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Discrimination Against Women in the U.S.: Implementing Recommendations from the UN Working Group

By humanrightsathome

Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and Lecturer-in-Law   Image1

Despite the Obama Administration’s efforts to promote women’s rights and gender equality, women in the United States are “left behind” with respect to public and political representation, economic and social rights, and health and safety protections. This is the assessment offered by the UN Working Group on the issue of discrimination against women in its recent report on its 2015 visit to the United States. Last month, the Working Group submitted its report to the UN Human Rights Council.

During its U.S. visit, which took place November 30 – December 11, 2015, the Working Group met with stakeholders and U.S. government officials in Washington, D.C., and conducted site visits to Alabama, Oregon, and the Rio Grande Valley in Texas. 

The Working Group’s report from the visit examines a remarkable range of issues confronting women in the United States — including challenges related to employment discrimination, gun violence, access to reproductive and sexual healthcare, gender-based violence, access to justice, participation in public life, and the detention of migrant women — and notes that these challenges fall hardest on women living in poverty, migrant women, LGBTI women, women with disabilities, older women, and women who belong to ethnic minorities. The report offers concrete recommendations to the United States for ways in which it can bring its policies and practices more in line with international human rights standards. The United States’ failure to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) pervades the Working Groups’ analysis and recommendations.  

In formally responding to the Working Groups’ report, the United States pledged to “take the Working Group’s recommendations seriously as a complement to the viewpoints of American women and our committed and outspoken civil society.” Yet the U.S. also challenged some of the Working Group’s conclusions.

What can U.S. advocates do to ensure that the Working Group’s report has a real impact? Like all UN special procedures (independent human rights experts appointed by the UN Human Rights Council to be its “eyes and ears” on human rights around the world), the Working Group has limited resources and no mechanism for following up on country visits and related recommendations. That is where civil society must step in.

In ensuring that the Working Group’s report has an impact at home, women’s rights advocates can draw from examples of colleagues who have leveraged special procedures recommendations to the United States in other contexts. (Advocates planning to engage this month with the Special Rapporteur on Freedom of Association and Assembly, or with upcoming visits by the UN Working Group on arbitrary detentions and the UN Special Rapporteur on trafficking in persons, might take note of these strategies, as well.)

  1. Get the word out

Perhaps the most important tactic advocates can adopt to ensure that the Working Group’s report has an impact on addressing discrimination against women in the United States is to raise public awareness of the report and facilitate its wide dissemination. Many groups make strong use of social and traditional media to raise awareness of issues addressed in special procedure’s reports and statements. We’ve seen this with strong media attention given to statements by Special Rapporteurs regarding water shut offs in Detroit and contaminated water supplies in Flint. In those instances, advocates were key in getting the word out through op-eds, social media, and press events.

  1. Leverage the report and its recommendations in other fora

Advocates have leveraged the expertise of special procedures mandate holders in other human rights venues, in particular the Inter-American Commission on Human Rights (IACHR). For example, in 2014, the Special Rapporteur on violence against women appeared before the IACHR in a hearing examining the U.S. government’s implementation of the IACHR’s decision and recommendations in the Lenahan case, regarding the U.S.’ obligations to protect women from domestic violence. The Special Rapporteur on Torture, Juan Mendez, likewise provided testimony to the IACHR in a recent IACHR thematic hearing on solitary confinement in the Americas.

  1. Draw on recommendations in litigation

Advocates have drawn on special procedures’ recommendations in the litigation context, most commonly through human rights amicus briefs. For example, in litigation challenging the lack of a right to appointed counsel for children in immigration proceedings, Human Rights Watch filed an amicus brief presenting human rights law and recommendations by Special Rapporteurs and human rights treaty bodies, to inform the 9th Circuit’s understanding of the underlying rights at stake. Included in the brief were strong statements by the UN Special Rapporteurs on extreme poverty and the rights of migrants.

On occasion, the special procedures themselves have filed amicus briefs.  For example, the former Special Rapporteur on torture, Manfred Nowak, submitted an amicus brief to the U.S. Supreme Court in a case concerning the prohibition on torture. 

  1. Integrate recommendations into policy advocacy

Advocates often draw on special procedures’ reports and recommendations in policy advocacy at the federal, state, and local level.

The National Law Center on Homelessness and Poverty does this in its advocacy to address criminalization of homelessness. Several Special Rapporteurs have addressed the issue of criminalization in the context of the United States, and the Center has organized meetings between the Special Rapporteurs and federal officials, to discuss how the U.S. could implement some of the recommendations aimed at the federal government.

  1. Follow up on the report with specific allegations

Advocates have used special procedures’ reports as an opening to submit allegations or complaints related to particular human rights concerns. For example, after the former Special Rapporteur on extreme poverty issued a thematic report on access to justice, legal services lawyers leveraged her interest in the issue to submit allegations of human rights violations with respect to migrant farm workers’ access legal services and other community supports.

Since 2012, the Working Group on discrimination against women has received three sets of allegations regarding the United States. The Working Group has developed a set of guidelines for submitting such allegations.

Of course, U.S. advocates aren’t limited doing to what others have done previously. For example, advocates might monitor and assess whether federal officials have implemented the Working Group’s recommendations on the report’s one year anniversary, and document remaining gaps. Indeed, this is an area that lends itself to innovation. As participants suggested throughout the recent Bringing Human Rights Lawyers’ Network symposium on engaging with UN special procedures, advocates are constrained only by their creativity.