰ Ibid para 8.9.
²¹¹ Ibid.
²¹² International Indigenous Women’s Forum and Indigenous Peoples Rights International, ‘Guide to CEDAW’s General Recommendation No. 39 on the Rights of Indigenous Women and Girls’ (2025) p. 33 <https://fimi-iiwf.org/iDocs/en/GuideGR39-CEDAW_2025_ENG.pdf>
²¹³ UN Doc. CEDAW/C/49/D/17/2008 (2011).
²¹⁴ Ibid para 7.7.
²¹⁵ Campbell, supra n 188 at 498.
²¹⁶ Ibid 499 – ‘In their submission to the CEDAW Committee Brazil does mention that the policies included women’s participation, it would be helpful to remind Brazil that participation includes voices that are routinely marginalised: the poor, indigenous and rural women’.
²¹⁷ UN Doc. CEDAW/C/62/D/53/2013 (2015).
²¹⁸ Ibid para 9.5.
²¹⁹ Ibid.
²²⁰ UN Doc. CEDAW/C/51/D/19/2008 (2012).
²²¹ Ibid para 10.2.
²²² Ibid para 10.2.
²²³ Ibid.
²²⁴ Ibid para 11(b)(i).
²²⁵ UN Doc. CEDAW/C/81/D/68/2014 (2022).
²²⁶ Ibid para 2.1.
²²⁷ Ibid para 2.4.
²²⁸ Ibid para 18.10.
²²⁹ Ibid para 18.11.
²³⁰ UN Doc. CEDAW/C/60/D/48/2013 (2015).
²³¹ Ibid para 2.4.
²³² Ibid para 7.6.
²³³ Ibid para 9(ii).
²³⁴ Ibid para 7.2.