CEDAW. A Holistic Approach To Womens Equality and Freedom

3
The CEDAW: a holistic approach to women’s

equality and freedom
Rikki Holtmaat
[Thus], regardless of a universal sex-equality norm, women’s reality is one of

gross inequality.1
The abolition of gender norms … would be the abolition of gender and the
radical reformulation – perhaps beyond human recognition – of sexuality. But
their reform could begin to make it less true that our society constructs women
as inferior to men.2
1 Introduction
From its title, it appears that the overall object and purpose of the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW, further: the Women’s Convention or the Convention)
is the elimination of all forms of discrimination against women. In this
chapter I will explain that this aim may be divided into three sub-aims: to
ensure full equality of women before the law; to improve the de facto posi-
tion of women; and to modify gender-based stereotypes. In turn, these
sub-aims relate to three possible political and legal methods to enhance
women’s equality and freedom: i.e. through (1) guaranteeing women’s
individual rights, (2) giving social support to women and (3) enhanc-
ing social and cultural change. Most of my attention will go to the third
sub-aim and the corresponding third method and to the provision on
which this sub-aim/method is based, that is to Article 5 CEDAW (further:
This chapter builds on various research projects and derives some texts from earlier publi-
cations that I have written in this area.
1
B. E. Herná ndez-Truyol, ‘Out of the shadows: traversing the imaginary of sameness, diffe-
rence, and relationalism – a human rights proposal ’, Wisconsin Women’s Law Journal 17
(2002) 111–62 at 145.
2
K. Anthony Appiah, ‘Stereotypes and the shaping of identity’, Californian Law Review
88:41 (2000) 41–53 at 52.
95
9781107034624c03_p95-123.indd 95 3/25/2013 8:01:44 PM

96 Potential Added Value of the CEDAW
Article 5). This provision lays the basis for an approach to enhancing wom-
en’s human rights that goes beyond the well-known distinction between
formal and substantive equality3 and includes transformative equality.4 It
opens up possibilities to read the Women’s Convention as not only pro-
hibiting direct and indirect discrimination against women as compared
to men, but as also putting an obligation on States Parties to combat sys-
temic or structural gender discrimination.
This interpretation of the meaning and scope of the Convention is
based on (the draft ing of) its text,5 and on an in-depth analysis of the
CEDAW Committee’s General Recommendations, its Concluding
Observations and its decisions under the Optional Protocol.6 Contrary
to pessimistic voices in the academic literature about the potential of the
Women’s Convention, this analysis shows that, compared to a stand-
ard sex-equality norm, it has considerable additional value. That is, the
Convention requires fundamental changes in society in order to create
more room for diversity and freedom for women (and men) to decide for
themselves what it means to be a woman (or a man).7 On the grounds of
3
This distinction has dominated discussions within feminism and feminist legal theory for
several decades. See, for example, R. Hunter, Rethinking Equality Projects in Law. Feminist
Challenges (Oxford/Portland: Hart Publishing , 2008) and R. Holtmaat , ‘Van gelijke
behandeling naar Ander Recht’ in E. Brems and L. Stevens (eds.), Recht en gender in België
(Bruges: Die Keure, 2011) 237–61.
4
Th is term has been coined by Sandra Fredman. See S. Fredman, ‘Beyond the Dichotomy of
Formal and Substantive Equality. Towards New Definitions of Equal Rights’ in I. Boerefijn
et al. (eds.), Temporary Special Measures. Accelerating De Facto Equality of Women Under
Article 4(1) UN Convention on the Elimination of All Forms of Discrimination Against
Women (Antwerp/Oxford/New York : Intersentia, 2003) 111–18.
5
As far as the draft ing process is concerned, I relied on L. A. Rehof, Guide to the Travaux
Pré paratoires of the United Nations Convention on the Elimination of All Forms of
Discrimination against Women (Dordrecht/Boston/London: Martin Nijhoff Publishers,
1993).
6
The documents that are produced by the CEDAW Committee may be found at www.
un.org/womenwatch/daw/cedaw/sessions.htm (up to the 41st Session) and at www2.
ohchr.org/english/bodies/cedaw/ (from 42nd Session onwards) (last accessed 8 February
2013). I have studied all General Recommendations, all Concluding Observations from
the 1st to the 44th session, and all Decisions under the Optional Protocol until the year
2010. My main objective was to reveal how the Committee interprets the States Parties’
obligations under the Convention, most specifically under Articles 2f, 5a and 5b and 10c,
which all cover the issue of (parental) gender roles and gender stereotyping.
7
See also Simone Cusack’s chapter about the CEDAW’s significant role in combating gen-
der stereotypes in this volume. The argument is that the right to equality is very much
linked to the right to freedom to choose one’s own identity, instead of being forced to
adopt stereotyped and gendered self-images and roles. Th is affects men in a similar way as
women. See J. M. Kang, ‘The burdens of manliness’, Harvard Journal of Law & Gender 33
(2010) 477–507.
9781107034624c03_p95-123.indd 96 3/25/2013 8:01:46 PM

The CEDAW: holistic approach to women’s equality 97
this analysis, it will be argued that the Convention is not only dedicated
to the fundamental principle of human equality, but also to the idea(l)s of
human autonomy, freedom and diversity.
A difficult question that arises in this context is whether international
human rights law can effectively impose an obligation on States Parties to
modify gender stereotypes8 and fi xed parental gender roles.9 The imple-
mentation of this obligation very much depends on their willingness to
give up part of their sovereign powers to ‘govern’ the content and nature
of gender relations (for example, through family law and inheritance
law). In many countries the way gender relations are structured is closely
linked to how States Parties see and experience their national identities.
States are most hesitant to implement international law, and are especially
inclined to openly contest its legitimacy, when such presumed identity
factors are at stake. Before exploring these issues further, I will start out
with some observations about the underlying human rights values that
colour the interpretation of the Women’s Convention as a whole.
2 The human rights values that are incorporated

in the Women’s Convention
The general object and purpose of the Convention must be interpreted
in light of its fundamental principles and values, as declared in the
Convention’s Preamble. These point back to the Charter of the United
Nations, which firmly declares that all human beings are equal in rights
and in dignity.10 This principle was elaborated in the 1948 United Nation’s
Universal Declaration of Human Rights, stating in the Preamble that ‘rec-
ognition of the inherent dignity and of the equal and inalienable rights
of all members of the human family is the foundation of freedom, jus-
tice and peace in the world’, and in Article 1 stating that ‘[A]ll human
beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit
of brotherhood.’ These most fundamental principles of human rights are
8
This expression summarises the content of Article 5a of the CEDAW, discussed below in
this chapter.
9
This expression summarises the content of Article 5b of the CEDAW, discussed below in
this chapter.
10
In a similar vein, see the Preambles of the International Covenant on Civil and Political
Rights (ICCPR), the International Covenant on Economic and Social Rights (ICESCR),
the International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD) and the International Convention on the Rights of the Child (CRC) all refer to
the Preamble of the UN Charter.
9781107034624c03_p95-123.indd 97 3/25/2013 8:01:46 PM

based on the presumption that all human beings – irrespective of time
and place of birth, national or ethnic origin, race, language, class or caste,
sex, sexual orientation, disability or any other classification that human
beings can possibly construct between themselves and regardless of their
actual differences– are potentially rational and responsible beings who
have a genuine desire to be in control of their own lives.11 Equality and
dignity mean that not subjugation but participation, not dependency but
autonomy, not slavery but freedom are the key notions in this human
rights value orientation.12 It means that neither destiny nor fate, neither
cultural inheritance nor religious prescriptions, but the autonomy and
capacity of each human being to make one’s own life plan come true is the
foundational idea(l) behind human rights.13 Even to the present day, such
freedom and autonomy are most often denied to women through a great
variety of discriminatory laws and practices, beliefs, customs and tradi-
tions all over the world, which are based on gender stereotypes and fi xed
parental gender roles.14 The Convention’s Preamble recognises this, as it
11
This expresses the fundamental value of the inherent equality of all human beings, which
forms the basis for the principle of formal equality in and before the law. Besides this,
the principle of substantive equality has also received recognition in international law.
In that principle, it is recognised that in fact all human beings are differently situated,
that is, they occupy different social, geographic, economic or other positions. At the core
of the principle of substantive equality is the recognition of these de facto differences,
and the idea of distributive justice, which requires that human beings should have equal
opportunities to make something of their lives.
12
H. Bielefeldt, ‘ “Western” versus “Islamic” human rights conceptions? a critique of cul-
tural essentialism in the discussion on human rights’, Political Theory 28:1 (2000) 90 –121
and M. Winston, ‘Human rights as moral rebellion and social construction’, Journal of
Human Rights 6 (2007) 279–305.
13
Although autonomy and freedom are most often interpreted in an individualistic way, it
must be remembered that human rights protection also includes the protection of family
life and national and cultural rights. The individual, in other words, can only become
a human person within the context of family, culture and nation. See R. Holtmaat and
J. Naber, Women’s Human Rights and Culture: From Deadlock to Dialogue (Antwerp:
Intersentia, 2011) at 96.
14
In Holtmaat and Naber, Women’s Human Rights and Culture and in R. Holtmaat,
‘Article 5’ in M. A. Freeman, C. Chinkin and B. Rudolf (eds.), The Convention on the
Elimination of all forms of Discrimination Against Women: A Commentary [hereinafter
CEDAW Commentary](Oxford University Press, 2012), I discuss the concepts of gender
stereotypes and fi xed parental gender roles (in relation to Article 5 of the CEDAW) in
more detail. See also R. J. Cook and S. Cusack, Gender Stereotyping: Transnational Legal
Perspectives (Philadelphia: University of Pennsylvania Press, 2009), and Cusack, this vol-
ume. Men who do not conform to the culturally defi ned male gender role and identity
also encounter discrimination on the grounds of their gender. See, for example, D. S.
Cohen, ‘Keeping men “men” and women down: sex segregation, anti-essentialism and
masculinity’, Harvard Journal of Law and Gender 33 (2010) 509–53.
9781107034624c03_p95-123.indd 98 3/25/2013 8:01:46 PM

expressly states that discrimination against women violates the principles
of equality of rights and respect for human dignity.15
3 The Convention’s definition of discrimination and its scope

Article 1 of the Convention defines 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 fundamen-
tal freedoms in the political, economic, social, cultural, and civil or any
other field.
Most importantly, the Convention incorporates the standard that all

forms of discrimination against women that lead to an infringement of
their human rights should be eliminated. The words ‘distinction, exclu-
sion or restriction’ are interpreted in an extensive way by the Committee
and by academic commentators.16 Such a broad interpretation of the
non-discrimination principle indicates a human rights approach to com-
bating discrimination,17 as opposed to a formal legal approach, in which
a (symmetrical) sex equality or equal treatment norm prevails.18 In such
a human rights approach, discrimination against women is seen as an
instance of their oppression,19 which, according to Iris Marion Young,
can take at least five different forms. According to her, women experience
a mixture of exploitation, marginalisation, powerlessness, cultural impe-
rialism and violence.20 This means that not only factual unequal treat-
ment on the grounds of sex and legal discrimination,21 but also (sexual)
15
CEDAW Preamble, paras. 1–3.
16
See A. Byrnes, ‘Article 1’ in Freeman et al., CEDAW Commentary.
17
Winston, ‘Human rights as moral rebellion’.
18
The CEDAW defi nition is very different from the formal equal treatment defi nitions of
discrimination that are dominant in the context of (inter alia) European sex equality
law. See R. Holtmaat, ‘European women and the CEDAW Convention. The way forward’
in L’ égalité entre femmes et hommes et la vie profesionnelle. Le point sur les développe-
ments actuels en Europe (Paris: Dalloz , 2003) 153–74 and R. Holtmaat and C. Tobler,
‘CEDAW and the European Union’s policy in the field of combating gender discrimin-
ation’, Maastricht Journal of European and Comparative Law 12:4 (2005) 399–425.
19
See Winston, ‘Human rights as moral rebellion’, who states that one should keep in mind
that all human rights law is meant to put an end to the oppression of certain people or
groups of people by their government or by other people.
20
I. M. Young, Justice and the Politics of Difference (Princeton University Press: 1990) 40ff.
21
See Article 2 and many of the substantive Articles of the Convention.
9781107034624c03_p95-123.indd 99 3/25/2013 8:01:46 PM

harassment, sexist hate speech, or violence against women22 should be
ruled out. ‘Oppression’ includes hidden or indirect forms of sex dis-
crimination and structural or systemic gender stereotypes and gendered
structures that are deeply rooted in the religion, culture or tradition of a
particular society as well as in its laws and public policies.23 The drafters
of the Convention recognised this and stressed in the Preamble that a
change in the traditional roles of both men and women in society and in
the family is a prerequisite for achieving full equality between men and
women.24
The Convention explicitly recognises the disadvantaged position of
women and (at least at first sight25) awards protection to women exclusively.
This differs from so-called sex neutral or symmetrical anti-discrimination
provisions in many international conventions, in national constitutions
and in European Union law, for example, where unequal treatment on
the ground of (either male or female) sex is prohibited.26 The Convention
acknowledges that in present day conditions it is mostly women who
suffer from discrimination on the ground of their sex, as well as from a
range of other discrimination grounds (i.e. they suffer from intersectional
discrimination27). Recently in the USA, a discussion has been started by
Darren Rosenblum as to whether the Women’s Convention should be
‘unisexed’, that is whether it would be better to prohibit all discrimina-
tion on the ground of sex and/or gender, instead of discrimination against
22
See in particular CEDAW General Recommendations 12 and 19.
23
This means that all laws and legal constructs must be subjected to an in-depth gender ana-
lysis. See R. Holtmaat, ‘The power of legal concepts: the development of a feminist theory
of law’, International Journal of the Sociology of Law 5 (1989) 481–502 and R. Holtmaat,
‘Gender, the Analytical Concept that Tackles the Hidden Structural Bias of Law’ in Recht
Richtung Frauen: Beitrage zur feministischen Rechtswisschenschaft (Lachen/St Gallen:
Dike Verlag 2001) 159–82 . A methodology for such an analysis has been developed in
R. Holtmaat, Towards Different Law and Public Policy: The Significance of Article 5a
CEDAW for the Elimination of Structural Gender Discrimination (Doetinchem: Reed
Business Information, 2004).
24
CEDAW Preamble, paras. 13 and 14.
25
Below in this chapter I will argue that a wide interpretation of Article 5 of the CEDAW
allows us to include men as well as intersexual and LGBT (lesbian, gay, bisexual and
transgender) people who suffer from gender stereotypes and strict masculinity codes,
under the protection against discrimination on the basis of this Convention.
26
Holtmaat, ‘European Women and the CEDAW Convention’, and Holtmaat and Tobler,
‘CEDAW and the European Union’s policy’.
27
K. Crenshaw, ‘Demarginalizing the intersection of race and sex, a black feminist critique
of antidiscrimination doctrine, feminist theory, and antiracist politics’, University of
Chicago Legal Forum (1989) 139–67.
9781107034624c03_p95-123.indd 100 3/25/2013 8:01:46 PM

women.28 Rosenblum presents an important argument in an attempt to
answer this question positively: the word ‘sex’ might be understood to
include not only the male and female sex but all kinds of sexes, includ-
ing transgendered, intersexed and other differently sexed and gendered
people.29 To me, this is not a convincing reason to change the scope of
the Convention. A prohibition of discrimination on the grounds of sex is
commonly interpreted in a binary or bipolar scheme in which the (pre-
sumably essential) male and female sexes are compared to one another,
and where only one of the two sexes suffers a certain disadvantage, the
non-discrimination norm becomes applicable. The vast (feminist) liter-
ature shows the strong tendency toward assimilation to the male norm
that is inherent in sex discrimination law as it has been constructed since
the 1970s.30 Changing the understanding of sex to include ‘other’ sexes as
well might appear to be as difficult and controversial as acknowledging
that differences between men and women are culturally and socially con-
structed instead of ‘natural’ or ‘God-given’. The Dutch (male) professor of
Constitutional Law, Henc van Maarseveen, in an early comment on the
Women’s Convention, congratulated the drafters for the fact that it pro-
hibits discrimination of women. Transforming the demand for women’s
equality into a demand for sex equality, in his view, takes the sting out
of the prohibition of discrimination because it soon will be used mainly
by dominant, well-positioned men to demand whatever small ‘advantage’
women might have over them: ‘The person who has the power of defini-
tion, who succeeds at defining discrimination against women as sex dis-
crimination, takes the sting out of the matter and at the same time does
not have to fear much from it anymore.’31 The Convention is rightfully
directed at the elimination of discrimination against women, because to
the present day it is mostly men who set the standards of behaviour for
women in many areas of life, 32 most notably in respect to family relations
28
D. Rosenblum, ‘Unisex CEDAW, or what’s wrong with women’s rights’, Columbia Journal
of Gender and Law 20 (2011) 98–194 and B. E. Herná ndez-Truyol, ‘Unsex CEDAW? No!
Super-sex it!’, Columbia Journal of Gender and Law 20 (2011) 195 –223.
29
Rosenblum, ‘Unisex CEDAW’ at 125.
30
A summary of these discussions may be found in Fredman, ‘Beyond the Dichotomy of
Formal and Substantive Equality’.
31
H. Van Maarseveen, ‘Internationaal vrouwenrecht. Een afzonderlijk rechtsgebied?’ in
H. Van Maarseveen et al. (eds.), Internationaal recht en vrouwen (Deel 1 Commentaren)
(Zwolle: Tjeenk-Willink, 1987) 69–81 at 74–5. (Quote translated from Dutch by the author).
See also C. Smart, Feminism and the Power of Law (London: Routledge, 1989) at 2.
32
Although gender stereotypes and (separate) gendered roles for women and men also lead
to ‘harnessed’ ideas about masculinity and to men being imprisoned in male roles and
tasks, men at the same time make use of gender differences to dominate women. See
9781107034624c03_p95-123.indd 101 3/25/2013 8:01:46 PM

and childrearing, through firmly-entrenched laws and practices that pre-
cisely describe women’s inferior (and men’s superior) roles and oppor-
tunities in life. But men, to a great extent, also determine the culture of
workplace relations,33 the ways people operate in economic or financial
affairs,34 and the ‘culture of politics’.35
4 The additional value of the Women’s Convention

In early feminist legal literature on international human rights law, the
Women’s Convention was not welcomed as an important contribution
for the advancement of the human rights of women. On the contrary, it
was often heavily criticised for having very limited instrumental value,
because it lacks an adequate system of supervision and because there
are ample possibilities for States Parties to make reservations.36 Further
points of critique were that the Convention only requires States Parties
to take appropriate measures and does not impose clearly defined obli-
gations backed up by effective deterrent sanctions,37 and that it does not
Cohen, ‘Keeping men “men” and women down’ at 523, who distinguishes between ‘hege-
monic masculinity’ and ‘hegemony by men’. ‘Hegemonic masculinity … works to subor-
dinate both women and non-hegemonically masculine men. It subordinates women by
definition, as hegemonic masculinity is associated with characteristics that allow men to
subordinate women; it subordinates other men, non-hegemonically masculine men, by
labelling their expressions of personhood as inferior to “true” manhood.’
33
Sexual harassment very often being part of the culture at the workplace and on that
ground being presented as ‘normal’ behaviour. See for example, A. McKinnon and T. I.
Emerson, Sexual Harassment of Working Women: A Case of Discrimination (New Haven:
Yale University Press, 1979).
34
According to feminist critiques, thereby causing fi nancial and economic crises and
unsustainable economic development. See, for example, J. K. Gibson-Graham, The End
of Capitalism (As We Knew It): A Feminist Critique of Political Economy – 10 Years On
(Minneapolis: University of Minnesota Press, 2006).
35
See, for example, D. Alexander and K. Andersen, ‘Gender as a factor in the attribution of
leadership traits’, Political Research Quarterly 46 (1993) 527.
36
See H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist
Analysis (Manchester University Press, 2000) at 21 See also C. I. Nyamu, ‘How should
human rights and development respond to cultural legitimization of gender hierarchy
in developing countries?’, Harvard International Law Journal 41 (2000) 381–418 at 391.
Nyamu discusses the fact that attempts by human rights activists to fi nd a legal basis for
State responsibility for discrimination against women often fail because many (mainly
Islamic) States have made reservations to Articles 2 and 16 of the Convention.
37
See, for example, A. X. Felmeth, ‘Feminism and international law. Theory, method-
ology and substantive reform’, Human Rights Quarterly 22:3 (2000) 658 –733 at 710 and
H. Charlesworth, C. Chinkin and S. Wright, ‘Feminist approaches to international law’,
The American Journal of International Law (1991) 613–45 at 634.
9781107034624c03_p95-123.indd 102 3/25/2013 8:01:46 PM

oblige States Parties to take positive measures. Charlesworth and Chinkin
concluded that: ‘For these reasons, even the comparatively broad defini-
tion of discrimination contained in the Women’s Convention may not
have much cutting edge against the problems women face worldwide.’38
More importantly, the Convention was blamed for using a defi nition
of equality in terms of ‘equal to men’: ‘equality is defined as being like a
man’.39 On the basis of a textual analysis, it was stated that the Convention
requires a comparison to be made with a male standard, which means in
order to get equal rights, women must assimilate to the male norm.40 This
(supposed) emphasis on formal equality misjudges the underlying struc-
tures and power relations that contribute to the oppression of women.41
Summing up the critique, Charlesworth, Chinkin and Wright conclude
that ‘the Women’s Convention … is an ambiguous offer. It recognizes dis-
crimination against women as a legal issue but is premised on the notion
of progress through good will, education and changing attitudes and
does not promise any form of structural, social or economic change for
women’.42 Other commentators, like Lijnzaad and Burrows, did acknowl-
edge that the Convention covers a broad area and that it goes further than
the elimination of (formal) discrimination as it also requires the elimi-
nation of gender stereotypes. Nevertheless, these authors also concluded
that it is an ‘instrument without teeth’.43
It is very regrettable and damaging that such outdated opinions about
the limited value of the Women’s Convention are still echoed in con-
temporary academic literature, where authors repeat the view that the
Convention might do more harm than good. These opinions have argu-
ably been expressed44 without any apparent knowledge of the practice
38
Charlesworth and Chinkin, The Boundaries of International Law at 230.
39
Charlesworth et al., ‘Feminist approaches to international law’ at 631.
40
Ibid.
41
Charlesworth and Chinkin, The Boundaries of International Law at 229.
42
Charlesworth et al., ‘Feminist approaches to international law’ at 634.
43
See, for example, L. Lijnzaad, ‘Over rollenpatronen en de rol van het Verdrag’ in A. W.
Heringa, J. Hes and L. Lijnzaad (eds.), Het Vrouwenverdrag. Een beeld van een verdrag
(Antwerp/Apeldoorn: Maklu, 1994) 43–57 and N. Burrows, ‘The 1979 Convention on the
Elimination of all forms of Discrimination Against Women’, Netherlands International
Law Review (1985) 419–60. An extensive discussion of the literature up to 2004 may be
found in Holtmaat, Towards Different Law and Public Policy.
44
See, for example, S. E. Merry, ‘Gender justice and CEDAW: the Convention on the
Elimination of All Forms of Discrimination Against Women’, Journal of Women of the
Middle East and the Islamic World 9 (2011) 49–75 at 53 and 58, who argues, for exam-
ple, that the Convention focuses primarily on equalising women’s status with that of
men, and Rosenblum, ‘Unisex CEDAW’, who (inter alia) takes it that the Convention
9781107034624c03_p95-123.indd 103 3/25/2013 8:01:46 PM

of the last decades of the CEDAW Committee’s work, including the
Committee’s dynamic interpretation of the Convention,45 nor of the ways
in which the Convention is sometimes used by the judiciary,46 nor using
any recent studies on the subject.47
It has been thoroughly analysed and well documented for some time
now that the Women’s Convention in fact offers important additional
value as compared to the (formal) sex equality approach that is predomi-
nant in many national, supranational (for example, the EU) and inter-
national legal systems.48 This development of the interpretation of the
Convention has been stimulated inter alia by a series of studies that were
conducted in the Netherlands,49 which in turn have inspired the CEDAW
‘provides a first step, but not a workable solution to inequality’ (at 113) and that ‘most of
the CEDAW provisions follow a formal equality yardstick’ (at 137).
45
Which was extensively documented in Holtmaat, Towards Different Law and Public
Policy ; Holtmaat and Tobler, ‘CEDAW and the European Union’s Policy’; F. Raday,
‘Culture, Religion, and CEDAW’s Article 5(A)’ in H. B. Schöpp-Schilling and C.
Flinterman (eds.), The Circle of Empowerment (New York : The Feminist Press, 2007)
68–85; R. Holtmaat, ‘Preventing Violence Against Women: The Due Diligence Standard
and Article 5(a) CEDAW’ in C. Benninger-Budel (ed.), Due Diligence and its Application
to Protect Women from Violence (Leiden/Boston: Martinus Nijhoff Publishers, 2008)
225–39; and Cook and Cusack, Gender Stereotyping.
46
See for example, the important study of Cook and Cusack on gender stereotyping and
the way in which judges deal with that issue, sometimes with a call on CEDAW. Cook
and Cusack, Gender Stereotyping. A recent example of ‘good judiciary practice’ is the
landmark decision of the Shah Alam High Court in Malaysia in the case of Noorfadilla
where this Court deemed CEDAW directly applicable in a pregnancy discrimination
case (Decision of 12 July 2011; on fi le with the author).
47
Although her article was published in 2011, Merry (‘Gender justice and CEDAW’) calls
Bayefsky’s study (The UN Human Rights Treaty System: Universality at the Crossroads
(Ardsley, NY: Transnational Publishers, 2001)) ‘recent’ (at 52). Her most recent literature
reference on CEDAW concerns Schöpp-Schilling and Flinterman’s 2007 book Circle of
Empowerment; she does not quote any other material between 2001 and 2010. She there-
fore misses out on many other relevant publications in terms of the topic of her article
(see, for example, the publications mentioned in this chapter). Rosenblum, according to
his footnotes, hardly read any documents from the CEDAW Committee and sticks to
a quite literal interpretation of the Convention, based on the text as it was adopted in
1979 – as he himself acknowledges in footnote 24 of his article ‘Unisex CEDAW’.
48
Christine Chinkin, who has taken part in the project to put together the CEDAW
Commentary, has now fully acknowledged the Convention’s great potential in contribut-
ing to the enhancement of women’s human rights. Chinkin wrote the chapter on violence
against women (VAW) in that commentary and was one of the editors of that book. See
also E. Sepper, ‘Confronting the “sacred and unchangeable”: the obligation to modify
cultural patterns under the Women’s Discrimination Treaty’, University of Pennsylvania
Journal of International Law 30 (2008), 585 –639.
49
The Dutch government actively stimulated legal research in the area of CEDAW. See
van den Brink’s chapter on the implementation of CEDAW in the Netherlands in this
volume.
9781107034624c03_p95-123.indd 104 3/25/2013 8:01:47 PM

Committee to elaborate on a broader interpretation of the Convention’s
object and purpose. In these studies it was recognised that the Women’s
Convention not only addresses unequal treatment of women (as com-
pared to men) in laws and public policies or in policies of employers, for
example, but also addresses other forms of gender-specific discrimina-
tion such as violence against women, polygamy and to the failure to pro-
vide adequate health care to women, both in public and private life.50 It
was found that the Convention admits to the existence of the unequal
power relations between the sexes by taking an asymmetrical approach
to discrimination, that it is quite unique in its recognition of the persist-
ently damaging role of gender stereotypes, and that it entails a broad,
encompassing approach to the principle of equality between the sexes,
not only requiring formal and substantive equality but also striving for
transformative equality. In the remaining part of this chapter I will con-
centrate on the Convention’s role in combating gender stereotypes and in
enhancing transformative equality.
5 The triple approach to equality in the Women’s Convention

On the basis of an analysis of the nature and structure of the Convention
by an independent commission of experts,51 in 1998 the Dutch govern-
ment adopted the view that the Convention’s overall aim to eliminate
all forms of discrimination against women can be divided into three
sub-aims.52 The CEDAW Committee, in its Concluding Observations
on the second and third Country Reports of the Netherlands, stated in
2001 that it appreciated this work and in the same document subscribed
50
See the CEDAW Committee’s General Recommendations 12, 19, 21 and 24.
51
See L. S. Groenman et al., Het vrouwenverdrag in Nederland anno 1997 (The Hague:
Ministerie van SZW, 1997). The Groenman Commission (named after its chair) was
installed by the Dutch government to write a report about the implementation of the
Convention in the Netherlands. The present author was a member of this Commission.
Their report was submitted to the Second Chamber of Parliament in 1998. A translation
in English of the main chapters of this report is included as an appendix in Holtmaat,
Towards Different Law and Public Policy. The Commission based itself on the historical
background and a textual analysis of the Convention, on the General Recommendations
and Concluding Comments of the Committee, and on the relevant legal literature up to
the year 1996.
52
This position was confirmed in the second and third Country Reports of the Netherlands
to the CEDAW Committee (submitted in 2000, discussed by the CEDAW Committee in
2001).
9781107034624c03_p95-123.indd 105 3/25/2013 8:01:47 PM

to the Dutch analysis of the Convention’s threefold aims.53 In its General
Recommendation No. 25 on temporary special measures on the ground
of Article 4(1), adopted in January 2004,54 the Committee confirmed that
the object and purpose of the Convention is three-fold.:
1. to ensure full equality of women before the law and protection against
discrimination in the public as well as the private sphere;
2. to improve the de facto position of women; and
3. to address prevailing gender relations and the persistence of
gender-based stereotypes.
These three purposes reflect a threefold interpretation of the fundamental
principle of equality. Full equality between men and women, a principle to
which the Convention refers in many of its Articles, means much more
than equality before and in the law. Of course, Article 2 makes it unam-
biguously clear that women have equal rights under the law and should
not be treated differently purely because they are women. Women have
the right to formal equality. In addition, the Convention in its Articles
3, 4 and 24 makes it clear that all appropriate measures need to be taken
in order to achieve women’s de facto equality with men. This means that
sometimes (in the language of Article 4) temporary special measures
are necessary. With the inclusion of the right to substantive equality, the
Convention acknowledges that individual human beings, through place
of birth, mental and physical capacities, wealth, development of the coun-
try, discrimination and a whole range of other factors, in fact have very
different positions and possibilities in life. Women, in many cultures
around the world, are in a position of inequality and oppression not only
because of physical or biological differences, but also because of persistent
political, social, economic and cultural discrimination against them.
The third-mentioned objective of the Convention, that is addressing
prevailing gender relations and the persistence of gender-based stereo-
types, is laid down in Article 5, which provides that:
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and
53
25th Session of the CEDAW Committee, July 2001, A/56/38, CEDAW/C/SR. 512 and 513,
para. 196.
54
CEDAW Committee, General Recommendation 25 on Article 4, para. 1, of the
Convention on the Elimination of All Forms of Discrimination against Women, on tem-
porary special measures (Thirteenth Session, 2004), paras. 6 and 7.
9781107034624c03_p95-123.indd 106 3/25/2013 8:01:47 PM

customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped
roles for men and women;
(b) To ensure that family education includes a proper understanding of
maternity as a social function and the recognition of the common
responsibility of men and women in the upbringing and development
of their children, it being understood that the interest of the children
is the primordial consideration in all cases.55
In short, the Article, in its two parts, calls for the modification of gen-
der stereotypes and fi xed parental gender roles.56 It should be read in
conjunction with Article 2(f), which requires that States Parties ‘take all
appropriate measures, including legislation, to modify or abolish existing
laws, regulations, customs and practices which constitute discrimination
against women’. Rebecca Cook writes that these Articles combined mean
that States Parties are obliged to:
reform personal status laws and to confront practices, for instance of reli-
gious institutions, that, while claiming to regard the sexes as different but
equal, in effect preclude women from senior levels of authority and influ-
ence. These articles strongly reinforce the commitment to eliminate all
forms of discrimination, since many pervasive forms of discrimination
against women rest not on law as such but on legally tolerated customs
and practices of national institutions. 57
According to the CEDAW Committee, Article 5 means that the Convention

acknowledges that gender stereotypes and fi xed parental gender roles
‘affect women not only through individual acts by individuals but also
in law, and legal and societal structures and institutions’.58 Therefore, the
Convention not only addresses personal convictions, cultural practices
and traditional values, but also addresses the systemic and structural dis-
crimination against women that is embedded in the country’s laws and
55
The Article is part of the first section of the Convention, which contains the general obli-
gations for the States Parties. These norms are to be regarded on their own merits, but
they are also indicative for the interpretation of all other Articles of the Convention.
56
See Holtmaat, ‘Article 5’ for a more extensive analysis of the content and scope of this
Article.
57
R. J. Cook, ‘State Accountability under the Convention on the Elimination of All Forms
of Discrimination Against Women’ in R. J. Cook (ed.), Human Rights of Women. National
and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994)
228–56, at 239–40.
58
CEDAW Committee, General Recommendation No. 25, para. 7. See also e.g. CEDAW
Committee, Luxembourg (2000), A/55/38, CEDAW/C/SR.446 and 447, para. 404.
9781107034624c03_p95-123.indd 107 3/25/2013 8:01:47 PM

policies, and – in order to overcome the structural discrimination that
results from that inequality – calls for transformative equality or ‘equality
as transformation’.59
It should be noted that, in this regard, the Women’s Convention has
taken the lead. After its adoption, similar provisions were included in
many other international documents.60 Some international documents use
wording similar to that of Article 5.61 A wide range of documents express
the recognition of maternity as a positive social function and the sharing
of responsibilities of parents as important values and approaches.62 A very
clear example may be found in the Committee on Economic, Social and
Cultural Rights (CESCR) General Comment 16, where it is fully acknowl-
edged that gender stereotypes and fi xed parental gender roles stand in the
way of the fulfilment of all of women’s human rights.63 The CESCR defines
gender stereotyping as a form of discrimination against women,64 thereby
reflecting a wide acceptance of the CEDAW Committee’s analysis of the
causes and consequences of discrimination against women. Traditional
gender roles, prejudices and stereotypes are seen by the CESCR and also
by the Human Rights Committee (HRC) as important obstacles to the
full enjoyment of women’s social and economic rights.65
6 Article 5 and discrimination against women

Although Article 5 does not contain the word discrimination, and Article
1, in which discrimination is defi ned, does not mention gender stereo-
types and fi xed parental gender roles, these phenomena can be related
to discrimination against women in two ways. A first line of reasoning is
that, through the inclusion of Article 5, especially when read in combina-
tion with the Convention’s Preamble, the Convention acknowledges that
59
Fredman, ‘Beyond the Dichotomy of Formal and Substantive Equality’ at 116. See also
further below in this chapter.
60
See Cook and Cusack, Gender Stereotyping at 145–6 and 174.
61
For example, the Convention of Belém do Para: Articles 7(e) and 8(b); the Protocol to the
Banjul Charter on the Rights of Women in Africa, Articles 2(2) and 4(d) and Articles 6
and 13.
62
For example, the Preamble and Article 18(1) of the CRC; Article 17 American Convention
on Human Rights (ACHR); UN CCPR ‘General Comment 19’ (1990) UN Doc. HRI/
GEN/1/Rev.1 para. 8.
63
UN CESCR ‘General Comment 16’ (2005) UN Doc. E/C.12/2005/4, para. 14.
64
UN CESCR ‘General Comment 20’ (2009) UN Doc. E/C.12/GC/20, para. 20.
65
For example, UN CESCR ‘General Comment 16’ (2005) UN Doc. E/C.12/2005/4, para.
14; UN CCPR ‘General Comment 28’ (2000) UN Doc. CCPR/C/21/Rev.1/Add.10, paras. 5
and 25.
9781107034624c03_p95-123.indd 108 3/25/2013 8:01:47 PM

gender stereotypes and fi xed parental gender roles lie at the base or are a
root cause of discrimination against women.66 In that way, it looks as if
Article 5 is not an integral part of the prohibition of discrimination under
the Convention, but that it merely tells us something about the ultimate
causes of discrimination.67 Secondly, in some views, the inclusion of this
provision in the Convention, especially when read in conjunction with
Article 2(f), means that discrimination, as defined in Article 1, also covers
prejudices and all customs and practices that are based on the inferiority
of women and on stereotyped roles for men and women. This means that
these phenomena should be seen as discriminatory in themselves.68
The CEDAW Committee sometimes points to stereotypes as causing
discrimination and sometimes calls stereotypes discriminatory per se.
Sometimes, both views are present in one text. An example thereof can be
found in a Concluding Observation about Burundi:
The Committee continues to be concerned about the persistence of
patriarchal attitudes and deep-rooted stereotypes regarding the role
and responsibilities of men and women in society, which discriminate
against women. The Committee is also concerned that the preservation of
negative cultural practices and traditional attitudes serves to perpetuate
women’s subordination in the family and society and constitutes a serious
obstacle to women’s enjoyment of their fundamental rights.69
It would be most helpful if the Committee, in a new General

Recommendation on Article 5, would be more explicit and specific about
the discriminatory nature of gender stereotyping and fi xed parental
gender roles.70
66
Th is is also reflected in the Committee’s appeal of 1986, where it remarks that it is neces-
sary ‘to overcome obstacles to equality arising from prejudices, customs or practices’. UN
Doc. A/41/45, para. 365, as cited by M. Wadstein, ‘Implementation of the UN Convention
on the Elimination of All Forms of Discrimination Against Women’, Human Rights
Quarterly 10 (1988) 5 –21 at 13.
67
For example, Wadstein, ‘Implementation of the UN CEDAW’, and Lijnzaad, Over
rollenpatronen’.
68
ECOSOC General Comment No. 20, E/C.12/GC/20, 25 May 2009, para. 20. S. Cusack
and R. J. Cook, ‘Combating Discrimination on Sex and Gender’ in C. Krause and M.
Scheinin (eds.), International Protection of Human Rights: A Textbook (Åbo: Institute
for Human Rights, Åbo Akademi University, 2008) at 222 . See also R. J. Cook and S.
Howard, ‘Accommodating women’s differences under the Women’s Anti-Discrimination
Convention’, Emory Law Journal 56:4 (2007) 1039–91 at 1043.
69
CEDAW Committee, Concluding Observation: Burundi (2008), CEDAW/C/BDI/CO/4,
para. 17 (emphasis added).
70
The CEDAW Committee issued General Recommendation No. 3 on Article 5 in its Sixth
Session in 1987. See UN Doc. A/42/38. See also Cook and Cusack, Gender Stereotyping at
13 and 137ff. and Cusack’s chapter in this volume.
9781107034624c03_p95-123.indd 109 3/25/2013 8:01:47 PM

7 Three strategies to eliminate discrimination against women

The three approaches to equality that were adopted by the CEDAW
Committee should not be seen as competing ways of conceptualising this
basic principle of human rights,71 but should be seen as complementary to
each other. The first five Articles of the Convention make clear that for-
mal, substantive and transformative equality lie at the basis of a simulta-
neously applied (holistic) approach to combating discrimination against
women. For that purpose, three different strategies could and should be
applied by the States Parties to the Convention:
(1) a strategy of giving individuals a legal right (entitlement) to equal
treatment before and in the law (an Individual Rights Strategy; IRS);
(2) a strategy of providing social support to those persons or groups of
persons who have least opportunities to lead a meaningful life as a
human being, for example to those who are disabled or poor, and/
or who are discriminated against on the grounds of (inter alia) sex (a
Social Support Strategy; SSS); and
(3) a strategy to take away the structural causes of such discrimination
through a process of social and cultural change (Strategy of Social and
Cultural Change; SSCC).72
This three-dimensional empowering approach may be illustrated with
the example of violence against women (VAW).73 When one examines
the CEDAW Committee’s Concluding Observations with respect to this
issue, it is clear that the Committee discusses the necessity of measures in
all three areas. It pleads for legal reform, especially in terms of prohibiting
all kinds of VAW; for putting in place protective and preventive meas-
ures; and for putting an end to all gender stereotypes and cultural and
religious practices that sustain the idea of women’s inferiority to men or
that in some way or another make VAW appear as an acceptable social or
cultural practice.74
71
Like the formal and substantive approach, which have been seen as competing inter-
pretations of (legal) equality by many feminist legal scholars. See Fredman, ‘Beyond the
Dichotomy of Formal and Substantive Equality’.
72
See for example, Groenman et al., Het vrouwenverdrag in Nederland anno 1997, and
Holtmaat, Towards Different Law and Public Policy.
73
See Holtmaat, ‘Preventing Violence Against Women’.
74
The ‘case law’ of the Committee on the issue of VAW has been analysed in great depth in
Chinkin’s contribution to the CEDAW Commentary.
9781107034624c03_p95-123.indd 110 3/25/2013 8:01:47 PM

8 Article 5 of the Women’s Convention: the international

legal basis for enhancing transformative equality
Articles 2–5 of the Convention, read together, instruct States Parties to
adopt a comprehensive or holistic strategy to combat discrimination
against women, aiming at formal, substantive and transformative equal-
ity.75 Transformative equality, or ‘equality as transformation’,76 aims at
changing society in such a way that those features of existing cultures,
religions or traditions and of legal, social and economic structures that
obstruct the equality and human dignity of women are subjected to funda-
mental change. This means that ‘States parties are required to undertake
a social re-ordering of their political economy, and the cultural valuations
ascribed to men and women.’77 This requirement has been adopted as an
international legal obligation, where Article 5 ‘requires a modification of
social and cultural patterns of conduct’.78 In other words, it calls for ‘a
possible feminisation of culture, at least of the culture that is represented
in the legal order’. 79 In this view, Article 5 embodies what could also be
phrased as the vehicle for cultural change.80
This analysis of Article 5 was first elaborated in the work of the already
mentioned Dutch Commission of independent experts who carried out
an in-depth study into the nature and scope of the Women’s Convention
at the end of the 1990s.81 On the basis of an analysis of the Committee’s
General Recommendations and Concluding Observations on Article 5,
the Commission held that besides addressing individual beliefs and con-
duct of men and women, this provision calls for eradicating gender dif-
ferences that have become an intrinsic part of a society’s social and legal
structures and systems.82 As a consequence of this, States Parties not only
have to put an end to direct and indirect discrimination against women,
75
Groenman et al., Het vrouwenverdrag in Nederland anno 1997; Holtmaat, Towards
Different Law and Public Policy ; Holtmaat and Tobler, ‘CEDAW and the European
Union’s policy’; and Cook and Cusack, Gender Stereotyping.
76
Fredman, ‘Beyond the Dichotomy of Formal and Substantive Equality’ at 116.
77
Cusack and Cook, ‘Combating Discrimination on Sex and Gender’ at 207. See also Cook
and Cusack, Gender Stereotyping at 5.
78
Fredman, ‘Beyond the Dichotomy of Formal and Substantive Equality’ at 116.
79
Van Maarseveen, ‘Internationaal vrouwenrecht’ at 75.
80
Ibid.; Groenman et al., Het vrouwenverdrag in Nederland anno 1997.
81
Groenman et al., Het vrouwenverdrag in Nederland anno 1997.
82
Ibid. at 27. After the publication of the Groenman report, the Dutch government ordered
a follow-up study in which the content and scope of Article 5(a) of the CEDAW was inves-
tigated in more depth. See Holtmaat, Towards Different Law and Public Policy.
9781107034624c03_p95-123.indd 111 3/25/2013 8:01:47 PM

but they also have to reveal and replace the gender stereotypes that under-
lie existing laws and public policies.83 The Commission argued that:
[I]f this does not happen, the implementation of full equality before the
law and a policy to improve the position of women could sometimes have
contrary effects. The concepts and assumptions that are currently being
used in law and public policies are often coloured by gender stereotypi-
cal relationships and expectations. If these concepts and assumptions are
included in new legislation or new policies, this will lead to unwitting and
unintentional reproduction of gender differences.84
The Commission concluded that on the basis of Article 5, States Parties

are obliged to question the content of existing legal rights and duties from
a gender perspective. This method or strategy ‘creates the possibility that
dominant (male) norms are not assumed to be self-evident. In a number
of areas, this can mean that it is not equal rights or equal opportunities
that must have priority, but that other rights must be developed or other
opportunities must be offered’.85
The CEDAW Committee adopted the principle of transformative
equality in 2004, when in General Recommendation No. 25 it acknowl-
edged that measures must be taken ‘towards a real transformation
of opportunities, institutions and systems so that they are no longer
grounded in historically determined male paradigms of power and life
patterns’. 86
9 Article 5 of the Women’s Convention: freedom,

autonomy and diversity
Article 5 not only subscribes to the principle of women’s equality, but also
expresses the principle of human autonomy or freedom, sometimes also
phrased as the principle of diversity. Combating gender stereotypes and
fi xed parental gender roles is not only required in order to achieve full
equality of women, but also – and perhaps foremost – these cultural trans-
formations are required in order to achieve more freedom, autonomy and
space for diversity for women.
83
Th is methodology is further developed in Holtmaat, Towards Different Law and Public
Policy, Chapters 15 and 16.
84
Groenman et al., Het vrouwenverdrag in Nederland anno 1997 at 27.
85
Ibid. Italics in original. See also Holtmaat, ‘The power of legal concepts’.
86
General Recommendation No. 25, para. 10.
9781107034624c03_p95-123.indd 112 3/25/2013 8:01:48 PM

Above, it was stated that the underlying presumption of the principles
of human equality and dignity87 is that all human beings in principle have
an authentic desire to control their own lives and are deemed capable of
making rational choices for what it means to be living a dignified and
worthy life as a human being. Constructing firm (‘closed’) categories of
human beings, and attributing a set of fi xed (often negative) character-
istics to those who are placed within a particular category, results in a
deprivation of people’s control over their own lives. The gendered cate-
gories of ‘man’ and ‘woman’ or ‘male’ and ‘female’ are examples of such
fi xed social and cultural constructions.88 The social and cultural patterns
of conduct and stereotyped roles that are addressed in Article 5, which are
based on prejudice and on traditional or customary ideas about the inferi-
ority of women, deny the individual woman the possibility to be a person
in her own right and to utilise all of her human capacities and capabilities
in order to lead a meaningful life according to her own interests and con-
victions.89 Gender stereotypes and fi xed parental gender roles therefore
not only deny women the right to be treated respectfully as equal and
dignified human beings, they also deny women the autonomy to live their
lives according to their own interests and convictions about their per-
sonal and unique contribution to sustaining and developing humanity.
Women (and men!) have a fundamental right not to be confined to con-
structed (essentialist) understandings of femininity or masculinity, or to
pre-fi xed (and fi xated) female and male parental roles that are entrenched
in their culture, tradition or religion, as well as in the main social and
legal institutions or organisations of their society. In the words of Cook
and Cusack: ‘Any law, policy or practice that aims to promote substan-
tive equality and non-discrimination must … honour the basic choices
87
The fact that the Preambles of the main Human Rights Covenants all mention equality
and dignity in one breath already indicates that equality is not the sole foundational prin-
ciple of human rights.
88
Gendered categories are often presented as ‘natural’, ‘essential’ or ‘God-given’, that is, as
eternal and unchangeable. I have discussed the role of gender-essentialism in Holtmaat
and Naber, Women’s Human Rights and Culture.
89
M. Nussbaum, Women and Human Development. The Capabilities Approach (Cambridge
University Press, 2000). See also Kang, ‘The burdens of manliness’ at 478, who argues
that guaranteeing the right to self-defi nition is the main objective of (USA) constitu-
tional equality clauses: ‘By the right to self defi nition, I mean the right not to be overly
dominated by government in how I structure and give meaning to my identity.’ The right
to be free from gender stereotypes, in that sense, should also stretch to men, according to
Kang.
9781107034624c03_p95-123.indd 113 3/25/2013 8:01:48 PM

women make (or would like to make) about their own lives, and enable
them to shape or carve out their own identities.’90
The CEDAW Committee has made it clear that a correct implementa-
tion of the Convention requires ‘the recognition that women can have
various roles in society, not only the important role of mother and wife,
exclusively responsible for children and the family, but also as an indi-
vidual person and actor in her community and in the society in gen-
eral’.91 In this way, the Convention recognises that all human being are
equal, have equal rights and deserve respect for their human dignity,
but at the same time they may have very diverse ideas and wishes about
what they actually want to do with their lives.92 Therefore, the con-
cepts of individual autonomy, freedom and diversity are crucial for a
correct understanding of the content and scope of Article 5 and of the
Convention as a whole.
A similar ‘diversity principle’ lies at the basis of all anti-discrimination
clauses in international human rights law and in national constitutions,
which ban unequal and undignified treatment on the basis of an indi-
vidual belonging to a certain ‘category’ or ‘class’ of human beings. Some
categorisations, like those on the basis of race or sex, are deemed to be so
invidious that they are subjected to a ‘strict scrutiny test’ by the judiciary.
As South African Supreme Court Justice Sachs clarified:
[w]hat the Constitution requires is that the law and public institutions
acknowledge the variability of human beings and affi rm the equal respect
and concern that should be shown to all as they are. At the very least, what
is statistically normal ceases to be the basis for establishing what is legally
normative … What becomes normal in an open society, then, is not an
imposed and standardised form of behaviour that refuses to acknowledge
difference, but the acceptance of the principle of difference itself. 93
For all women and men this ‘diversity principle’ is as important as the prin-
ciple of equality per se. But it is important first and foremost for women
and men who do not conform to dominant legal, social and cultural
standards about what it means to be a female or male person. Women’s
90
Cook and Cusack, Gender Stereotyping at 68.
91
CEDAW Committee, Concluding Observations: Suriname (2002), A/57/38 (part II),
CEDAW/C/SR. 557, 558 and 566, para. 48. See also CEDAW Committee, Concluding
Observations: Uzbekistan (2001), A/56/38, CEDAW/C/SR.500, 501 and 507, para. 169.
92
Lijnzaad, ‘Over rollenpatronen’ at 57.
93
Judgment in National Coalition for Gay and Lesbian Equality v. Ministry of Justice,
South African Supreme Court 1999 1 SA 6 (CC), para. 143, as quoted by E. Bonthuys and
C. Albertyn (eds.), Gender, Law and Justice (Cape Town: Juta, 2007) at 28.
9781107034624c03_p95-123.indd 114 3/25/2013 8:01:48 PM

sexuality and their reproductive capacity are crucial for the construc-
tion of gender stereotypes and fi xed parental gender roles in all traditions
and cultures and in all periods of human history up to the present time.
This means that the construction of human sexuality as (exclusively) het-
erosexual forms part of the construction of patriarchal gender relations.94
The most blatant transgression of the patriarchal female gender identity
and her fi xed gender (motherly) role is the lesbian woman who chooses to
renounce a male sexual partner and thereby also rejects the protection of
the male head of household, and all other forms of male supervision and
control of her life.95 As was discussed above,96 the obligation to modify
gender stereotypes and fi xed parental gender roles is also of great impor-
tance to men who do not want to conform to their assigned ‘masculine’
identity and gender role. Beyond that, this obligation is equally impor-
tant for all ‘differently sexed’ (intersex, transsexual) people and people
with a ‘different sexuality’ (gay, lesbian and bisexual people).97 Gender
stereotypes and fi xed parental gender roles directly affect the lives of all
persons who renounce traditional heterosexual and patriarchal feminine
and masculine gender identities and gender roles.98 Through a wide inter-
pretation of Article 5, all of these situations may be brought under the
94
See J. Butler, Gender Trouble: Feminism and the Subversion of Identity, 1st edn (London/
New York : Routledge, 1990) at 1–34 and 110–28 and J. Butler, ‘Imitation and Gender
Subordination’ in D. Fuss (ed.), Inside/Out: Lesbian Theories, Gay Theories (New York :
Routledge, 1991) at 13. See A. M. Gross, ‘Sex, love, and marriage: questioning gender and
sexuality rights in international law’, Leiden Journal of International Law 21 (2008) 235 –
53. At 251, Gross summarises Butler’s position as follows: ‘the division in two genders as
part of the institution of compulsory heterosexuality, (which) requires a binary polarised
gender system since patriarchy and compulsory heterosexuality are only possible in a
world built on such a hierarchised division.’ Real liberation or emancipation of women
and gay and lesbian people, according to this author, requires ‘undoing gender’, instead
of accepting the thus pre-fi xed gender categories and identities (as either being male/
female or heterosexual/homosexual). Another way of expressing the same principle is
saying that a transformation of gender and sexuality needs to take place. See also Gross,
‘Sex, love, and marriage’ at 252.
95
Lesbian women being gang raped in order ‘to cure them’ from their outrageous ‘abnor-
mal’ sexual preference, is an example of this kind of ‘correction’. See for example, Report
of the UN Special Rapporteur on the question of torture and other cruel, inhuman or
degrading treatment or punishment, Commission on Human Rights, March 2006, UN
Doc. E/CN.4/2006/6/Add.1, paras. 180 and 183.
96
See text in footnotes 14 and 32.
97
That is, different from the heterosexual norm and other than the binary male–female
scheme.
98
Cook and Cusack, Gender Stereotyping at 2.
9781107034624c03_p95-123.indd 115 3/25/2013 8:01:48 PM

scope of the Convention.99 It seems that the Committee, although still in
a careful way, is now willing to do so.100
10 States Parties’ obligations to modify gender

stereotypes and State sovereignty
The existence of gender stereotypes and fi xed parental gender roles is
linked to cultural patterns, customary rules, religious prescriptions or
beliefs and traditions101 in a particular society or country. This means that
the international obligation to modify gender stereotypes and fi xed par-
ental gender roles runs against the vested interests of many stakeholders
in keeping women in their ‘proper’ (traditional) place.102 Often they justify
or defend women’s inequality or women’s ‘different’ roles with the argu-
ment for the freedom of religion or the right to maintain or preserve a
particular culture.103 Yakin Ertürk, the former UN Special Rapporteur
on violence against women, has observed that: ‘despite the fact that the
international community has recognised the universality of rights, iden-
tity politics and cultural relativist paradigms are increasingly employed
to constrain in particular the rights of women’.104 And in the words of
99
It is therefore not necessary to ‘unisex’ CEDAW, as is argued by Rosenblum in ‘Unisex
CEDAW’. Th is author does discuss Article 5 of the CEDAW, but does not give much
attention to its relevance for intersex and LGBT people.
100
In 2009 the Committee recognised that women may be discriminated against on the
grounds of their sexuality, thereby possibly including their homosexuality. However,
it seems to be hesitant to use that word or to use the word lesbianism. See, for exam-
ple, CEDAW Committee, Concluding Observations: Guatemala, CEDAW/C/GUA/
CO7 (2009) para. 19, where it speaks of sexuality in general. It has mentioned sexual
orientation and gender identity in CEDAW Committee, Concluding Observations:
Panama, CEDAW/C/PAN/CO/7 (2010) para. 22. In its General Recommendations on
older women (GR27) and on Article 2 (GR 28), adopted in October 2010, the CEDAW
Committee has explicitly mentioned sexual orientation and gender identity. See www.
iglhrc.org/cgi-bin/iowa/article/takeaction/resourcecenter/1235.html (last accessed 11
January 2012).
101
In the following, I will capture all of these phenomena under the word ‘culture’ or ‘cul-
tural’ (without the quotation marks).
102
See Holtmaat and Naber, Women’s Human Rights and Culture, Chapter 3 for the descrip-
tion of various stakeholders.
103
There is extensive international legal and academic debate about the ‘clash’ between
women’s human rights and the right to culture. See Holtmaat and Naber, Women’s
Human Rights and Culture, Chapter 3 para. 2.5. It is especially contested whether the
right to culture prevails over women’s human rights or vice versa.
104
UN Special Rapporteur on Violence Against Women (VAW), Report on ‘Intersections
between culture and violence against women’, 17 January 2007, UN Doc. A/HRC/4/34,
para. 68.
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the Independent Expert in the Field of Cultural Rights, Farida Shaheed:
‘[T]he challenge is to ensure that the right to pursue, develop and pre-
serve culture in all its manifestations is in consonance with and serves to
uphold the universality, indivisibility and interdependence of all human
rights’.105
Apart from individual men and women, heads of families and tradi-
tional or religious leadership, the State itself may be an important stake-
holder in maintaining the status quo of unequal gender relations.106 This
is because the construction of a particular cultural specificity as regards
‘true’ gender relations may influence to a high degree a State’s perception of
its (presumed) essential national identity through which it distinguishes
itself from other States.107 The construction of particular gender identities
and parental gender roles very much lies at the basis of the claimed iden-
tity of many (traditionalist) cultures, which are adopted and presented
by political leaders or national governments as the one and only national
culture.108 National identities often coalesce around women’s bodies and
incorporate racial or ethnic judgements.109 Therefore, States may have a
great interest in maintaining or sustaining the existing gendered social
and cultural order because this may (so to say) ‘keep the country together’.
Often, such culture is expressed in rules and practices that deny women’s
equality and curtail women’s freedoms. These rules or practices are not
just expressions of oppression or hatred of women, but serve to preserve
and sustain the group’s or nation’s particular cultural or religious identity
or even its very existence. Sometimes, a government goes as far as pro-
claiming that the prevailing gender relations within the family form ‘the
105
Quote by Farida Shaheed, Independent United Nations Expert in the field of Cultural
Rights, in her fi rst press Statement on 23 November 2009. See: www.ohchr.org/en/
NewsEvents/Pages/DisplayNews.aspx?NewsID=9619&LangID=e (last accessed 20 July
2010).
106
As becomes apparent from the work of Ann Hellum, State resistance to women’s
equality does not only come from the side of (religious) dictatorships in the South. See
Hellum’s chapter in this volume and A. Hellum, ‘The Global Equality Standard Meets
Norwegian Sameness’ in A. Hellum, S. Ali and A. Griffiths (eds.), From Transnational
Relations to Transnational Laws: Northern European Laws at the Crossroads (London:
Ashgate, 2010). An example of the ambivalent responses of States (and their organs) to
the CEDAW is given in Ali’s chapter in this volume.
107
Gross, ‘Sex, love and marriage’.
108
Most famous in this respect are two crucial symbols of cultural unity in France, consist-
ing of the positive symbolic images of two women: Jeanne D’Arc and ‘Marianne’.
109
L. Vollp, ‘Blaming culture for bad behaviour’, Yale Journal of the Humanities 12 (2000)
89–115 at 90.
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foundation of the State’.110 A particular construction of gender relations is
often embedded in the State’s constitution, in order for the State to distin-
guish itself from other States (e.g. from a State from which it has become
independent, after a long duration of colonisation). An example is Article
41(2) of the Irish Constitution, which reads as follows:
1° In particular, the State recognises that by her life within the home,
woman gives to the State a support without which the common good
cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not
be obliged by economic necessity to engage in labour to the neglect of
their duties in the home.
This provision, according to the CEDAW Committee, reflects a stere-
otyped image of the roles of women ‘in the home and as mothers’.111
Demanding that a State Party modify gender stereotypes and fixed paren-
tal gender roles, as Article 5 does, in such cases strikes at the heart of the
State’s fundamental understanding of its own identity.
From this perspective, it will come as no surprise that there is strong
(most often implicit) resistance by States to implement international pro-
visions that oblige them to promote gender equality. This observation
links up with important research findings from which it appears that
‘States apparently are more willing to negotiate, in other words seem less
attached to their sovereignty, when material issues are at stake, as opposed
to normative questions’.112 The conclusion from this research is that ‘all
States shared their reluctance to part with social and cultural practices’,
and that ‘social values, more so than economic or military power, are
the strongest aspects of global civil society’s challenges to autonomy and
legitimacy’.113 This is even more so when the construction of fi xed gender
110
CEDAW Committee, Concluding Observations: Guatemala (1994), A/49/38, CEDAW/C/
SR. 242 and 246, para. 70.
111
CEDAW Committee, Concluding Observations: Ireland (1999), A/54/38, CEDAW/C/
SR. 440 and 441, paras. 193–194. Catholic Ireland thus wanted to distinguish itself
from Protestant Britain. See M. van den Brink, ‘Gendered Sovereignty? In Search of
Gender Bias in the International Law Concept of State Sovereignty’ in I. Boerefijn and
J. Goldschmidt (eds.), Changing Perceptions of Sovereignty and Human Rights. Essays in
Honour of Cees Flinterman (Antwerp: Intersentia, 2008) 65–83.
112
See van den Brink, ‘Gendered Sovereignty?’ at 73, who discusses the research of
E. Friedman, K. Hochstetler and A. M. Clark, ‘Sovereignty challenges and bargains
on the environment, human rights, and women’, International Studies Quarterly 44:4
(2000) 591–614.
113
Van den Brink, ‘Gendered Sovereignty?’ at 75, quoting Friedman et al., ‘Sovereignty
challenges and bargains on the environment’ at 611–12.
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identities and parental gender roles lies at the basis of the national identity
of a country, which is the case with many post-colonial and traditionalist
countries that have strong links with certain religious beliefs or religious
institutions.
From the very beginning the CEDAW Committee has acknowledged
that a change of culture requires the strong political will of States Parties
to do so effectively: ‘[M]embers emphasised that attitudes and behaviour
could be changed if there was political will and broad support’.114 Even if
a State is willing to bow its head under international pressure or is volun-
tarily willing to accept international human rights standards, it may be
very difficult for it to effectively implement these norms in the internal
legal order as well as at the horizontal level (i.e. between private parties or
citizens among themselves). This is particularly so when an international
norm requires a change of well-established patterns of conduct that are
based on tradition, religion, custom or culture of many of its inhabitants,
as is the case with Article 5. In order to be able to implement this norm,
it is necessary that the State is legally and culturally legitimised to enforce
or even promote such change.115 The necessary formal legal legitimisation
for the implementation of Article 5 can be found in the fact that the State
has ratified this Convention.116 After ratification of a human rights con-
vention, a national government – be it monistic or dualistic with respect
to the effects of international law on its own legal system – may argue
(for example in its parliament, answering political opposition) that it is
obliged to implement the norms that are included in it. However, cul-
tural legitimisation, especially when it concerns equality between men
and women, is far more difficult to achieve because it requires modifying
or overcoming very deeply rooted gender stereotypes and fi xed parental
gender roles.
The effectiveness of programmes to modify gender stereotypes and
fi xed parental gender roles will most probably be very limited if the State
Party internally lacks cultural legitimisation or symbolic validation117
to do so; that is, if there is no connection with norms and values that
114
CEDAW Committee, Concluding Observations: Ecuador, UN Doc.A/49/38, 13th
Session (1994) para. 524.
115
See C. Packer, Using Human Rights to Change Tradition (Antwerp/Oxford/New York :
Intersentia, 2002) at 15.
116
States Parties are obliged to implement international norms in good faith, and so on. See
Cook, ‘State Accountability under the CEDAW’ at 229ff. See also CEDAW Committee,
Concluding Observations: Portugal, CEDAW/C/PRT/CO/7 (2008) para. 29.
117
Herná ndez-Truyol, ‘Out of the shadows’148ff.
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(also) exist in its society, in particular with norms and values that women
themselves consider to be of crucial importance for their lives and for
the realisation of their human rights. States will certainly have difficulty
finding this (internal) cultural legitimisation when there are important
cultural majorities or even minorities that oppose women’s equality. In
such situations women’s (equal) rights are often constructed as oppo-
site to a nation’s culture or to particular (minority or majority) religious
rights. This makes implementation, even by governments who are highly
committed to women’s human rights, a very difficult issue. One of the
strategies of advocates of women’s human rights could be to help the
State Party to enhance or broaden this necessary cultural legitimisa-
tion by way of an intercultural or cross-cultural dialogue about women’s
rights.
11 Enhancing a dialogue to avoid a clash between

women’s human rights and culture
In order to achieve a higher level of cultural acceptance of the norm of
women’s equality, it is important to stimulate a dialogue between the
State and international actors (for instance the CEDAW Committee), but
also to promote and enhance a dialogue between the State and the main
internal stakeholders, that is, religious leaders, community leaders and
(women’s) NGOs.118 Many academic commentators acknowledge that the
only way out of a deadlock between opposite and fi xed positions about
women’s human rights and culture is to engage in an intercultural or
cross-cultural dialogue.119 When one has to choose between, on the one
hand, forcing some cultures to eradicate or abolish traditional practices
that are deemed to violate women’s human rights (and will thereby most
likely generate even more resistance), and on the other hand the posi-
tion of cultural relativism, in which moral or ethical values, including
the values of women’s equality and dignity, no longer seem to have any
118
See the recommendations made by the CEDAW Committee in its Concluding
Observations, as cited below in notes 123 and 124.
119
For example, A. Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s
Rights (Cambridge University Press, 2001); A. Phillips, Multiculturalism without Culture,
(Princeton University Press, 2007); Nyamu, ‘How should human rights and develop-
ment respond to cultural legitimization’; and A. A. An-Na’im, ‘Problems of Universal
Cultural Legitimacy’ in A. A. An-Na’im and Francis M. Deng (eds.), Human Rights in
Africa. Cross Cultural Perspectives (New York : Brookings Institution, 1990) 331–67.
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weight, the most effective and safe middle way seems to be to try to start
understanding each other and speaking with each other. In the words of
Celestine Nyamu: ‘The non-abolitionist approach, therefore, calls for a
non-hegemonic human rights practice that incorporates the two simul-
taneous processes of internal discourse and cross-cultural dialogue, in
order to find legitimacy for human rights principles within all cultures.’120
Engaging in such a dialogue is also seen as the only way to guarantee that
women’s voices are heard in the process of the implementation of human
rights standards.121
In its Concluding Observations, the CEDAW Committee often stresses
the necessity of engaging in a dialogue with civil society about cultural
changes that need to take place in order to put an end to discrimina-
tion against women. It ‘urges the State party to intensify co-operation in
this regard with civil society organisations, women’s groups and com-
munity leaders, traditional and religious leaders, as well as teachers and
the media’.122 And it urges the State Party ‘to undertake such efforts in
co-ordination with a wide range of stakeholders, and involving all sectors
of society, so as to facilitate social and cultural change and the creation of
an enabling environment that is supportive of gender equality’.123
In order to do so, States Parties need to interpret their culture and
traditions in a non-essentialist and dynamic manner. In the words of
a General Comment of the ESCR Committee: ‘The expression “cul-
tural life” is an explicit reference to culture as a living process, his-
torical, dynamic and evolving, with a past, a present and a future.’124
Th is has also been acknowledged by the CEDAW Committee,125 who
120
Nyamu, ‘How should human rights and development respond to cultural legitimization’
at 393.
121
Currently, this strategy is attracting more and more political and scholarly attention in
all areas of legal pluralism or multilayered jurisdictions. See, for example, F. Fontanelli,
G. Martinico and P. Carrozza, Shaping Rule of Law Through Dialogue. International and
Supranational Experiences (Groningen: European Law Publishing, 2009).
122
CEDAW Committee, Concluding Observations: Nigeria, CEDAW/C/NGA/6 (2008)
para. 323.
123
CEDAW Committee, Concluding Observations: Nicaragua, CEDAW/C/NIC/CO/6
(2007) para. 12.
124
UN CESCR General Comment 21, 20 November 2009, UN DOC. E/C. 12/GC/21,
para. 11.
125
Here again I disagree with Merry (‘Gender justice and CEDAW’), who states that the
Convention and the Committee adhere to a static and essentialist view of culture and
also use culture to describe other worlds, not their own. For a more detailed discussion
on this issue, see Holtmaat and Naber, Women’s Human Rights and Culture at para. 3.1.
9781107034624c03_p95-123.indd 121 3/25/2013 8:01:48 PM

in many Concluding Observations encourage States Parties to see cul-
ture as something that can be changed and that can (also) incorporate
the human rights standards that are embodied in the Convention. An
example of this stance can be found in a Concluding Observation on
Jordan of 2007, where the Committee ‘urges the State party to view cul-
ture as a dynamic aspect of the country’s social fabric and life and there-
fore subject to change’.126
12 Concluding remarks
Th is chapter argues that the Women’s Convention contains a holistic
understanding of equality and that it includes the principle of freedom
or diversity. On this basis, the Convention aims at eliminating all forms
of discrimination against women by means of various strategies of legal,
social and cultural reform. Especially in the last part of the chapter, it
becomes clear that such reform meets with a lot of (often silent) resist-
ance, and sometimes even with a vehement call upon other values and
rights, such as the right to sustain and support cultures, traditions and
religions, however oppressive these may be for women. It is not enough
that Article 5 offers the legal legitimacy for the necessary changes in this
respect; it is also required that States Parties and other stakeholders find
the roads to broaden and strengthen the necessary cultural legitimisation
for the process of modifying gender stereotypes and fi xed parental gen-
der roles. Thanks to the existence of Article 5, the Women’s Convention
is a revolutionary instrument that addresses the root causes of discrimi-
nation against women. However, in order for this instrument to become
126
CEDAW Committee, Concluding Observations: Jordan (2007), CEDAW/C/EST/JOR/
CO/4, para. 20. See also CEDAW Committee, Concluding Observations: Mozambique
(2007), CEDAW/C/MOZ/CO/2, paras. 20 and 21 and CEDAW Committee, Concluding
Observations: Cook Islands (2007), CEDAW/C/COK/CO/1, para. 23. We found a simi-
lar consideration for the fi rst time in CEDAW Committee, Concluding Observations:
Angola (2004), A/59/38/CEDAW/C/SR. 655 and 661, para. 147. Th e Committee
in its earlier days at some points went rather far in suggesting that a particular cul-
ture or religious practice or conviction can and should be changed. See, for exam-
ple, CEDAW Committee, Concluding Observations: Libyan Arab Jamahiriya (1974),
A/49/38, CEDAW/C/SR.237 and 240, para. 130 and CEDAW Committee, Concluding
Observations: Pakistan (2007), CEDAW/C/PAK/CO/3, para. 29. In the latter
Concluding Observation the Committee ‘calls on the State party to take prompt action
to counteract the influence of non-State actors, which, through the misinterpretation
of Islam and the use of intimidation and violence, are undermining the enjoyment by
women and girls of their human rights’.
9781107034624c03_p95-123.indd 122 3/25/2013 8:01:48 PM

effective, all stakeholders in the advancement of women’s human rights
need to take steps in order to enhance the necessary cultural, social and
legal changes. Improving the quality and effectiveness of transnational
and local dialogues about women’s human rights and culture is an impor-
tant step in that direction.
9781107034624c03_p95-123.indd 123 3/25/2013 8:01:49 PM

CEDAW. A Holistic Approach To Womens Equality and Freedom

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3

The CEDAW: a holistic approach to women’s

[Thus], regardless of a universal sex-equality norm, women’s reality is one of

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2 The human rights values that are incorporated

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3 The Convention’s definition of discrimination and its scope

Most importantly, the Convention incorporates the standard that all

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4 The additional value of the Women’s Convention

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5 The triple approach to equality in the Women’s Convention

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According to the CEDAW Committee, Article 5 means that the Convention

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6 Article 5 and discrimination against women

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It would be most helpful if the Committee, in a new General

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7 Three strategies to eliminate discrimination against women

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8 Article 5 of the Women’s Convention: the international

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The Commission concluded that on the basis of Article 5, States Parties

9 Article 5 of the Women’s Convention: freedom,

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10 States Parties’ obligations to modify gender

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11 Enhancing a dialogue to avoid a clash between

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