Evolution of the Human Rights Law Framework - Essay Example

Page Human Rights Law in the Context of Protecting Gender and Sexuality Related Rights Introduction Today, there is a general trend of acceptance of a policy of gender equality and the related concepts of equal rights. For example, more and more organisations claim themselves to be equal opportunity employers. However, cultural redistribution of men’s privileges and powers seek to defend, celebrate and evoke the traditional notions of hetero-masculinity and sexual difference. But what is the legal significance of such developments? Indubitably, concepts related to feminist jurisprudence, feminism, criminology, masculinity, sexuality, etc. need to be analysed in this regard. Contextually, we must proceed to analyse the effects of human rights law in relation to gender and sexuality linked rights. This paper utilises a detailed review of academic and legal literature which is followed by a legal analysis. Next, case examples have been appended and the paper finally culminates at an appropriate conclusion. Research Question To date human rights law has contributed little in terms of gender and sexuality related rights. Discuss. Review of the Literature Evolution of the human rights law framework is one of the relatively recent developments. To understand the implications, backgrounds and characteristics of gender and sexuality related rights in relation to human rights, review of the literature related to feminism and feminist jurisprudence in particular becomes rather important. Hilaire Barnett has attempted to evaluate the relevance and implications of feminist jurisprudence from feminist, historical, socio-cultural and legal perspectives.1 Historical evidence of discrimination against women can be empirically testified by the practices like Chinese footbinding, female circumcision, Hindu suttee of India, European witch murders, wife sale in England, etc. A comparative analysis of these historic socio-cultural trends reveals the existence of certain tendencies in the society which give rise to gender-based violence against women. The legal developments too have been affected in efforts to curb these tendencies. For example, British colonial rulers in India had to pass a legislation that stopped the practice of Hindu suttee during the 19th century. Hence, gender inequalities and related violence have been intercultural and appropriate legal action in this regard must always be welcome.2 Further, analysis of gender based crime against women is extremely important in the context of criminal law as well. Law’s engagement with the female body is not only an ethical but also a technical issue in evaluating the existing criminal law framework.3 Addressing discrimination issues in regards of women is thus important in the context of UK. In fact, British women are paid less than men in professional field, under-represented in the Parliament and readily sent to prison for committing even minor crimes. According to a recent UN report, as explained by Robert Verkaik of The Independent, women in UK are still fighting to attain socio-economic equality with men. Only one in five members of the House of Lords and the House of Commons is a woman. Average hourly earnings of women employees amount to almost 83% of the men’s earnings. Forced marriages and sexual violence are the major threats to the human rights of women in UK. The United Nations and Amnesty International are consistently trying to draw the attention of the UK government towards these issues.4 Moreover, the socio-economic aspects of the legal system of UK in relation to the women’s rights need to be reviewed. “An act like the Sex Discrimination Act 1975 (in the context of UK) provides certain rights, yet for these to have any impact for women in general requires that vast numbers of individual women can prove that they have been denied their rights through a form of unlawful discrimination. So whilst a few women may have benefited from taking action under this legislation, the vast majority have not benefited from their gains.”5 Interaction between feminism and evolution of the legal processes also needs to be understood to assess the historical backgrounds of the present day situation. “The appeal to law on the basis of basic rights was no less than an appeal to the state to re-order power relations. Even if the contemporary feminist movement tends to dismiss early feminism as liberal reformism, the anti-feminists of the nineteenth and twentieth centuries recognized that these appeals threatened the particular order of the family.”6 Hence, in developing an understanding of feminism, Rosemary Tong writes, “Interdisciplinary, intersectional, and interlocking are the kind of adjectives that best describe the way we feminists thinks. There is a certain breathlessness in the way we move from one topic to the next, revising our thoughts in midstream.”7 This kind of approach must be inclined to evaluate the legal propositions entailed in the subject of women’s rights. Unfortunately, even in the context of a developed country like UK, the human rights law8 does not appear to take a clear stand on this issue. Issues related to transsexuals and homosexuals also need to be raised in relation to gender and sexuality related rights. Constituting appropriate marital practices and recognition to safeguard their rights in the eyes of law is perhaps most important. “People do have, and always have had, sex ‘outside’ marriage. In some marriages sexual intercourse might itself not take place. So how justifiable is this legal definition of marriage? The parameters of human sexuality transcend the general connections of the traditional marital sexual dichotomy”9 The society is however less inclined to comprehend the problems of homosexuals and transsexuals in legal terms. This is a reason that separate movements to secure sexuality and gender related rights take place. The movement for gay and lesbian rights in USA is a prominent example in this regard, which has become a major civil rights issue.10 But such movements cannot make much difference until concrete legal steps are taken. Hence, crimes against these vulnerable groups preponderant in the male (mainly heterosexual) dominated society where masculinity often determines the definition and interpretation of human rights.11 Legal Analysis The Human Rights Act 1998 of UK puts relatively greater emphasis on the convention rights and freedoms. However, in the Article 4, prohibition of slavery or servitude can be very instrumental in eradicating prostitution. The article declares that no one shall be held in slavery or servitude and no one shall be required to perform forced or compulsory labour.12 13 But still it seems that the act focuses on the issue of freedom of thought, conscience, religion, expression and peaceful assemblage which increases its socio-political relevance with no specific reference to problems like gender politics and sexism. The framework provided by the act is in orchestration with the European Convention on Human Rights (ECHR). It can be mentioned here that the Article 8 and Article 12 of the ECHR (and its five protocols) have been effective in protecting transsexual and homosexual rights as far as the issues like marriage, private and family life, sex life, etc. can be considered at least in some cases.14 15 Further in the context of legal analysis, it should be mentioned that UK is a signatory of the Convention on the Elimination of All Forms of Discrimination Against Women16 (CEADAW; signature in 1981, ratification in 1986). The government did not introduce any significant legislation or act to enforce this convention. Rather, it orchestrated its existing legal framework in relation to gender issues with the main provisions of the convention by means of ratification. For example, the government has clearly stated, “The United Kingdom reserves the right to regard the provisions of the Sex Discrimination Act 1975, the Employment Protection (Consolidation) Act 1978, the Employment Act 1980, the Sex Discrimination (Northern Ireland) Order 1976, the Industrial Relations (No. 2) (Northern Ireland) Order 1976, the Industrial Relations (Northern Ireland) Order 1982, the Equal Pay Act 1970 (as amended) and the Equal Pay Act (Northern Ireland) 1970 (as amended), including the exceptions and exemptions contained in any of these Acts and Orders, as constituting appropriate measures for the practical realisation of the objectives of the Convention in the social and economic circumstances of the United Kingdom, and to continue to apply these provisions accordingly; this reservation will apply equally to any future legislation which may modify or replace the above Acts and Orders on the understanding that the terms of such legislation will be compatible with the United Kingdoms obligations under the Convention.”17 The stand of the government as explained in the preceding paragraphs can be very much justified. The legislations existing in the UK law framework are rather effective. For instance, in regards of protecting women’s rights, Sex Discrimination (Northern Ireland) Order 1976 is a very good example of an effective legal instrument. It states that it is unlawful for a person in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her – (a) in the way he affords her access to opportunities for promotion, transfer or training, or to other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them; or (b) by dismissing her, or subjecting her to any other detriment.18 Hence, enactment of statutes using clear cut language to directly safeguard the gender and sexuality related rights is a feasible option. The Sex Discrimination Act is another very useful legislation in this regard. The act clearly identifies and defines a person who discriminates against a woman on the grounds of her sexual identity, orientation or marital status.19 Astonishingly, despite the effective legislations already existing and the adaptations with regards to the Convention on the Elimination of All Forms of Discrimination Against Women, the Human Rights Act 1998 has been less significant and effective in addressing the gender issues. The existing criminal laws are prone to create dangerous gender stereotypes and the issue does not appear to have been sufficiently addressed by the human rights law.20 Case Examples 1. The case of Boote (Donna Lisa) v Ministry of Defence In this case, Donna Lisa Boote (a female soldier of the British army) was directed by the army to be deployed in military exercise. At the same time, her husband was too ordered to similar deployment. According to the army rules, both she and her husband could be deployed away from their home at the same time. Boote had dependent children and she was genuinely unable to make an alternative arrangement for them during the period of deployment. The authorities, however, remained apathetic towards this issue. Hence, Boote complained that she was being discriminated against indirectly on sexual grounds since the army policy established that she could mot hope for any special weight to be associated to the fact that she had dependent children at the time when decisions on deployment were to be made. The judgement in this case tried to obtain a balance between the army requirements and the acknowledgement that Boote had been really prejudiced in an unfair manner. However, the case had to be solved under the sex discrimination legislation. Although the issue was related to basic human rights too, the Human Rights Act 1998 could not be utilised in the case due to technical limitations.21 22 2. Fletcher, Parkes and Wilkinson v NHS Pensions Agency Student Grants Unit and Department of Health Clare Fletcher, Tracey Parkes and Shelley Wilkinson were trainee midwives. The NHS (National Health Service) refused them maternity leave. It also stopped the bursaries which they were receiving during the time off on their maternity absence. In protest, the trainees moved to Employment Tribunal. However, in 2004, the Tribunal ruled that no discrimination had been made against them at all. But next year, EAT (Employment Appeal Tribunal) dismissed the decision by the Tribunal and ruled, “while a vocational trainee is not an employee or worker within the meaning of the UK employment statutes, he or she may never the less be protected by Sex Discrimination Act 1975 s. 14 as substituted by the Employment Act 1989 s.7 (1) with the result that ceasing to pay a bursary to a woman who has become pregnant is unlawful sex discrimination.”23 In the context of this case, it must be kept in mind that by means of ratification, UK has already orchestrated the CEADAW24 with the provisions of Sex Discrimination Act and Employment Act. Also, in their ruling, the EAT held, “the Applicants’ claims, as trainee midwives undergoing vocational training in the National Health Service are within the scope of the Equal Treatment Directive25”26. Thus, this case example proves that how the UN Convention and the European Union legal framework (of which Equal Treatment Directive is a part) have specifically addressed the issues of women’s rights. The human rights law has been almost ineffective in this regard. 3. Sykes v J. P. Morgan Ms Sykes was an employee of J. P. Morgan. After she had a fourth child, she requested for a workstation to be installed at her residence. She wanted to save more time for her children and flexible working hours. The company rejected her request and dismissed her. Ms Sykes moved to the Employment Tribunal where she won her claim for unjust dismissal but lost her sex inequity claim. In its ruling, the Tribunal stated “because here the form of discrimination alleged is related to a dismissal, the fact that it is only the issue of direct discrimination which is remitted will not preclude evidence as to the selection for dismissal and as to the dismissal itself.”27 Astonishingly, the Tribunal did not pay enough attention to the fact that Ms Sykes was already a working mother and she was dismissed after she had a fourth baby. So, does not a working woman have the right to conceive a baby? Is it justified to sack a working mother on the grounds that she has given birth to a fourth child? This case example thus shows that there is still considerable gap in the present legal system of UK. Despite several legislations, statutes and international agreements, employers are still able to do injustice rather freely in regards of sex discrimination (at least in some cases). 4. The case of B v France The applicant involved in this case had asked for relief from consistent third party intervention in her private life. The applicant was born of male sex who assumed female identity by the means of surgical sex change. In the context of this case “the European Court of Human Rights held, by fifteen votes to six, that the frequent necessity of disclosing to third parties information concerning a post-operative transsexual’s private life had resulted in a degree of inconvenience sufficient to violate Article 8 of the Convention. Accordingly, a sum for non-pecuniary damage was awarded.”28 The case was not handled by the court under any special provision or reservation for the transsexual. Rather, the general issues related to the right to privacy were raised. This is a prominent case in which the sexuality rights of a transsexual were addressed.29 This case also demonstrates that how the human rights law protected the rights of a transsexual in relation to her sexual identity, which is not only a legal but a sentimental issue too. Conclusion The academic and legal literature reviewed raises serious questions on the present day legal framework as far as the gender related issues are concerned. However, through the case examples discussed in this paper, it is discernable that legislations aimed at preventing sexual discrimination have been instrumental in protecting the women’s rights. Human rights law too has been helpful in solving the problems related to the rights of women, transsexuals and homosexuals who are generally considered under the “other” sexual identity in the hetero-masculine context.30 But human rights law has almost never addressed these sorts of gender related problems directly. There is no separate and specialised legal framework to technically interpret the gender and sexuality related rights in clear and straight forward language. Hence the statement that to date human rights law has contributed little in terms of gender and sexuality related rights appears to be highly justified. References B v France [1992] 2 FLR 249 Boote (Donna Lisa) v Ministry of Defence [2003] IT (NI) [2003] NIIT 43 C Smart, Feminism and the Power of Law (Routledge 1989) Convention for the Protection of Human Rights and Fundamental Freedoms, ETS, Article 8 and Article 12 Convention on the Elimination of All Forms of Discrimination Against Women, 1249 UNTS 13 D E Newton, Gay and Lesbian Rights: A Reference Handbook (ABC – CLIO 2009) D Nicolson and L Bibbings, Feminist Perspectives of Criminal Law (Cavendish Publishing Ltd 2000) DiscLaw Publishing Ltd., ‘emplaw.co.uk – Latest British Employment Law News’ 18 May 2011 EC Equal Treatment Directive 76/207/EEC (ETD) Fletcher, Parkes and Wilkinson v NHS Pensions Agency Student Grants Unit and Department of Health EAT [2005] ICR 1458 Human Rights Act 1998, Schedule 1, Article 4 HM Government, ‘Human Rights Act, 1998’ accessed 7 May 2011 H Barnett, Introduction to Feminist Jurisprudence (Cavendish Publishing Ltd 1998) J Bridgeman and S Millns, Feminist Perspectives on Law: Law’s Engagement with the Female Body (Sweet and Maxwell1998) One Crown Office Row, ‘One Crown Office Row - Article’ 10 May 2011 R Collier, Masculinities, Crime and Criminology (SAGE Publications Ltd 1998) R Collier, Masculinity, Law and the Family (Routledge 1995) R Tong, Feminist Thought: A More Comprehensive Introduction (Westview Press 2009) R Verkaik, ‘UN says sexual discrimination is rife in Britain – Home News, UK – The Independent’ accessed 17 May 2011 Sex Discrimination Act 1975, s1(a)(b) Sex Discrimination (Northern Ireland) Order 1976, Article 8 (2)(a) and (b) Sykes v J. P. Morgan [2002] All ER (D) 209 (Jul) United Nations, ‘UNTC’ accessed 17 May 2011 Table of Authorities Cases Boote (Donna Lisa) v Ministry of Defence [2003] IT (NI) [2003] NIIT 43…………..8 Fletcher, Parkes and Wilkinson v NHS Pensions Agency Student Grants Unit and Department of Health EAT [2005] ICR 1458…………………………………………9 Sykes v J. P. Morgan [2002] All ER (D) 209 (Jul)…………………………………..10 B v France [1992] 2 FLR 249………………………………………………………..10 Other Authorities Human Rights Act 1998……………………………………………………………….5 Human Rights Act 1998, Schedule 1, Article 4……………………………………….6 Convention for the Protection of Human Rights and Fundamental Freedoms, ETS, Article 8 and Article 12………………………………………………………………..6 Convention on the Elimination of All Forms of Discrimination Against Women, 1249 UNTS 13………………………………………………………………………………6 Sex Discrimination (Northern Ireland) Order 1976, Article 8 (2)(a) and (b)………….7 Sex Discrimination Act 1975, s1(a)(b)………………………………………………...7 Sex Discrimination Act 1975 s. 14…………………………………………………….9 Employment Act 1989 s.7 (1)…………………………………………………………9 Convention on the Elimination of All Forms of Discrimination Against Women, 1249 UNTS 13………………………………………………………………………………9 EC Equal Treatment Directive 76/207/EEC (ETD)…………………………………...9 Read More