Women and Justice: Keywords

Domestic Case Law

Ruling with Gender Perspective (Isolated Thesis Docket: VII.2o.C.127 C (10a.)) Second Collegiate Tribunal in Civil Matters of the First Circuit (2017)

Gender discrimination, Property and inheritance rights

“RULING WITH A GENDER PERSPECTIVE. IN ORDER TO PROPERLY ASSESS THE EVIDENCE, THE COURT MUST IDENTIFY A VULNERABLE SITUATION IN CASES WHERE A FAMILY CRISIS IS EVIDENT.”

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. As a reference, the Mexican Supreme Court has repeatedly instructed all Mexican courts to take gender perspective into account when ruling, even if the plaintiff does not formally request it. As background, the precedent that culminated in this isolated thesis arose from a dispute over a lease. The plaintiff, a housewife, offered testimonial evidence but was required to have her testimony corroborated by certain family members. Due to the plaintiff’s poor relationship with these family members, the family members provided false testimony in order to harm her. The Court ruled that this testimony should have been suppressed. In this case, the judge was required to take gender perspective into account, as the plaintiff was found to be in a vulnerable situation, given her status as a housewife. It is important to note that it has been proven that, historically, housewives have frequently been in a disadvantageous position. As a result, the Court was required to consider the plaintiff’s relationship with her family members in order to assess the evidence based on a gender perspective.

Original case available: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=205/02050000198348990005005.pdf_1&sec=DIANA_HELENA_SANCHEZ_ALVAREZ&svp=1

 

“VEREDICTOS CON UNA PERSPECTIVA DE GÉNERO. "PARA PODER EVALUAR ADECUADAMENTE LA EVIDENCIA, EL TRIBUNAL DEBE IDENTIFICAR UNA SITUACIÓN VULNERABLE EN CASOS EN QUE UNA CRISIS FAMILIAR SEA EVIDENTE."

Esta tesis aislada es un ejemplo relevante de la jurisprudencia con la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. Como referencia, la Corte Suprema de México ha ordenado en repetidas ocasiones a todos los tribunales mexicanos que tengan en cuenta la perspectiva de género cuando dictaminen, incluso si el demandante no lo solicita formalmente. Como antecedentes, el precedente que culminó en esta tesis aislada surgió de una disputa sobre un contrato de arrendamiento. La demandante, ama de casa, ofreció pruebas testimoniales, pero se le exigió que su testimonio fuera corroborado por ciertos miembros de la familia. Debido a la mala relación del demandante con estos miembros de la familia, ellos proporcionaron un testimonio falso para hacerle daño. El tribunal dictaminó que este testimonio debería haber sido suprimido. En este caso, se requirió que el juez tomara en cuenta la perspectiva de género, ya que se descubrió que la demandante estaba en una situación vulnerable, dada su condición de ama de casa. Es importante tener en cuenta que se ha demostrado que, históricamente, las amas de casa con frecuencia han estado en una posición desventajosa. Como resultado, se requirió que la Corte considerara la relación de la demandante con los miembros de su familia para evaluar las pruebas basadas en una perspectiva de género.



Macarthys Ltd v. Smith [1980] 3 W.L.R. 929 Court of Appeal [United Kingdom and Northern Ireland] (1980)

Gender discrimination

Mr. M., the manager of the stockroom in one of the warehouses of the employers left his employment. After four months of the post remaining vacant the employee, Mrs. Smith, was appointed as the manageress of the stockroom. Her duties differed slightly from Mr. M's duties. She was paid about £10 less than he was. She argued that this breached the UK’s Equal Pay Act 1970. The Court of Appeal held that that Act does not allow comparisons with former colleagues; however, the ECJ held that EU law allows such comparison, reversing that Court of Appeal’s judgment. The ECJ decided that article 119 of the Treaty was directly applicable in the national courts of each country. It was submitted that under article 119 of the Treaty there was no requirement that the man and the woman should be employed contemporaneously at the same time and that, under that article, the woman was entitled to equal pay even though the man had left before she joined and the woman had taken his job afterwards.



Wijesundera v. Heathrow 3PL Logistics Ltd [2014] I.C.R. 523 Employment Appeal Tribunal (2014)

Gender discrimination

The claimant, a Sri Lankan national, was working in England with a valid work permit when she was made redundant. The claimant claimed that she had been subjected to sex discrimination and harassment on numerous occasions. She also claimed that her dismissal was a further act of sex discrimination. In this case it was held that a worker knowingly employed under an illegal employment contract could bring a sex discrimination claim as the claim was not so inextricably bound up with her employment as to be defeated by a defence of illegality.



Wal-Mart Stores, Inc. v. Human Rights Commission Court of Appeals Second District (1999)

Gender discrimination

Ms. McQueary was discharged from Wal-Mart and alleged that her employer violated the Illinois Human Rights Act by discharging her on the basis of gender. Her employer claimed that it discharged her after she left her shift early, which she had done due to harassment from her male co-workers. After the administrative judge recommended liability, the Illinois Human Rights Commission (HRC) sustained the complaint and ordered the award of damage and reinstatement of Mrs. McQueary. Wal-Mart argues that the employee failed to prove the fourth prong of a prima facie cause of unlawful discrimination—that employees in a similar situation who were not members of a protected group were not discharged. The Court of Appeals ruled that this was met though when they examined Wal-Mart’s treatment of similar employees and found that the male employees who also left their shift early were not automatically discharged. The Court affirmed the judgment of the HRC.



Kalulu v. Mahirima High Court of Tanzania (2011)

Gender discrimination, Property and inheritance rights

The father of the deceased objected to the appointment of his son’s wife as an administratrix of the will. He claimed that there was no evidence that a customary marriage had taken place between his son and the respondent or that the couple had not been divorced in the interim. He also contended that Chagga customary law on succession and inheritance barred women from administering wills. The Court dismissed his appeal. It noted even if there had not been a customary marriage between the deceased and the respondent, the duration and nature of their relationship satisfied the requirements for a presumed marriage. Furthermore, the Court cited Article 12 and 13 of the Constitution and Article 1 of CEDAW to emphasize its commitment to ending gender-based discrimination. It decided that following Chagga customary law would be discriminatory and that the deceased wife would remain as an administratrix of the will.



Vent-Axia v. Wright (1999, EAT) Employment Appeal Tribunal (1999)

Sexual harassment

A department head accused of harassing four women was not permitted to learn the names of his accusers due to confidentiality issues. The EAT re-affirmed that the primary test when ordering disclosure of documents is whether disclosure is necessary for fairly disposing of the proceedings, not whether the document is confidential in nature. The Court ruled the alleged harasser must demonstrate that this information is necessary in the context of his specific case.



Janzen v. Platy Enterprises Ltd Supreme Court of Canada (1989)

Employment discrimination, Sexual harassment

The appellant waitresses had been harassed while working at Pharos Restaurant, a restaurant owned by Platy Enterprises Ltd. Multiple waitresses endured sexual harassment from the same employee. In each individual incident, the waitresses resisted the conduct and one waitress spoke to management. While the harassment stopped, the offending employee continued to behave in an “unpleasant manner.” An adjudicator for the Manitoba Human Rights Commission awarded damages to the victims of sexual harassment and found that they had been “victims of sex discrimination contrary to s. 6(1) of the Human Rights Act. The Court of the Queen’s Bench upheld the decision, but the Court of Appeal later reversed. The Supreme Court of Canada held that the lower court “should not have reduced the amount of damages given to the appellants” given the severity of the sex discrimination experienced by the employees.



Cheung v. Canada Canada Court of Appeal (1993)

Forced sterilization

After having her first child in China in 1984, Cheung had three abortions and moved to a new province in 1986 to avoid problems with local authorities on the basis of China’s one-child policy. Cheung had another child in that province. Cheung moved to Canada, knowing that she would be sterilized if she returned to China. The Immigration and Refugee Board determined that Cheung and her daughter did not have the “well-founded fear of persecution” necessary for Convention refugee status, and Cheung appealed. The Court determined that forced sterilization “is such an extreme violation of basic human rights as to be persecutory,” and determined that Cheung did in fact have the “well-founded fear of persecution” necessary for refugee status. Furthermore, the Court determined that Cheung’s young daughter also qualified for refugee status because she would have been denied appropriate medical care and other necessities if she returned to China.



Chu v. Canada Federal Court of Canada (2006)

Trafficking in persons

Ms. Chu is a citizen of China who was smuggled into Canada as a minor, arrested by Citizenship and Immigration Canada while she was being smuggled into the United States, and subsequently detained for eight months. Ms. Chu filed a refugee claim with the Immigration and Refugee Board, which was rejected. In rejecting her claim, however, the Board accepted that Ms. Chu was a member of a social group comprising rural young women from China, and that as such, Ms. Chu was a “very vulnerable member of society.” Ms. Chu then submitted an application for permanent resident status on humanitarian and compassionate grounds, in light of the international laws regarding the trafficking of women. After complying with a request to provide updated information about her case, Ms. Chu received word that her application had been refused on the grounds that she had not shown sufficient establishment in Canada to suggest that she would suffer undue hardship if required to leave and apply for a visa in the regular manner. Ms. Chu challenged this decision by applying for judicial review of her application, alleging that the officer who made the original decision had failed to consider all of the evidence submitted in her case. The judge dismissed Ms. Chu’s application for judicial review, holding that the officer had not made any reviewable error because Ms. Chu had not successfully demonstrated that the officer ignored any evidence.



De Burca and Anderson v. Attorney General Supreme Court of Ireland (1975)

Gender discrimination

The plaintiffs were two female criminal defendants who chose to be tried by a jury and objected to the Juries Act of 1927 which excluded all women from jury pools except those who opted to be part of the potential jurors list.  The Supreme Court ruled the Juries Act unconstitutional because it constituted invidious discrimination on the basis of sex.



U1991.534H Supreme Court of Denmark (1991)

Sexual violence and rape

The defendant was found guilty of multiple rapes and sentenced to five and a half years of imprisonment.  He was found guilty of threatening his victims with a knife, hitting them, holding them in a stranglehold and threatening them with death.  Four of his victims were prostitutes.   The Supreme Court awarded compensation to two rape victims who had been denied such compensation by the High Court because they were prostitutes. 



Legislation

Collective Labor Agreement No. 95 of 10 October 2008 (2008)

Employment discrimination, LGBTIQ

The Collective Labor Agreement No. 95 of 10 October 2008 was established by the National Labor Council to ensure compliance with equal treatment principles at all stages of the employment relationship. Equal treatment implies the absence of discrimination based on several factors, including gender and sexual orientation. The principle of equal treatment must be complied with at every stage of the labor market, e.g., the employment relationship, the conditions for access to employment, conditions for employment, and termination of employment. It was made binding in law by the Royal Decree of 11 January 2009.



Succession Act (Amendment) Decree 22/72 of 1972 (1972)

Gender discrimination, Property and inheritance rights

Uganda allows for customary law to govern many situations, but the Succession Act restricts their applicability in inheritance cases.  It enshrines women’s right to inherit from husbands, but also privileges men because 1) the property of a married woman who dies intestate automatically will go to her spouse, unlike a man who dies intestate; 2) the matrimonial home will go to the legal heir, the determination of which prioritizes male relatives; 3) a widow (or widows in polygamous marriages, who must share) may only inherit 15% of her husband’s estate; and 4) maintenance and occupancy rights of widows terminate if they remarry.  

Original Act (1906)



National Women's Council Act of 1993 (amended 2010, 2015) (1993)

Gender discrimination

The National Women’s Council Act (“NWCA”) creates women’s councils to coordinate and promote the organization of “the women of Uganda in a unified body; and to engage the women in activities that are of benefit to them and the nation.”  There are village, parish/ward, subcounty/division/town, county, and district women’s councils, each of which is comprised of all of the women in the geographical region.  Each council elects a six-member leadership committee, members of which may only serve on one at a time (e.g., if a woman is on the village committee and is then elected to the parish committee, her seat on the village committee is vacated).  The National Women’s Council must be comprised of one elected representative from each district, two representatives from NGOs, and two elected female student representatives.

2010 Amendments

2015 Amendments



International Case Law

International Planned Parenthood Federation – European Network (“IPPF EN”) v. Italy European Court of Human Rights (2013)

Gender discrimination

Italian government’s failure to take measures to ameliorate the less favorable treatment suffered by women falling into certain vulnerable categories with respect to access to abortion services was a violation of Article E (prohibition of direct and indirect discrimination) of the Revised European Social Charter (the “Charter”) in conjunction with Article 11 (right to protection of health) of the Charter. IPPF EN complaint stated that the high number of medical personnel electing to be conscientious objectors resulted in the violation of the rights of women to have access to procedures for the termination of pregnancy, thus violating their right to protection of health. Committee finds that certain categories of women in Italy are subject to discrimination in the form of impeded access to lawful abortion facilities as a combined effect of their gender, health status, territorial location and socio-economic status. Committee finds that Italian authorities should have adopted the necessary measures to compensate for deficiencies in service provisions caused by health personnel choosing to exercise their right to conscientious objection to performing abortions.



LEVENTOĞLU ABDULKADİROĞLU v. TURKEY European Court of Human Rights (2013)

Gender discrimination

The case concerned the complaint by a woman that, under Turkish law, she was not allowed to keep just her maiden name in official documents after getting married, whereas married men kept their surname. The Court held that this difference in treatment on grounds of sex between persons in an analogous situation had no objective and reasonable justification. Accordingly, the obligation imposed on married women to bear their husband’s surname – even if they could put their maiden name in front of it – had no objective and reasonable justification, in breach of Article 8 in conjunction with Article 14.