Women and Justice: Topics: Gender discrimination, LGBTIQ

Domestic Case Law

Khaki v. Rawalpindi Supreme Court of Pakistan (2009)

Gender discrimination, LGBTIQ

The Supreme Court of Pakistan considered the social status and injustices caused to the transgender population. The Court noted that under the Constitution of Pakistan, transgender individuals are entitled to enjoy constitutional rights like every other citizen of Pakistan. Over the years, transgender individuals in Pakistan have been deprived of inheritance, other property rights, voting rights, education, and employment due to the stigma and exclusion they have suffered. The Court directed the National Database and Registration Authority to adopt a strategy for recording exact status in the electoral list and the Federal and Provincial Governments to ensure that transgender individuals receive childhood education. The Court directed the Chief Secretaries/Commissioners to consult with the Social Welfare Department to implement the order and prepare a policy that would allow transgender individuals to vote during elections.



Director of Immigration v. Q.T. Court of Final Appeal (2018)

Gender discrimination, LGBTIQ

The plaintiff, a British national, applied for a Hong Kong visa as a dependent of her same-sex partner, who was in Hong Kong on a work visa. The plaintiff and her partner had entered into a civil partnership in England. The Director of Immigration rejected the plaintiff’s application on the grounds that the term “spouse” in the spousal dependent visa policy was limited to the concept of marriage as defined under Hong Kong law, recognizing only the union of a man and a woman. The court found that the director acted unlawfully by not granting dependent visas to the same-sex spouses of holders of work visas. It did not, however, hold that Hong Kong law recognized same-sex marriage.



Leung Chun Kwong v Secretary for the Civil Service Court of Appeal (2018)

Gender discrimination, LGBTIQ

The plaintiff, a gay man, challenged the government’s denial of spousal benefits to his husband. The couple had been married in New Zealand. The court observed that Hong Kong law does not recognize same-sex marriage; the Marriage Ordinance defines marriage as “the voluntary union for life of one man and one woman to the exclusion of all others.” The court concluded that the government’s denial of spousal benefits therefore did not violate the Basic Law, Bill of Rights, or common law. The plaintiff plans to appeal to Hong Kong’s highest court, the Court of Final Instance.



Chan Wah v. Hang Hau Rural Community and Others Court of Final Appeal (2000)

Gender discrimination, Harmful traditional practices

The plaintiffs were non-indigenous villagers who sought declarations that their local village election laws were unlawful for restricting the participation of non-indigenous villagers in the election of village representatives. According to the plaintiff’s complaint, non-indigenous females married to indigenous villagers could vote, but non-indigenous males married to indigenous villagers could not vote. The court found that this distinction violated the Sex Discrimination Ordinance. 



Lam Wing Lai v. Y t Cheng (Chingtai) Ltd. District Court (2005)

Employment discrimination, Gender discrimination

Plaintiff worked as a secretary for the defendant. The plaintiff was experienced and had a history of good performance reviews. However, her relationship with the defendant deteriorated after she became pregnant. The plaintiff shared her pregnancy news with human resource and one colleague only, but then more colleagues learned about her pregnancy.  According to the plaintiff, colleagues threatened to force her to have an abortion and suggested that she take only a four-week  maternity leave despite her preference for an eight-week maternity leave. Plaintiff later learned that the defendant had hired a permanent replacement for her during her maternity leave. Subsequently, the plaintiff was fired. The court found that the plaintiff had showed that, on a balance of probabilities, she had been discriminated against by the defendant on the basis of her pregnancy.



Chan Choi Yin v. Toppan Forms (Hong Kong) Ltd. District Court (2006)

Employment discrimination, Gender discrimination

The plaintiff was the defendant’s employee. The plaintiff alleged that the defendant’s management began treating her poorly after her pregnancy, culminating in her eventual dismissal. The plaintiff claimed that the defendant’s actions were prohibited by the Sex Discrimination Ordinance. The court found that management had, among other things, had made derogatory remarks to the plaintiff, reduced her income, compelled her to transfer teams, and failed to investigate her internal complaints about her treatment. The court further found that the plaintiff had showed that, on a balance of probabilities, she had been discriminated against by the defendant’s management on the basis of her pregnancy.



Wong Lai Wan Avril v. Prudential Assurance Co Ltd District Court (2009)

Employment discrimination, Gender discrimination

The plaintiff was an employee of the defendant along with her husband, who was her direct supervisor. The defendant fired the plaintiff’s husband. Subsequently, the defendant informed the plaintiff that because of her marital relationship with her husband, she would have to be fired too, despite the lack of any wrongdoing on her part. The defendant moved to dismiss the claim, but the Court refused to, finding that there were credible allegations of violations of the Family Status Discrimination Ordinance and the Sex Discrimination Ordinance.



Sit Ka Yin Priscilla v. Equal Opportunities Commission Court of Appeal (2011)

Employment discrimination, Gender discrimination

The plaintiff was a former employee of the defendant. She alleged that the defendant had unlawfully discriminated against her because of her gender. Following poor performance reviews, the plaintiff had been fired by the defendant. She pointed to disparate treatment of her versus a male colleague, who despite having had multiple complaints made against him (while there were none against her) had received better performance reviews than the plaintiff. The court denied the plaintiff’s claims, relying in part on nine allegations of substandard performance that had been made against her.



Lau Hoi Man Kathy v. Emaster Consultants Ltd, District Court (2014)

Employment discrimination, Gender discrimination

The defendant was an employment consultancy company that worked on behalf of various Hong Kong government agencies. The plaintiff was an employee of the defendant, who worked under a one-year contract. The plaintiff’s contract was renewed, with a start-date immediately following the end-date of the original contract. The plaintiff subsequently informed the defendant that she was pregnant. The defendant rescinded the renewal of the contract, on the grounds that the plaintiff had been dishonest in informing the employer of her pregnancy. The plaintiff filed a complaint with the Equal Opportunities Commission, claiming that the defendant had violated the Sex Discrimination Ordinance. To resolve the complaint, the defendant proposed a new contract, which the plaintiff accepted. The plaintiff later applied for maternity leave, but was denied by the defendant, who informed her that she did not satisfy the requirement of continuous employment prior to the request (due to a one-day gap between the original contract’s end-date and the new contract’s start-date). The court found that the defendant’s imposition of a one-day gap was a discriminatory act that was prohibited by Sections 8 and 11 of the Sex Discrimination Ordinance.



Mokhele and Others v. Commander High Court of Lesotho (2018)

Gender discrimination

The applicants were female soldiers who were discharged from the army by the Commander of the Lesotho Defence Force on the grounds of pregnancy. The reason listed for the discharge of the applicants was pregnancy and a contravention of the army’s Standing Order No. 2 of 2014, which states that a soldier may not become pregnant during the first five years of service. The High Court stated that case before it was a “challenge to the culture of patriarchy in the military and an assertion of sexual and reproductive rights in military service. What is being contested is the idea that female soldiers are incapable to bear arms and babies at the same time and, on that account, are not fit for military purpose.” The court stated that to allow the dismissal from work on the grounds of pregnancy would amount to discrimination on the basis of sex because pregnancy affects only women. The Standing Order had profound effects on the reproductive rights, freedoms, and careers of female soldiers, and the five-year prohibition period was arbitrary in nature. The court held that the applicants must be reinstated back to their positions and ranks in the Lesotho Defence Force without any loss of benefits.



Makafane v. Zhongxian Investment Pty Ltd. Labour Court of Lesotho (2014)

Employment discrimination, Gender discrimination

The applicant was dismissed by her employer, the respondent, because of operational requirements. The applicant was employed by the respondent from 1 November 2007 until her dismissal on 24 October 2012. The applicant claimed that she was dismissed unfairly because she was pregnant. Prior to her dismissal, the applicant delivered a letter from the Qacha’s Nek Hospital stating that she was pregnant and would be required to attend monthly clinics until she delivered her baby. The respondent then dismissed the applicant, claiming that her employment could not continue because of her pregnancy. The Labour Court referred to subsection 3(d) of the Labour Code Order 24 of 1992, which provides that pregnancy, among others, does not constitute a valid reason for terminating employment. The court stated that this type of dismissal carried an element of discrimination, the freedom against which is protected by the Constitution of the Kingdom of Lesotho, the highest law of the land. The court held that the dismissal of the applicant was unfair, that the respondent must reinstate her to her former position, and that the respondent pay for her lost earnings following dismissal.



Uganda v. Hamidu and Others High Court of Uganda (2004)

Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Sexual violence and rape

Here, the Court rejected defendant’s argument that his mistaken belief that the complainant was his wife was a sufficient defense against a conviction of rape. The Court, relying on Article 31 of the Constitution, stated that both husband and wife enjoy equal rights in marriage and stated that the complainant’s dignity was trampled upon. The Court thus extends access to justice by construing the existing law on rape through the reasoning that the constitutional provisions on equality in marriage and the recognition of the equal dignity of women and men had effectively amended Sections 9 and 123 of the Penal Code. These sections at face exclude husbands from being held criminally liable for marital rape.



Motshidiemang v. Attorney General Botswana High Court of Botswana (2019)

Gender discrimination, LGBTIQ

Here, the High Court of Botswana held in a unanimous opinion that Section 164(a)/(c), 165, and 167 of the Botswanan Penal Code were unconstitutional. These sections criminalized same-sex relations. The Court held that 164(a)/(c), 165, and 167 violated Sections 3 (liberty, privacy, and dignity), 9 (privacy), and 15 (prohibiting discrimination) of the Botswanan Constitution. The Court modified Section 167, which criminalized the offence of gross indecency, to remove reference to private acts. The case overturned Kanane v State.



Decision No. 16-0357: Sentencia Familia Homoparentales por reproduccion asistida El Tribunal Supreme de Justicia (Venezuela Supreme Court of Justice) (2016)

Gender discrimination, LGBTIQ

The plaintiff, a female Venezuelan citizen married to a female Venezuelan citizen, got married in Argentina, where LGBT marriage rights are fully granted to homosexual couples.  In the following years, they tried to validate their marriage in Venezuela through a judicial homologation process. Such homologation was denied on the basis that the marriage regulations in Argentina did not comply with the provisions of Article 44 of the Venezuelan Civil Code, which regulates marriage rights in Venezuela and provides that “marriage cannot be entered into except between one single man and one single woman.”  Thereafter, the couple conceived a child through the assisted reproduction method in Argentina, who was born and presented for registration as their son in Argentina.  Immediately after the baby was born, the couple moved back to Venezuela, where they tried to present the newborn as their son to the Venezuelan competent authorities, requiring that the baby carried the surnames of both mothers.  The registration was denied.  The couple introduced a complaint before the competent court and the judge decided the registration of the boy was inadmissible.  The plaintiff appealed this decision until it reached the Constitutional Chamber of the Supreme Court of Justice (“TSJ”), Venezuelan’s highest judicial body, which decided to annul the decision of the lower court.  The TSJ overruled the lower court’s decision on the basis that the decision violated the plaintiff’s right to present the child as an LGBTIQ couple’s child.  Likewise, the TSJ stated that this action violated the child’s constitutional right to have an identity.  The TSJ final decision was to allow the registration of the child with both mothers’ surnames.  



Douglas v. CTML Pty Ltd. Queensland Civil and Administrative Tribunal (2018)

Gender discrimination, Property and inheritance rights

The decision of the tribunal was only in relation to whether to approve the respondent’s application to dismiss the complaint.  The respondent’s application was denied because there were real factual issues in dispute.  It appears that the substantive trial has not yet commenced (or alternatively a settlement was reached).  In any case, this case is relevant as it illustrates the discrimination women may face in Australia when seeking to establish themselves in a secure environment and raise their children.  The complainant was a single mother who sought to rent an apartment from the respondent.  The complaint rested upon the allegation that the complainant’s tenancy application had been rejected (and she was not even allowed to see the property) as a result of the complainant intending on having her young son live with her in the rental property.  



R.A. v. N.C. Queensland Civil and Administrative Tribunal (2018)

Gender discrimination

The complainant was a Muslim woman who wore a hijab covering her hair.  While the complainant and the respondent were in a residential elevator, the defendant made disrespectful remarks to the complainant about the complainant’s presumed religion.The two did not know each other – the complainant’s hijab was the only way for the defendant to identify her religion.  The complainant sought an apology.  Video evidence was submitted at trial from CCTV.  Importantly, there was an additional individual in the lift.  As a result of this witness, the tribunal was able to find that the defendant had committed a “public act” for the purposes of the Anti-Discrimination Act 1991 (Qld).  However, the tribunal ultimately did not find for the complainant as the words used were determined by the tribunal to not, in fact, result in religious vilification as the additional individual in the lift did not react to the words. This case is relevant as it goes directly to ongoing discrimination women may face in Australia as a result of expressing their religion (through, for example, wearing a hijab).



J.M. v. Q.F.G. and G.K. Anti-Discrimination Tribunal Queensland (1997)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ

The complainant was a woman in an exclusive lesbian relationship for four years. The complainant and her partner wanted to have child but learned that donor insemination in Queensland would not be available for them, so the complainant traveled out of state to seek this treatment. She found the experience to be emotionally and financially draining, so she stopped the treatment. Thus, the complainant decided to try and ask the clinics in Queensland for the donor treatment. She found a clinic at which the respondent was a director. She obtained a referral from her general practitioner and scheduled an appointment with the respondent. At the appointment, the complainant informed the respondent that she was in a long-term lesbian relationship.  The respondent’s position was clear that the clinic only provided treatment to heterosexual couples with infertility problems. Nevertheless, he requested blood tests of the complainant which showed that her ovaries were functioning normally and proceeded to give her a form to fill out and sign for herself and her “husband” in order to start the treatment. The complainant asked the respondent if she could fill only the wife part and sign, but he insisted that it should be signed by the husband.  Since this was not possible in her case, the respondent refused to provide her with the treatment. The claimant then sought treatment outside Brisbane for a while without success. The claimant had a baby by private donation, ultimately bearing risks of possible HIV infection of the semen. The claimant suffered emotional distress from humiliation and discrimination based on her sexual orientation, in addition she had to defer her university degree for all the time she had to spend traveling to clinics outside Queensland. Subsequently, the claimant filed this claim before the Anti-Discrimination Tribunal seeking compensation from the respondent and his clinic. The respondent argued that there was an agreement with the government on artificial insemination by donation in relation to treatment of infertility, and that treatment is to be provided only to heterosexual couples. The Tribunal confirmed that there was no such agreement in place. The respondent also argued the definition of infertility only describes the incapability of heterosexual couples of conceiving because of medical reasons caused by one or both of them. The Tribunal also refused this limitation of the definition and held that the fact that scientifically two females are incapable of conceiving a child is a medical reason that makes them eligible for the same treatment as any heterosexual couple seeking this treatment. Accordingly, the Tribunal found the act of the respondent to be discriminatory against the complainant because she is a lesbian, which is unlawful under the Anti-Discrimination Act 1991, and ordered the clinic to pay the claimant a compensation sum for the humiliation and offence she suffered.



Du Bois-Hammond v. Ariel Anti-Discrimination Tribunal Queensland (2004)

Employment discrimination, Gender discrimination

The complainant worked as a Reservations Manager at the Raging Thunder Pty where both respondents, Cole and Ariel, were directors. The complainant became pregnant and went on maternity leave in agreement with the directors that she would return to the company at the same position after her maternity leave. Closer to the date when the complainant was about to return back from her maternity leave, she contacted Mr. Cole and discussed the possibility of returning on a part-time basis, but Mr. Cole informed her it was not possible for a managerial position to be part-time. The complainant tried to contact Mr. Cole again to inform him that she was willing to work full-time, but could not reach him, so she sent him the message through the receptionist. After several calls with Mr. Cole and without a definitive answer on her return date to work, Mr. Ariel called the complainant to inform her of a company restructuring and that her position was no longer available and that the two newly introduced positions were already filled by her colleagues. The complainant asked if they were going to offer any similar positions, but Mr. Ariel told her they had no more positions and he would not create one for her. The complainant suffered emotional distress and financial loss due to becoming redundant, therefore filed for this complaint seeking compensation. The complainant alleged that, due to her pregnancy and maternity leave, the respondents (i) failed to discuss the terms of her returning to work; (ii) failed to discuss her offer to work part-time;(iii) failed to appoint her in the new position of Call Center Manager and appointed Ms. S. instead; (iv) failed to appoint her in the new created position of 2IC and appointed Ms. G.; and, (v) failed to offer her an alternative position. The Anti-Discrimination Tribunal did not find the respondents liable for all of the complainant’s allegations, but ruled that the company and Mr. Ariel failed to offer the complainant the 2IC position after restructuring even though she was more experienced and familiar with this role than Ms. G., who was only covering for the complainant during her maternity leave.  Thus, the Tribunal found that the reason for not offering this position to the complainant was due to her maternity leave.  The company and Mr. Ariel also failed to offer the complainant any alternative position, again due to her maternity leave, and therefore her return was not considered while planning the restructuring of the company. The Tribunal found that respondents did not discriminate against complainant in conversations about her returning to work, in not discussing her offer to work part-time, in choosing to restructure, or in failing to appoint her in the Call Center Manager position under the Anti-Discriminatory Act 1991. However, the Tribunal did find that if complainant had not been on maternity leave at the time of the restructuring, she would have been offered the 2IC position, and that decision constituted pregnancy discrimination on the part of the first and third respondents.  Also, the Tribunal found the failure to offer complainant a suitable alternative position constituted pregnancy discrimination.  Therefore, the Tribunal ruled a compensation sum to be paid the complainant.



McRostie v. Boral Resources Anti-Discrimination Tribunal Queensland (1999)

Employment discrimination, Gender discrimination

The complainant was an employee of the respondent company. The complainant filed this complaint against the respondent primarily for appointing a man, J., in the position of Administration Manager without advertising the position and therefore not giving the complainant an opportunity to compete for the position. The complaint rested on the following: (i) discriminating in complainant’s salary because  J., even though he held positions of similar ranking and job descriptions over the years, always received a higher salary than the complainant by at least $5,000; (ii) removing complainant’s name from the list of attendees to the Perth Conference of the Institute of Quarrying; (iii) not giving her the opportunity to relieve her line manager from his duties during his absence and giving this task to J.; (iv) deciding not to give her the task of delivering a presentation even though she was the project coordinator and instead giving it to J.; (v) placing J. on the Archipegalo Project and denying complainant’s request for leave time; and (vi) selecting J. to conduct a computer training when complainant had expertise in the area.  The complainant suffered from emotional distress and subsequently resigned from her position.  The complainant sought compensation for the ongoing financial loss caused by not finding a full-time employment since her resignation. The Anti-Discrimination Tribunal did not find discrimination on the part of respondent based on complainant’s allegations, except for two years of salary discrimination.  Accordingly, the Tribunal ordered the respondent to pay the complainant a compensation sum for the difference in the salaries within 30 days.



Brown v. Moore Supreme Court of Queensland (1996)

Employment discrimination, Gender discrimination, Sexual harassment

The respondent was a married aboriginal woman employed at the The Black Community Housing Service as a bookkeeper since 1985 and later as an Administrator until her resignation in August 1992. The first appellant became the director of the Housing Service in December 1990, and the second appellant was the employer, The Black Community Housing Service. The respondent started receiving calls from the appellant where he expressed his love to her and made inappropriate sexual remarks. The appellant also made inappropriate sexual remarks to the respondent when attending meetings together, on other occasions he gifted her “sexually explicit figurines,” and “touched her sexually suggestively on numbers of occasions.” The respondent did not confront the appellant in fear of losing her job, but she did complain to the board of directors who took no action against the appellant. Respondent filed a complaint against the appellant on the basis of sexual harassment and discrimination, and ultimately resigned when the board of directors would not remove appellant from his position while the investigation was underway. The Anti-Discrimination Tribunal found the claims of the respondent to be true. The Tribunal also learned that the employer did not have any policies on discrimination or sexual harassment, nor provided its employees with a training regarding the same. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the employer and the appellant pay the respondent compensation for damages caused by the discrimination and sexual harassment. The first appellant filed this appeal stating that the Tribunal had no evidence that the respondent suffered any hurt and/or humiliation, nor that the respondent’s resignation was due to the behaviour of the appellant. The first appellant also objected on the compensation amount being “excessive in the circumstances.” The second appellant appealed, stating that the employer was not vicariously liable for the acts of the first appellant. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.



Mount Isa Mines, Ltd. v. Hopper Supreme Court of Queensland (1998)

Employment discrimination, Gender discrimination, Sexual harassment

The respondent was employed as an apprentice by the first appellant, the second appellant was her supervisor, and the third, fourth, and fifth appellants were her co-apprentices. Over the course of the respondent’s employment with the first appellant, she was subject to unlawful discrimination and sexual harassment by the third, fourth, and fifth appellants (among others). The complaint by the respondent included her receiving sexual comments and unequal treatment by her superiors and co-workers because she was a female, and many of her peers told her that she was not fit for her job because she was a female. Examples of these acts were a display of pictures and posters of half-dressed women in various parts of the workplace, addressing the respondent in the presence of others at a training with inappropriate comments, not giving the respondent the same work opportunities as her male peers, and providing her with unfavourable report cards that included clear comments against her as a female. The Anti-Discrimination Tribunal in the first instance found that the first appellant was negligent in providing the proper training to its employees on anti-discrimination and sexual harassment at the work place, subsequently allowing the other appellants to act in a discriminatory way towards the respondent because of her gender. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the appellants to pay the respondent compensation  for damages caused by discrimination and sexual harassment. The appellants’ filed this appeal objecting to the Tribunal’s findings. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.



Lei Nº 13.811 (2019)

Forced and early marriage, Gender discrimination

This law amends Article 1,520 of the Civil code in order to establish that only persons who have reached the age of marriage determined in article 1,517 of the Civil Code may marry. Article 1,517 of the Civil Code provides that a man and woman who have not reached the age of majority may marry at age 16 if they have received authorization from both of their parents or their legal representatives. (Article 5 of the Civil Code provided that minority ceases at the age of 18, when the person is entitled to practice all acts of civil life.) Before this amendment, Article 1,520 of the Civil Code established that those who had not yet reached the age of marriage according to Article 1,517 would be allowed to marry to avoid the imposition or enforcement of criminal penalties or in the case of pregnancy. This is no longer permitted as a reason to marry younger than the age of 16.



Habeas Corpus 124.306 Superior Tribunal de Justiça (Superior Court of Justice of Brazil) (2016)

Abortion and reproductive health rights, Gender discrimination

The Superior Court of Justice of Brazil revoked the pretrial detention order issued against staff and patients of a clinic that was alleged to have been performing clandestine abortions. The Court found that criminal laws against abortion were unconstitutional, and the criminalization of voluntary termination of pregnancy during the first three months was incompatible with the protection of multiple fundamental rights of women. The decision set an important precedent for the sexual and reproductive rights of women in Brazil. The court also discussed that the criminalization of abortion disproportionately affected women living in poverty who do not have access to private or public abortion clinics. Judge Barroso stated that while the potential life of the foetus is important, the criminalisation of abortion before the end of the first three months of pregnancy violated several fundamental rights of women granted by the Brazilian Constitution of 1988 (personal autonomy, physical and mental integrity, sexual and reproductive rights and gender equality). This decision does not decriminalize abortion but suggests that abortion may be legalised in the future. This is perhaps a softening of the law regarding abortion in Brazil.  



Direct Action of Unconstitutionality (ADI) 4275 Supremo Tribunal Federal (Supreme Federal Court of Brazil) (2009)

Gender discrimination, LGBTIQ

Brazil’s Supreme Court decided by a majority that transgender individuals could change their legal name and gender marked in the civil registry. The court stated that this does not require psychological evaluation, hormonal treatment, transition surgery, or any other medical procedure. The court recognized the right of transgender persons to change their civil registry without gender change or even judicial authorization. All the justices of the court recognized the right and the majority understood that no judicial authorization is necessary of the amendment.



Habeas Corpus 143.641 São Paulo Supremo Tribunal Federal (Supreme Federal Court of Brazil)

Gender discrimination

In this case, Brazil’s Supreme Court issued a landmark ruling that pregnant women, mothers of children up to the age of 12, and mothers with disabled children accused of non-violent crimes should be permitted to await trial under house arrest rather than in detention. Minister Ricardo Lewandowski of the Federal Supreme Court granted in this judgment habeas corpus ex officio so that prisoners with children who have not yet been placed under house arrest are entitled to the benefit.



X. v. Y. Cour du travail de Bruxelles (Brussels Labor Court) (2017)

Employment discrimination, Gender discrimination

A woman informed her employer of the fact that she was pregnant. Two months later, her employer fired her due to alleged restructuring of the company. Subsequently, the appellant started proceedings before the Court to receive an indemnity.  The appellant claims that she has a right of indemnity based on the right of pregnant women to be protected against redundancy or, following the right to be protected against discrimination. The court held for the appellant and ordered the previous employer to pay the appellant a sum of EUR 33,135.00 and EUR 703.24 and to deliver to the appellant requested social documents.



The State of New South Wales v. Amery High Court of Australia (2006)

Employment discrimination, Gender discrimination

The policy and practice of the New South Wales Department of Education and Training restricted pay scales of temporary teachers to level 8, which excluded temporary staff from the highest level of pay. The applicants, 13 female temporary teachers, sued, arguing that only permanent staff had access to the highest pay rates and that there was a gender imbalance between permanent and temporary teachers. Of the 13 female teachers, 11 took temporary rather than permanent positions due to family responsibilities and two applied for permanent positions, but those two, due to family reasons, limited the areas in which they could work. The court considered that making over-award payments to only women would be discriminatory against men, whereas the second option of making over-award payments to those who had family commitments would be difficult to formulate and to apply in practice. As such, the court held that there was no indirect discrimination.



Australian Iron & Steel Pty. Ltd. v. Banovic High Court of Australia (1989)

Employment discrimination, Gender discrimination

The case concerned a challenge to the employer’s retrenchment policy. The applicant alleged that the criterion was discriminatory as substantially higher proportion of men could comply than women. Although the retrenchment applied to both sexes, there were fewer women in positions of seniority who were immune from the retrenchment because the employer had a history of discriminating in its hiring decisions. As such, the court found indirect discrimination because the retrenchment policy unlawfully maintained discriminatory circumstances.



Decision of the Constitutional Tribunal, Case 1708/2013 Constitutional Tribunal (2013)

Employment discrimination, Gender discrimination

The plaintiff in this action was an elected councilor in the municipality of Tolata. She was forced to sign a letter of resignation under pressure from a group of intruders who had entered the session room of the municipal building. The plaintiff alleged that her rights relating to legal security in the exercise of a public function under Articles 46 and 144 of the constitution were violated and sought constitutional protection and the return to the office of municipal councilor of Tolata. The Constitutional Tribunal granted these requests.

La demandante en esta acción era un concejal electo en el municipio de Tolata. Se vio obligada a firmar una carta de renuncia bajo la presión de un grupo de intrusos que habían entrado en la sala de sesiones del edificio municipal. La demandante alegó que sus derechos relacionados con la seguridad jurídica en el ejercicio de una función pública en virtud de los Artículos 46 y 144 de la constitución fueron violados y solicitó protección constitucional y el regreso a la oficina del concejal municipal de Tolata. El Tribunal Constitucional concedió estas solicitudes.



Decision of the Constitutional Tribunal, Case 1961/2013 Constitutional Tribunal (2013)

Domestic and intimate partner violence, Gender discrimination

The Constitutional Tribunal held that the conduct of the municipal authorities forcing a victim of gender violence to reconcile with her aggressor under the threat of taking her children to a shelter violates the right of women to live free from violence. The Tribunal held that this conduct constituted undue harassment.

El Tribunal Constitucional sostuvo que la conducta de las autoridades municipales, obligando a una víctima de violencia de género a reconciliarse con su agresor bajo la amenaza de llevar a sus hijos a un refugio es contra el derecho de las mujeres a vivir libres de violencia. El Tribunal sostuvo que esta conducta constituía indebida acoso.



Decision of the Constitutional Tribunal, Case 0206/2014 Constitutional Tribunal (2015)

Abortion and reproductive health rights, Gender discrimination

Patricia Mansilla Martínez, a member of the Bolivian Parliament, challenged the constitutionality of several articles of the Criminal Code on the basis that they discriminated against women. The Court held that some of the challenged articles were unconstitutional and upheld others. On the grounds of gender discrimination, the Court found unconstitutional Article 56, which prevented imprisoned women from being employed outside of prisons while allowing imprisoned men outside employment, and Article 245, which recognized as a defense to the offense of falsifying a birth record the motive of protecting the honor of one’s wife, mother, daughter, or sister. The Court declared unconstitutional the words “fragility” and “dishonor” in Article 258 regarding infanticide also due to gender discrimination, although this did not affect the operation of the offense. The final unconstitutional issue was that Article 250 criminalized an unmarried man abandoning a woman who became pregnant with him, but did not criminalize a married father’s abandonment of his pregnant wife. The Court was unwilling to hold restrictions on abortion unconstitutional. As such, receiving an abortion remains prohibited under Articles 263 and 264, and the performance of abortion is prohibited under Article 269. However, the Court did declare unconstitutional the requirements in Article 266 that a woman inform the police and obtain judicial authorization in order to obtain an abortion in the case of rape or incest (article 266).

Patricia Mansilla Martínez, quien es miembro del Parlamento boliviano, cuestionó la constitucionalidad de varios artículos del Código Penal sobre la base de que eran discriminatorios contra las mujeres. El Tribunal sostuvo que varios de los artículos impugnados eran inconstitucionales: el Artículo 56, que impedía que las mujeres encarceladas fueran empleadas fuera de las cárceles mientras que los hombres encarcelados, por otro lado, podían tener empleo y el Artículo 245, que reconocía la protección del honor de la esposa, la madre, la hija o la hermana de uno como defensa al delito de falsificar un registro de nacimiento. Ambos Artículos se consideraron inconstitucionales sobre la base de la discriminación de género. La Corte declaró que las palabras "fragilidad" y "deshonra" contenidas en el Artículo 258 en asociación con el infanticidio eran inconstitucionales por la misma base, aunque esto no afecta el funcionamiento del delito. Además, la distinción dentro del Artículo 250 que penalizaba el abandono por parte de un padre de una mujer que no es su esposa después de dejarla embarazada pero que no se aplicaba a la esposa de un padre también se consideró inconstitucional. La Corte no estaba dispuesta a mantener las restricciones sobre el aborto como inconstitucionales. Como tal, recibir un aborto sigue prohibido según los Artículos 263 y 264, y el aborto está prohibido según el Artículo 269. Sin embargo, la Corte declaró inconstitucional los requisitos del Artículo 266 de que una mujer informe a la policía y obtenga la autorización judicial para obtener un aborto en caso de violación o incesto (artículo 266).



Moosa N.O. and Others v. Harnaker and Others High Court of South Africa: Western Cape Division (2017)

Gender discrimination, Property and inheritance rights

The deceased was married to the second and third applicant under Islamic law. The marriage of the deceased and the third applicant was entered into before the marriage between the deceased and the second applicant. However, the deceased and the second applicant entered into a civil marriage to qualify for a home loan. Following the death of the deceased, The Registrar of Deeds, Cape Town, refused to register the title deed to the family home in the name of the third applicant. The Registrar’s refusal was premised on the meaning of the term “surviving spouse” as contemplated in terms of section 2C(1) of the Wills Act 7 of 1953 (the “Wills Act”). According to the Registrar, the only recognised surviving spouse of the deceased is the second applicant as they entered into a civil marriage. The Court declared section 2C(1) of the Wills Act unconstitutional as it does not recognise the rights of spouses married under Islamic law nor multiple female spouses married to a deceased testator in polygynous Muslim marriages.

Die oorledene is volgens die Islamitiese Wet met ‘n tweede en derde applikant getroud.  Die huwelik van die oorledene en die derde applikant is aangegaan voor die huwelik tussen die oorledene en die tweede applikant.  Die oorledene en die tweede applikant het egter ‘n siviele huwelik aangegaan om te kwalifiseer vir ‘n huislening.  Na die afsterwe van die oorledene het die Registrateur van Aktes, Kaapstad, geweier om die titel-akte van die gesinshuis in die naam van die derde aansoeker te registreer.  Die weiering van die registrateur is gegrond op die betekenis van die term “oorlewende gade” soos beoog in terme van artikel 2C(1) van die Wet op Testamente 7 van 1953 ( die “Testamente Wet”). Volgens die registsrateur is die enigste erkende oorlewende gade van die oorledene, die tweede aansoeker aangesien hulle ‘n siviele huwelik aangegaan het.  DIe hof het artikel 2C(1) van die Wet op testamente ongrondwetlik verklaar aangesien dit nie die regte van gades wat kragtens die Islamitiese wet getroud is, erken nie asook nie veelvuldige vroulike eggenote wat met ‘n oorlede testateur in ‘n poligamiese moslemhuwelik verbind is nie.



Hassam v. Jacobs NO Constitutional Court (2009)

Gender discrimination

The applicant was in a polygamous Muslim marriage. After her husband died intestate, the respondent, the executor of the deceased’s estate, refused the applicant’s claims on the basis that polygynous Muslim marriages were not legally recognised under the Intestate Succession Act. The court held that precluding the applicant from an inheritance unfairly discriminated on the grounds of religion, marital status, and gender, and was therefore inconsistent with section 9 of the Constitution. The court found that section 1 of the Intestate Succession Act was inconsistent with the Constitution and invalid to the extent that it did not include more than one spouse in a polygynous Muslim marriage in the protection afforded to “a spouse.” Accordingly, the applicant could inherit from her late husband’s estate.

Die applikant was in ‘n poligame Moslem-huwelik.  Nadat haar man intestaat gesterf het, het die respondent, die eksekuteur van die oorledene se boedel, die applikant se eise geweier op grond daarvan dat poligame Moslem huwelike nie wettiglik erken word onder die Intestate Erfreg Wetgewing nie. Die hof het bevind dat daar onbillik gediskrimineer was teen die applikant op grond van godsdiens, huwelikstatus en geslag, was dus strydig met Artikel 9 van die Grondwet.  Die hof het bevind dat Artikel 1 van die Intestate Wet strydig was met die konstitusie (Grondwet) en ongeldig is tot die mate dat dit nie meer as een gade in ‘n poligame Moslem-huwelik insluit tot die beskerming wat aan ‘n eggenoot gegee word nie.  Gevolglik kon die applikant uit die boedel van haar oorlede man erf.



Daniels v. Campbell and Others Constitutional Court (2004)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The applicant was a woman married according to Muslim rites and whose husband had died intestate. The marriage was not solemnized by a marriage officer under the Marriage Act 25 of 1961. The house in which the applicant and her husband had lived was transferred to the deceased’s estate. The applicant was told that she could not inherit from the estate of the deceased because she had been married according to Muslim rites, and therefore was not a “surviving spouse.” A claim for maintenance against the estate was rejected on the same basis. The Court held that the word “spouse” as used in the Intestate Succession Act includes the surviving partner to a monogamous Muslim marriage and that the word “survivor” as used in the Maintenance of Surviving Spouses Act 27 of 1990, includes the surviving partner to a monogamous Muslim marriage.

Die applikant was ‘n vrou wat volgens Moslem tradisie getroud is en wie se eggenoot intestaat gesterf het. Die huwelik is nie volgens die huwelikswet 25 van 1961 deur ’n huweliks beampte bekragtig nie. Die huis waarin die applikant en haar man gewoon het is na die oorledene se boedel oorgeplaas. Die applikant is meegedeel dat sy nie uit die boedel van die oorledene kon erf nie omdat sy getroud was volgens die Moslem tradisie en is dus nie 'n "oorlewende gade" nie. ’n Eis vir onderhoud teen die boedel is op dieselfde basis verwerp. Die hof het beslis dat die woord "gade" soos gebruik word in die Wet op Intestate Erfopvolging, die oorlewende maat van ’n monogame moslem-huwelik insluit. Die woord "oorlewende” wat gebruik word vir die Wet 27 van 1990 vir die onderhoud van oorlewende eggenote, sluit die oorlewende eggenoot in van 'n monogame Moslem huwelik



Bhe and Others v. Khayelitsha Magistrate Constitutional Court (2004)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

This judgment constituted three related cases (Bhe, Shibi and SAHRC), which were decided together and concerned the African customary law rule of primogeniture. In Bhe, a mother brought an action to secure the property of her deceased husband for her daughters. In Shibi, the applicant was denied the right to inherit from her deceased brother’s intestate estate under African customary law. In SAHRC, the South African Human Rights Commission and the Women’s Legal Centre Trust brought an action in the public interest to declare the rule of male primogeniture contained within section 23 of the Black Administration Act 38 of 1927 invalid. The Constitutional Court declared section 23 invalid, meaning that all deceased estates were to be governed by the Intestate Succession Act 81 of 1987, under which widows and children can benefit regardless of their gender or legitimacy. The Court also ordered the division of estates in circumstances where the deceased person was in a polygamous marriage and was survived by more than one spouse and ordered that, in such instances, a surviving spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed by the Minister for Justice and Constitutional Development by notice in the Gazette.

Hierdie uitspraak het bestaan uit drie verwante sake (BHE, Shibi en SARK) wat saam beslis is en het betrekking op die Afrika gebruiks regsreël van eersgeboortereg. In BHE het 'n moeder 'n saak gemaak om die eiendom van haar oorlede man vir haar dogters te verseker. In Shibi is die applikant volgens die Afrika gewoontereg, die reg ontsê om van die intestate boedel van haar broer te erf.  In SAHRC het die Suid-Afrikaanse Menseregte Kommissie en die "Women’s Legal Centre Trust" 'n saak in die openbare belang gebring om die reël van manlike eersgeboortereg wat in artikel 23 van die Swart Administrasie Wet 38 van 1927 ongeldig te verklaar. Die Konstitusionele Hof het artikel 23 ongeldig verklaar wat beteken dat alle boedels van oorledenes onderworpe sal wees aan die Intestaat Opvolgwet 81 van 1987 waaronder weduwees en kinders voordeel kan trek ongeag hul geslag of wettigheid. Die Hof het ook gelas dat boedels onderverdeel word in omstandighede waar die oorledene in ’n poligame huwelik was en deur meer as een eggenoot oorleef word. In welke geval ’n oorlewende eggenoot ’n kind se deel van die intestate boedel erf of ’n waarde van die intestate boedel wat nie die bedrag wat deur die Minister vir Justisie en Grondwetlike Ontwikkeling vasgesteld is, oorskry word soos die kennisgewing in die Staatskoerant nie.



Women's Legal Centre Trust v. President of the Republic of South Africa and Others High Court of South Africa: Western Cape Division (2018)

Gender discrimination, Property and inheritance rights

The plaintiff petitioned to bring three consolidated actions directly to the Constitutional Court.  They sought a declaratory order that the President recognize Muslim marriages as valid for all purposes in South Africa.  The Constitutional Court dismissed the plaintiffs’ plea for direct access and instead directed them to the High Court.  The High Court held that the State’s failure to enact legislation recognising religious Muslim marriages violated the rights of Muslim women based on religion, marital status, gender, and sex.  The court directed the President, Cabinet, and Parliament to prepare and bring into operation legislation to recognise marriages performed in accordance with Sharia law.

Die eiser het 'n versoek om drie gekonsolideerde aksies direk na die Konstitusionele Hof te bring.  Hulle het 'n verklarende-bevel aangevra dat die President, Moslem-huwelike as geldig vir alle doeleindes in Suid-Afrika erken. Die Konstitusionele Hof het die eisers se pleit vir direkte toegang van die hand gewys en het hulle eerder aan die Hooggeregshof verwys.   Die Hooggeregshof het bevind dat die staat se versuim om wetgeving te aanvaar wat erkenning gee aan huwelike wat godsdienstig Moslem is, die regte van Moslemvroue gekend het op grond van godsdiens, huwelikstatus, geslag en seks.  Die hof het die President, die Kabinet, en die Parlement oprag gegee om wetgeving voor te berei en in werking te stel om huwelike wat volgens die sharia-wetgewing uitgevoer is, te erken.



邓亚娟邓与北京手挽手劳务派遣有限责任公司一般人格权纠纷,北京市第三中级人民法院 (Deng v. Beijing Shouwanshou Co. Ltd.) No. 3 Intermediate People's Court of Beijing Municipality (2016)

Employment discrimination, Gender discrimination

The plaintiff sued the defendants for infringing on her equal employment rights. The plaintiff alleged that the job description for the courier position included: “Eligibility: Men.”  When Deng went for an interview, she was advised that “we never have women couriers.”  She was subsequently informed that Beijing Postal could not authorize an employment contract for her because she is female. The plaintiff requested relief of, among other things, an official apology and 50,000 Chinese yuan as compensation of for mental distress.  The court of first instance held that the defendants infringed upon the plaintiff’s right of employment equality under the People’s Republic of China’s Employment Law. The Court also rejected the defendants’ argument that the courier position fit within the statutory exceptions under “Special Regulations on Protection of Female Workers,” which prohibits female workers from working in certain fields involving heavy manual labor. The Court of first instance awarded 2,000 Chinese yuan as compensation for mental distress but denied the request for an official apology. Both the plaintiff and defendants appealed.  The Intermediate People’s Court affirmed the lower court’s determination that a courier does not fit within the statutory exceptions for positions “unsuitable for women.” The court also held that compensation of 2,000 Chinese yuan was commensurate with the damages suffered by the plaintiff, and that there was insufficient ground to require an official apology from the defendants to the plaintiff.

就业歧视、性别歧视

原告诉称被告侵犯了她与男子平等的就业权利。原告称被告公司招聘快递员广告的任职资格为“男”。在原告到被告公司面试时,被告人事部称:“我们这儿从来没有过女快递员。”之后被告公司称因为原告是女性所以总公司(邮政公司)不批准签合同。原告的诉讼请求包括被告进行书面赔礼道歉和精神损害抚慰金人民币50000元。原审法院认为根据《中华人民共和国劳动法》,被告侵犯了原告与男子平等的就业权利。被告辩称快递员职位属于《女职工劳动保护特别规定》下禁止女性从事的体力劳动。原审法院驳回了被告的辩解。原审法院判决被告赔偿原告精神损害抚慰金2000元,并驳回了原告要求被告赔礼道歉的诉讼请求。原告与被告均不服原审判决并提起上诉。中级人民法院维持了原审法院的判决,认为快递员职位不属于法律禁止女性从事的体力劳动。中级人民法院认为精神损害抚慰金2000元和原告受到的伤害程度能够匹配,而书面赔礼道歉的要求依据不足。



梁海媚与广东惠食佳经济发展有限公司、广州越秀区名豪轩鱼翅海鲜大酒楼人格权纠纷,广东省广州市中级人民法院 (Liang v. Guangdong Huishijia Economic Development Co. Ltd.) Intermediate People's Court of Guangzhou Municipality (2016)

Employment discrimination, Gender discrimination

The plaintiff sued the defendants for infringing upon her right to employment equality. The plaintiff alleged that the online advertisement posted by the defendants, to which Liang responded, required kitchen apprentices to be “men between the ages of 18 and 25.” The plaintiff further alleged that when she went to the restaurant, the receptionist informed her of the restaurant’s policy that “all employees in the kitchen should be men, even if a woman possesses the qualifications of a chef.” The plaintiff alleged that the defendants’ behavior violates Articles XII and XIII of the People’s Republic of China’s Employment Law, which provide that potential employees should not be discriminated against on the bases of ethnicity, race, sex, and religious beliefs. As relief, the plaintiff requested (1) an official apology from the defendants; (2) 21 Chinese yuan in damages for costs incurred by responding to the advertisement; and (3) 40,800 Chinese yuan in damages for emotional distress. The court of first instance held that the defendants’ actions constituted gender-based discrimination against the plaintiff. However, it found insufficient evidence for the plaintiff’s emotional distress and awarded 2,000 Chinese yuan in damages. It also denied Liang’s request for an official apology. Both the plaintiff and defendants appealed.  Relying on the explicit requirement in the advertisement and the receptionist’s explanations that the candidate be a man, the Intermediate People’s Court held that the defendants’ exclusion based on the plaintiff’s gender was unlawful and unreasonable and constituted gender-based employment discrimination. With respect to relief, the Intermediate People’s Court held that under the Supreme People’s Court’s interpretations, emotional distress normally should not be compensated in monetary terms unless there are severe consequences.  The Intermediate People’s Court held that compensation of 2,000 Chinese yuan was within the discretion of the lower court, and thus upheld the amount. The Intermediate People’s Court, however ordered the defendants to issue an official apology to the plaintiff in newspapers in the Guangzhou area.

就业歧视、性别歧视

原告诉称被告侵犯了她与男子平等的就业权利。原告称自己对被告的网上招聘广告进行了应聘。招聘广告要求厨房学徒须为“男性,18-25岁”。原告称在她去被告酒楼时,被告知公司规定厨房不找女工,即使具备厨师证也不行。原告称被告违反了《中华人民共和国劳动法》第十二条和第十三条的规定。法律规定,劳动者就业,不因民族、种族、性别、宗教信仰不同而受歧视。原告的诉讼请求包括(1)判决被告书面赔礼道歉;(2)判决被告连带赔偿原告因应聘产生的经济损失21元;(3)判决被告赔偿原告精神损害抚慰金40800元。原审法院判决被告的行为构成了对被告的性别歧视,但原告提交的证据不足以支持原告精神损害抚慰金的诉讼请求,并判决被告支付原告经济损失2000元。原审法院还驳回了原告要求被告书面赔礼道歉的诉讼请求。原告与被告均不服原审判决并提起上诉。根据被告招聘广告和前台工作人员对只招聘男性厨师的解释,中级人民法院认定被告对原告进行限制及排斥的行为不具有合法性,并且损害了女性应聘者的就业平等权。就赔偿问题,中级人民法院判决,在最高法院的解释下,因侵权致人精神损害,但未造成严重后果,受害人请求精神损害赔偿的,一般不予支持。原审法院酌情由被告赔偿原告精神损害2000元,属于原审法院自由裁量权范围,中级人民法院予以维持。中级人民法院判决被告向原告作出书面赔礼道歉。



Saks v. Franklin Covey Co. United States Court of Appeals for the Second Circuit (2003)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination

The plaintiff’s employee health benefit plan denied coverage for certain infertility procedures that can only be performed on women, including in vitro fertilization (“IVF”). She sued her employer for unlawful discrimination under the Americans with Disabilities Act (“ADA”), Title VII, the Pregnancy Discrimination Act, and state law. The United States District Court for the Southern District of New York granted summary judgment in favor of the defendant-employer. On the plaintiff’s appeal, the Second Circuit analyzed the issue differently than the district court but ultimately affirmed the grant of summary judgment, finding that the health plan’s exclusion of coverage for surgical implantation procedures limited its infertility procedures for male and female employees equally and as a result did not amount to unlawful discrimination.



Lavin-McEleney v. Marist College United States Court of Appeals for the Second Circuit (2001)

Employment discrimination, Gender discrimination

The plaintiff, a female professor sued the defendant, alleging that her salary raises were less than those of comparable male professors in violation of the Equal Pay Act and Title VII. At trial, both parties’ experts provided statistical evidence based on multiple regression analyses controlled to eliminate any observed gender disparity, including rank, years of service, division, tenure status, and degrees earned. Both experts found a difference in pay between comparable men and women, but disagreed about the statistical significance of that difference. The District Court for the Southern District of New York entered judgment for the plaintiff. The defendant appealed, arguing that the plaintiff had failed to make a case for discrimination because she had not identified a specific higher-paid male professor in her department and that she had impermissibly compared herself to a male employee statistical composite rather than an actual male employee. The Second Circuit affirmed the district court’s decision, holding that the plaintiff had identified a specific male comparator since only two other professors were comparable in each of the five categories identified by the expert witnesses, and one of them was a male professor who received higher pay. The Second Circuit further held that it was proper for the professor to introduce



Raniola v. Bratton United States Court of Appeals for the Second Circuit (2001)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff, a female police officer sued a police department, alleging hostile work environment, sexual harassment, and retaliation claims under Title VII. The plaintiff alleged that she suffered years of abuse because she was a woman, including derogatory remarks, disproportionately burdensome assignments, sabotage of her work, threats, and false accusations of misconduct. The United States District Court for the Southern District of New York granted the defendants’ motion for judgment as a matter of law. The Second Circuit reviewed all the evidence in the light most favorable to the officer and found that a reasonable jury could have arrived at a different conclusion than the district court. The Second Circuit determined that the evidence presented by the officer formed a sufficient basis for a reasonable jury to conclude that she was subjected to hostile work environment because she was a woman and that she was suspended, put on probation, and then terminated in retaliation for having complained about her treatment. The Second Circuit vacated the judgment and remanded the claims for retrial.



Spann v. Abraham Court of Appeals of Tennessee (1999)

Employment discrimination, Gender discrimination

The plaintiff, a cook and assistant manager at the defendant’s pizza franchise, informed her employer that she was pregnant. The defendant offered her the position of a backup night driver—a position she had held before—and proposed that his son replace her as the assistant manager while she took maternity leave. When she refused, the defendant informed her that if she did not accept the temporary reassignment, he had no other position for her. She quit soon after and sued in the Davidson County Circuit Court for pregnancy discrimination in violation of the Tennessee Human Rights Act (“THRA”). The Court entered a directed verdict in favor of her employer, and the Court of Appeals of Tennessee affirmed, finding that the plaintiff had failed to establish a prima facie case that the defendant discriminated against her because she was pregnant.



Keeton v. Hill Court of Appeals of Tennessee at Nashville (2000)

Gender discrimination, Sexual harassment

The plaintiff was fired for falsifying documents related to her work time. She sued in the Davidson County Chancery Court, alleging sexual harassment and retaliatory discharge in violation of the Tennessee Human Rights Act (“THRA”). The plaintiff alleged that her supervisors made sexually derogatory remarks to her, and that she was fired shortly after she complained about these comments. The Court granted summary judgment in favor of the defendant, and the Court of Appeals of Tennessee affirmed because the employer had established the affirmative defense of exercising reasonable care.



Bundy v. First Tennessee Bank National Association Court of Appeals of Tennessee at Jackson (2007)

Employment discrimination, Gender discrimination

The plaintiff, a 59 year-old male employee, was fired following his failure to disclose documents he received from a customer. He filed suit in the Shelby County Circuit Court alleging both age and sex discrimination. The Court granted summary judgment in favor of his employer, and the Court of Appeals of Tennessee affirmed because the plaintiff was neither replaced by a younger female employee nor was he similarly situated to a younger female employee.



Smith v. City of Chattanooga Court of Appeals of Tennessee at Knoxville (2007)

Employment discrimination, Gender discrimination

The plaintiff was a police officer with the Chattanooga Police Department. After repeated sexual harassment by a fellow officer, she filed a sexual harassment complaint against the officer, and he was transferred to a different team. However, he still worked in close physical proximity to the plaintiff and his presence intimidated her. She filed suit in the Hamilton County Chancery Court, alleging hostile work environment and sexual harassment in violation of the Tennessee Human Rights Act (“THRA”). The Court granted a directed verdict in favor of the police department, but the Court of Appeals of Tennessee vacated the verdict, finding that reasonable minds could differ on whether the employer established the affirmative defense that it took appropriate corrective action.



Bellomy v. Autozone, Inc. Court of Appeals of Tennessee at Knoxville (2009)

Employment discrimination, Gender discrimination

The plaintiff was the defendant’s employee. She applied for the position of store manager, but the promotion was given to a younger male employee with less experience. She sued her employer in the Hamilton County Chancery Court alleging sex discrimination and other tort claims. The Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed and remanded her sex discrimination claims, finding that a genuine issue of material fact existed as to whether the plaintiff was qualified for the store manager position.



Hartman v. Tennessee Board of Regents Court of Appeals of Tennessee at Nashville (2011)

Employment discrimination, Gender discrimination

The plaintiff was a long-time employee of Tennessee Tech University’s facilities department, where she managed inventory and was required to make purchases of supplies and equipment. After she made a purchase that exceeded her $5,000 purchasing authority, and even though she had recruited multiple bids for the product and chose the best supplier, her employment was terminated. The plaintiff filed suit in the Putnam County Chancery Court for gender discrimination. The Court granted summary judgment in favor of the defendant. The Court of Appeals of Tennessee affirmed, finding that the plaintiff had not sufficiently alleged that a similarly-situated male employee was treated more favorably, even though she had named a male employee who was not fired after making a purchase that exceeded his purchasing authority.



Castro v. TX District Court of Appeals of Tennessee at Jackson (2013)

Employment discrimination, Gender discrimination

The plaintiff worked at-will as a sales representative for the defendant. Shortly after she started working there, she discovered she was pregnant and informed her supervisor. Shortly after that, her supervisor informed her that her yearly salary would be halved, allegedly because she had failed to meet sales quotas. When she contacted the CEO (with whom she had interviewed) about her pay reduction, her supervisor met informed her that it was inappropriate to go over his head. After renegotiating the terms of her employment, her employment was soon terminated, again allegedly for failing to meet sales quotas. The plaintiff filed suit in the Shelby County Chancery Court for of sex and pregnancy discrimination, retaliation, and hostile work environment. The Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed, holding that the defendant did not establish that there were no male comparators that were treated more favorably than the plaintiff.



Pierce v. City of Humboldt Court of Appeals of Tennessee at Jackson (2013)

Employment discrimination, Gender discrimination

The plaintiff was a police officer with the Humboldt Police Department. While off duty, she ran into an ex-boyfriend against whom she had a protective order. Based on this encounter, she filed a criminal charge against him for violating the order. The chief of police commenced an internal affairs investigation into her charges, and her ex-boyfriend filed a criminal charge against her for filing a false charge. While both charges were pending, the plaintiff informed the chief of police that she was pregnant. Once the internal affairs investigation was completed, the plaintiff’s employment was terminated. She filed suit in the Gibson County Circuit Court for discrimination based on gender and pregnancy in violation of the Tennessee Human Rights Act (“THRA”). The Circuit Court granted summary judgment in favor of her employer, but the Court of Appeals of Tennessee reversed and remanded, finding that the plaintiff had sufficiently alleged that she was treated differently than similarly situated male police officers.



Women's Medical Center of Providence, Inc. v. Roberts United States District Court for the District of Rhode Island (1982)

Abortion and reproductive health rights, Gender discrimination

This case struck down provisions of the Rhode Island “Informed Consent for Abortion” Act for failure to demonstrate a compelling state interest to justify its interference with women’s rights to abortion including: (i) a provision that required women be informed of “all medical risks” associated with the abortion procedure, including “psychological risks to the fetus,” as such a provision was unconstitutionally vague; (ii) a provision requiring a woman seeking abortion to give written consent to the procedure at least 24 hours prior to her scheduled operation, as such a provision imposed a legally significant burden on a woman’s fundamental right to terminate her pregnancy, and the state did not demonstrate a compelling state interest necessitating such waiting period. However, the Court upheld a provision requiring that an abortion patient be informed of the “nature of her abortion,” i.e., that the abortion will irreversibly terminate her pregnancy.



Bergaust v. Flaherty Court of Appeals of Virginia (2011)

Gender discrimination, Property and inheritance rights

The plaintiff, a mother, brought a petition for child support against the putative father.  The two met during a trip to France and had a long-distance relationship for 18 months.  After returning to Virginia from another visit to the defendant in France, the plaintiff learned she was pregnant.  Because the defendant was her only sexual partner during the relevant time period, she informed the defendant that the child was his.  The defendant said he would help in any way he could and called twice a week during the pregnancy.  Their child was born in Alexandria, Virginia, and the defendant continued to call regularly during this time.  When the child was seven months old, the defendant came to Virginia to meet and spend time with the child.  Following this visit, the defendant’s contact with the plaintiff decreased and ultimately ceased.  Several years later, the plaintiff learned of the defendant’s whereabouts and brought a petition for child support.  The circuit court dismissed the petition for lack of personal jurisdiction. The question before the Virginia Court of Appeals was whether the defendant had fathered a child in Virginia pursuant to the long-arm statute that provided, in part, that a court may exercise personal jurisdiction over a person when it is shown that the person “conceived or fathered” a child in Virginia.  The statute does not define the terms “conceived or fathered.”  In finding no personal jurisdiction, the Court of Appeals affirmed the circuit court’s interpretation of the term “fathered” to mean “to beget or to procreate as father,” rejecting the plaintiff’s argument that the term encompassed “the acknowledgment of parentage” while in Virginia.  Although the Court of Appeals acknowledged that the ordinary meaning of “fathered” includes “to make oneself the father…by acknowledgment,” the court concluded that if the state legislature had intended this broader meaning of the term, it “presumably would have included the word ‘mothered’ along with ‘conceived or fathered’ to encompass the non-custodial mother of a child living in [Virginia].”  Therefore, per Virginia law, the child was not fathered in Virginia and the long-arm statute could not grant personal jurisdiction over the matter.



Middlekauff v. Allstate Insurance Co. Supreme Court of Virginia (1994)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff sued her former supervisor and former employer for intentional infliction of emotional distress due to her supervisor’s harassment, which consisted of sexist and belittling remarks over an extended period of time.  The lower courts held that her claim was barred by the Virginia’s Workers Compensation Act, which supplies remedied for injuries by accident, arising out of and in, the course of the employment or occupational disease but excluded any other remedies for such injuries. The issue before the Court was whether a pattern of harassment constituted the type of injury for which a lawsuit had to be filed under the Workers Compensation Act only. In reversing the lower courts’ decision, the court overruled its prior decision in Haddon v. Metropolitan Life Insurance Co., 389 S.E.2d 712 (Va. 1990), which held that a pattern of sexual harassment constituted an “injury by accident” and thus could only be brought under the Workers’ Compensation Act.  The Court reasoned that Haddon was irreconcilable with long-established precedent holding that a “gradually incurred” injury over an extended period of time did not constitute an “injury by accident” and was thus not covered by the Act’s exclusion of other remedies.  The Court’s decision allowed for a tort cause of action for intentional infliction of emotional distress based on a pattern of sexual harassment in the workplace.   



Lockhart v. Commonwealth Education Systems Corp. Supreme Court of Virginia (1994)

Employment discrimination, Gender discrimination, Sexual harassment

Two plaintiffs, A and B, sued their former employer for wrongful termination, one based on racial discrimination and the other based on gender discrimination. Plaintiff B alleged that her supervisor touched her sexually without her consent and, when she complained, he fired her.  The lower courts dismissed the actions, concluding that, pursuant to the employment-at-will doctrine, the plaintiffs were at-will employees who could be terminated for any or no reason at all.  The issue before the Court was whether workplace discrimination could constitute a public policy exception to the employment-at-will doctrine and whether the availability of federal statutory remedies precluded state tort lawsuits. In reversing lower courts’ decision, the Court cited its precedents recognizing a public policy exception to the employment-at-will doctrine and concluded that it is “[w]ithout question” that it is the public policy of the Commonwealth of Virginia that individuals within the state are “entitled to pursue employment free of discrimination based on race or gender.”  The Court rejected the employer’s argument that the availability of federal statutory remedies should preclude a state tort cause of action based on wrongful discharge, explaining that it is not uncommon for injuries resulting from the same set of operative facts to give rise to multiple remedies.



Bell v. Low Income Women of Texas Supreme Court of Texas (2002)

Abortion and reproductive health rights, Gender discrimination

Physicians and clinics sued the Commissioner of Health sued, claiming that Texas Medical Assistance Program’s (“TMAP”) abortion funding restrictions for indigent women violated their constitutional rights under the Equal Rights Amendment and Equal Protection Clause of the Texas Constitution, and their rights to privacy. TMAP was prohibited from authorizing abortion services without matching federal funds. The relevant federal law, the Hyde Amendment, prevented TMAP from funding abortions unless the pregnancy resulted from rape or incest, or placed the woman in danger of death. The plaintiffs argued that the restriction constituted sex discrimination because the state funded virtually all medically necessary services for men while refusing to fund abortions that are medically necessary even though the woman is not at risk of death. The Supreme Court held that although any restriction related to abortion would only affect women, TMAP’s restriction was not “on the basis of sex,” but rather due to the nature of abortion as a medical procedure involving potential life, which has no similar treatment method. The Court noted that other than medically necessary abortions, TMAP funded virtually all other medical treatment for women, and funded abortions to the extent that matching federal funds were available. The Court held that the discouragement of abortion through funding restrictions cannot, by itself, be considered purposeful discrimination against women as a class. The Court recognized the state’s interest in encouraging childbirth over abortion and held that the right to choose an abortion does not translate into a state obligation to subsidize abortions. The Court thus held that the funding restrictions did not violate the Texas Constitution, reversing the Court of Appeals and entering judgment for the defendant.



Rhode Island Depositors Economic Protection Corp. v. Brown Supreme Court of Rhode Island (1995)

Gender discrimination

In this case, the Rhode Island Supreme Court set out the standard of scrutiny with which to view the constitutionality of laws that discriminate based on gender: “If an act employs a gender-based classification, it is subject to a middle-tier scrutiny in which the classification must be substantially related to the achievement of the statutory objective.”



Williams v. General Motors Corp. United States Court of Appeals for the Sixth Circuit (1999)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff-appellant, who worked for General Motors for more than 30 years, sued the company for violating Title VII of the Civil Rights Act, claiming that she experienced a hostile work environment and retaliation. She alleged that she suffered a variety of sexually harassing comments, as well as other slights such as being the only employee denied a break and the only employee without a key to the office. The district court granted summary judgment in favor of her employer on both her hostile work environment and retaliation claims. The Sixth Circuit affirmed the district court’s grant of summary judgment on the plaintiff’s retaliation claim, but reversed and remanded the lower court’s ruling on her hostile work environment claim, finding that there was a genuine issue of material fact as to whether her allegations were sufficiently severe or pervasive enough to violate Title VII.



Smith v. City of Salem United States Court of Appeals for the Sixth Circuit (2004)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant a trans woman lieutenant in the Salem, Ohio, Fire Department, sued the City of Salem, alleging discrimination based on sex in violation of Title VII of the Civil Rights Act. According to the plaintiff’s complaint, after she began expressing a more feminine appearance at work on a full-time basis, her co-workers informed her that she was not acting masculine enough. She then notified her immediate supervisor that she had been diagnosed with gender identity disorder and that she planned to physically transition from male to female. The plaintiff’s supervisor met with the City of Salem’s Law Director and other municipal officials, who required the plaintiff to undergo three psychological evaluations. The plaintiff retained legal counsel, received a “right to sue” letter from the U.S. Equal Opportunity Employment Commission, and was shortly thereafter suspended for one 24-hour shift, allegedly in retaliation for retaining counsel. The district court dismissed his complaint, but the Sixth Circuit reversed and remanded, holding that the plaintiff sufficiently plead a prima facie case of retaliation under Title VII, as well as claims of sex stereotyping and gender discrimination.



Barnes v. City of Cincinnati United States Court of Appeals for the Sixth Circuit (2005)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant, a trans (“a pre-operative male-to-female transsexual”) police officer, applied to be promoted to sergeant within the Cincinnati Police Department. The plaintiff passed the sergeants exam but failed a rigorous training program and was denied promotion. The plaintiff sued the City of Cincinnati, alleging that the denial of her promotion was due to sex-based discrimination and failure to conform to male sex stereotypes, such as wearing makeup, in violation of Title VII of the Civil Rights Act and the Equal Protection Clause. The district court ruled in favor of the plaintiff and awarded her $320,511 as well as attorney’s fees and costs. The Sixth Circuit affirmed, holding that the plaintiff met all four requirements of a claim of sex discrimination: that the plaintiff is a member of a protected class, that she applied and was qualified for a promotion, that she was considered for and denied a promotion, and that other employees of similar qualifications who were not members of the protected class received promotions.



Thornton v. Federal Express Corp. United States Court of Appeals for the Sixth Circuit (2008)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff-appellant, a former employee of FedEx, the defendant, was discharged when she did not return from work after a 16-month leave of absence. She took this leave because of stress she suffered after being sexually harassed by her immediate supervisor, and she did not return to work because her health care providers had not released her from treatment for panic disorder and fibromyalgia. The plaintiff sued for sex discrimination in violation of Title VII of the Civil Rights Act, as well as discrimination based on disability in violation of the Americans with Disabilities Act. The District Court granted summary judgment in favor of FedEx, and the Sixth Circuit affirmed, holding that the plaintiff did not establish either that she was disabled under the Americans with Disabilities Act or that she suffered an adverse employment action.



Gilbert v. Country Music Association, Inc. United States Court of Appeals for the Sixth Circuit (2011)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

After the plaintiff-appellant, a theater professional who was openly homosexual, complained that a coworker had threatened him based on his sexual orientation and a union hiring hall of which the plaintiff was a member refused to provide him with work. Gilbert sued his union and a collection of various employers, alleging, among other claims, discrimination under Title VII of the Civil Rights Act. The district court granted the defendants’ motion to dismiss, holding that Title VII does not prohibit discrimination based on sexual orientation. The Sixth Circuit affirmed in part and reversed in part. The court observed that, while Title VII prohibits sex discrimination, and that this prohibition includes “sex stereotyping” whereby a plaintiff suffers an adverse employment action due to his or her nonconformity with gender stereotypes. The court held that Gilbert had not plead a sex stereotyping claim since other than his sexual orientation, the plaintiff fit every male stereotype, and sexual orientation did not suffice to obtain recovery under Title VII: “[f]or all we know,” the Court stated, “Gilbert fits every ‘male stereotype’ save one—sexual orientation—and that does not suffice to obtain relief under Title VII.”



Kalich v. AT&T Mobility United States Court of Appeals for the Sixth Circuit (2012)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The plaintiff-appellant sued his employer, AT&T, in state court under Michigan’s Elliott-Larsen Civil Rights Act, and AT&T removed the action to the United States District Court for the Eastern District of Michigan. The plaintiff alleged that his immediate supervisor made a series of sexually inappropriate comments to him over the course of a year that created a hostile work environment. These comments included calling him by a girl’s name and telling him he looked like a girl. The district court granted the defendant’s motion for summary judgment, and the Sixth Circuit affirmed, holding that the plaintiff failed to demonstrate that his supervisor’s conduct toward him was because of his gender. The appellate court noted that the plaintiff stated in his deposition that he believed that his supervisor made these derogatory comments because he knew or suspected that the plaintiff was gay and that sexual orientation discrimination was not a protected classification under Title VII or Michigan law.



Jackson v. VHS Detroit Receiving Hospital, Inc. United States Court of Appeals for the Sixth Circuit (2016)

Employment discrimination, Gender discrimination

The plaintiff-appellant worked as a mental health technician for the defendant, Detroit Receiving Hospital’s Mental Health Crisis Center. Her duties included assisting registered nurses with treating psychiatric patients. A few days after assisting a nurse with the mistaken discharge of a patient who should not have been discharged, the plaintiff’s employment was terminated, even though she consistently received high ratings on her performance evaluations. The plaintiff sued the defendant for sex discrimination in violation of Title VII of the Civil Rights Act. The district court granted summary judgment in favor of the defendant, but the Sixth Circuit reversed and remanded, holding that the plaintiff had established a prima facie case of sex discrimination, in part because two men committed “nearly identical” infractions of “comparable seriousness” and were not terminated like the plaintiff. The appellate court remanded the case for trial proceedings.



Simpson v. Vanderbilt University United States Court of Appeals for the Sixth Circuit (2017)

Employment discrimination, Gender discrimination

The plaintiff-appellant was a professor at the Vanderbilt University School of Medicine who solicited clients for her own private business, which the defendant, Vanderbilt University, considered to be a violation of its Conflict of Interest Policy, its By-Laws, and its Participation Agreement. The defendant terminated the plaintiff’s employment and she sued the defendant, alleging that her termination was due to gender discrimination in violation of Title VII of the Civil Rights Act and the Tennessee Human Rights Act. The district court granted summary judgment in favor of the defendant, holding that the plaintiff failed to identify a suitable male comparator and thus did not establish a prima facie case of discrimination. The Sixth Circuit affirmed, finding key differences between the plaintiff’s conduct and that of the male comparator she identified, including most notably the fact that the male comparator had disclosed his work outside of Vanderbilt University on his conflict of interest form.



Chairperson of the Immigration Selection Board v. E.F. and Another Supreme Court of Namibia (2001)

Gender discrimination, LGBTIQ

The respondent, a German national, was denied permanent residence in Namibia despite being in a committed relationship with a Namibian woman, residing in Namibia for many years, and having a highly skilled job in Namibia. The respondent claims that the only reason her application was denied is because she was a lesbian woman in a homosexual relationship. She therefore filed suit against the Immigration Selection Board (“ISB”), arguing that it had discriminated against her in denying her application. The lower court found in favor of the respondent and ordered the ISB to grant the respondent’s application. On appeal, the Supreme Court reversed the decision, finding that the respondent had not proven discrimination and that the ISB had wide discretion to deny applications. However, the Supreme Court judge explicitly stated: “I must emphasize in conclusion: Nothing in this judgment justifies discrimination against homosexuals as individuals, or deprive [sic] them of the protection of other provisions of the Namibian Constitution.”



Life Office of Namibia Ltd. (NamLife) v. Amakali Labour Court of Namibia (2014)

Employment discrimination, Gender discrimination, Sexual harassment

The respondent was charged with two counts of sexual harassment of female coworkers and with the verbal abuse of another female coworker. His employer (the “company”) found that he had violated the company’s policies and fired him. The respondent brought a claim for wrongful termination to the Office of the Labour Commissioner, and the dispute was referred to arbitration. The arbitrator found in favor of the respondent and ordered the company to reinstate him and pay him N$102,000 in lost wages. The company appealed the decision to the courts. The judge overturned the arbitrator’s decision, finding that he overlooked numerous relevant facts in making his conclusions, which “no reasonable court or tribunal court have reached.” The court held that the company acted appropriately in terminating the respondent’s employment because sexual harassment and discrimination in the workplace are serious offenses that create obstacles to equality in employment. 



Paschke v. Frans Supreme Court of Namibia (2015)

Gender discrimination, Property and inheritance rights

The respondent in this appeal is the biological daughter of the deceased. The respondent’s mother was not married to the deceased, and thus, the respondent was considered an “illegitimate child” under Namibian law. The appellant is the sister of the deceased and the respondent’s aunt. The deceased died intestate on May 30, 1991, and his estate was administered per Namibian law on intestate succession. Because the respondent was classified as an illegitimate child, she was not entitled to inherit from her father’s estate. The respondent challenged the constitutionality of this common-law rule, which the High Court had declared unconstitutional in July 2007. The Supreme Court confirmed the High Court’s finding.



Causa Nº 4.792/13 Ex Juzgado de Instrucción Formal Quinta Nominación (2014)

Domestic and intimate partner violence, Femicide, Gender discrimination, LGBTIQ

Defendant Mr. H.R.A was convicted of aggravated homicide based on his prior ties and relationship with the victim, Ms. N.A. (his partner), whom he murdered with a gun.  Mr. H.RA. was sentenced to life in prison pursuant to Law No. 26,791, Article 80, which provides that “[l]ife imprisonment or confinement shall be imposed upon a person that murders an ascendant, descendent, spouse or ex-spouse or a person that kills another with whom he or she maintains a relationship, irrespective of whether they maintained a joint household.”  The defendant challenged the constitutionality of the statute, arguing that it violates principles of equal protection because it does not afford (or it is not clear that the statute affords) equal protection to similarly situated homosexual couples.  In rejecting the defendant’s challenge, the court notes (1) Supreme Court precedent making clear that holding legislation unconstitutional is a grave act that should be taken as a last resort and when it is clear that the legislation is clearly unconstitutional, and (2) the legislation in question sought to introduce as aggravating circumstances factors that had previously been ignored, extending the definition of the concept of “family” to include different family realities.

El acusado, el Sr. H.R.A fue condenado por homicidio con acciones agravadas debido a sus vínculos anteriores y su relación con la víctima, la Sra. N.A. (su pareja), a quien asesinó con un arma. El Sr. H.RA. fue condenado a cadena perpetua con conformidad con la Ley Nº 26.791, Artículo 80, que dispone que “se impondrá la reclusión o el encarcelamiento a una persona que asesine a un ascendiente, descendiente, cónyuge o ex cónyuge o una persona que asesine” otro con quien él o ella mantiene una relación, independientemente de si mantuvieron un hogar conjunto ”. El acusado impugnó la constitucionalidad de la ley, argumentando que violaba los principios de protección igualitaria porque no permite (o no está claro si el el estatuto otorga igual protección a las parejas homosexuales en situación similar). Al rechazar la impugnación del acusado, el tribunal señala (1) el Tribunal Supremo precedente, dejando en claro que mantener la legislación inconstitucional es un acto grave que debe tomarse como último recurso y solamente cuando está claro que la legislación es claramente inconstitucional, y cuando (2) la legislación en cuestión buscaba introducir como circunstancias agravantes factores que anteriormente se habían ignorado, extendiendo la definición del concepto de "familia" para incluir diferentes realidades familiares.



González de Delgado and Others v. Universidad Nacional de Córdoba Corte Suprema de Justicia de la Nación (Supreme Court of Argentina) (2000)

Gender discrimination, International law

Parents of students enrolled at Colegio Nacional de Monserrat, a private all-male high school, filed suit to prevent the implementation of an order of the High Council of the National University of Córdoba (Consejo Superior de la Universidad Nacional de Córdoba) mandating that the high school admit female applicants. They argued that parents have the right to choose the type of education their children receive. The court of first instance found partially in favor of the parents, which was overturned by the appellate court.  Among other reasons, the Supreme Court upheld the appellate court ruling on the basis that (1) the High Council of the National University of Córdoba acted within its statutory authority, (2) the Argentine constitution does not guarantee the right to enroll children in schools limited to a specific gender, (3) mixed gender schools do not infringe on the rights of parents to elect the type of education their children receive, and (4) establishing a mixed gender school is the only alternative compatible with the constitutional principles of equality and the Convention on the Elimination of All Forms of Discrimination Against Women to which Argentina is a signatory.



De Sousa v. Administración de Parques Nacionales Camara Federal de San Martin (Federal Court of San Martin) (2018)

Employment discrimination, Gender discrimination, International law

On July 6, 2016, the plaintiff notified the defendant-employer of her pregnancy and intention to take maternity leave.  As of the date of notification, the plaintiff held a temporary executive position.  On July 11, 2016, the defendant notified the plaintiff that her temporary designation as an executive was of no effect.  The defendant subsequently provided a maternity compensation package beginning on the date her temporary designation was revoked, but it did not reflect her higher earnings as a temporary executive.  The court of first instance granted the plaintiff maternity leave at a salary corresponding (1) to her executive status as from the date she provided notice until 30 days before the probable date of birth and (2) to her non-executive status during the 100 days following the birth of the plaintiff’s child.  On appeal, the plaintiff challenged the trial court’s ruling denying her executive pay for the 100-day period following the birth of her child, while the defendant challenged the trial court’s ruling granting the plaintiff executive pay from the date of notice of her pregnancy because of the subsequent cancellation of the plaintiff’s executive status on July 11, 2016.  The appellate court found in favor of the plaintiff, noting that (1) the Argentine Constitution provides for the full protection of women during pregnancy and breastfeeding, (2) the International Treaty for the Elimination of all forms of Discrimination against Women (to which Argentina is a signatory) requires the adoption of laws that prevent discrimination based on marriage or pregnancy, and (3) the failure to award the plaintiff maternity compensation corresponding to her executive status would result in a failure to ensure employment stability.  The appellate court ruled against the plaintiff’s request to return to her executive position following maternity leave on the basis that the designation was temporary in nature and that laws protecting women during maternity leave cannot alter the fundamental nature of the relationship prior to maternity.



Sisnero, et al. v. Taldelva SRL, et al. Corta Suprema de Justicia de la Nación (2014)

Employment discrimination, Gender discrimination

The plaintiffs, Mirtha Graciela Sisnero and the Women’s Foundation (Fundación Entre Mujeres), filed suit against the Automotive State Transportation Company (Sociedad Anònoma del Estado del Transporte Automotor), the Metropolitan Transportation Authority (Autoridad Metropolitana de Transporte), and seven companies that provided public transportation services in the city of Salta.  The plainiffs alleged, citing Ms. Sisnero’s failure to obtain a bus driver position despite having met the job requirements, that defendants refuse to hire female drivers in violation of equal rights and anti-discrimination laws. The plaintiffs demanded that (1) the defendants cease to discriminate based on gender, (2) Ms. Sisnero be hired as a bus driver, and (3) the defendants set aside a certain number of positions to be filled exclusively by women until such time as the composition of drivers reflected gender integration.  The court of first instance found in favor of the plaintiffs, mandating that 30% of openings for bus drivers be set aside exclusively for women.  The appellate court reversed the trial court’s decision based on the plaintiff’s failure to prove that the defendants failed to hire Ms. Sisnero solely because she was female, further noting that the defendants’ failure to accept Ms. Sisnero’s multiple applications for employment were insufficient to sustain a claim of discrimination because the defendants were under no constitutional obligation to hire her.  The Supreme Court reversed the appellate court’s decision, noting that the appellate court failed to adequately consider the evidence provided by the plaintiffs. The lower court should have considered (1) the fact that the defendants had not hired any female bus drivers after receiving complaints from Ms. Sisnero and (2) discriminatory statements made by representatives of the defendants (e.g., “women should focus on demonstrating their culinary abilities”). The Supreme Court further noted that once the claimant has proven the existence of acts that are allegedly discriminatory, it is the defendant’s burden to disprove the existence of the alleged discrimination.   



Sentenza n. 6575/2016 Corte di Cassazione: Sezione Lavoro (Supreme Court: Labor Section) (2016)

Employment discrimination, Gender discrimination

An employer fired a woman after learning of her intention to start an assisted reproduction process. The local court and the court of appeal stated that such dismissal was substantially due to gender discrimination against the employee who wanted to start the assisted reproduction process. Such decisions were challenged by the employer who argued that the dismissal of the employee was not connected to any gender discrimination but rather to the absences for illness that would have affected the efficient management of the work. The Italian Supreme Court confirmed that the dismissal was null and void due to a gender discrimination, irrespective of the fact that the assisted reproduction process had been commenced or not and sentenced the employer re-hire the employee and to pay her the relevant salaries as if she had never been fired.



Sentenza n. 937/2017 La Corte d'Appello di Torino: Sezione Lavoro (Court of Appeal of Turin: Labor Section) (2017)

Employment discrimination, Gender discrimination

The Court of Appeal of Turin upheld the lower court’s judgment deeming a clause of a collective agreement negotiated at the enterprise level to be discriminatory because it infringed on Articles 3 and 37 of the Constitution, Article 25, para 2bis, of Decree No. 198/2006 and Article 3 of Decree No. 151/2001. Under the relevant clause the “real presence at work” was as an eligibility criterion to receive an additional remuneration, it being understood that any family-related leave, including any compulsory maternity leave, parental leave. and/or leave for illness, could affect the employees’ level of performance in that respect. The Court maintained that even though the criterion was formally neutral, it resulted in an indirect pay discrimination since female workers usually take more family-related leave than male workers. Moreover, during the trial, the company failed to provide a permissible justification regarding the requirement of “real presence at work.” Therefore, the employer was ordered to (1) cease the discrimination by computing leave as actual time worked for the purposes of achieving the real presence requirement and becoming eligible for the  additional remuneration, (2) to pay the additional remuneration incentive to the plaintiffs, and (3) to enhance a plan to remove the discrimination by avoiding the inclusion of the above criterion in any future collective bargaining at the enterprise level. The latter was promoted by the intervention of the Regional Equality Adviser as a case of collective discrimination.



Decision No. 265/Pid.Sus/2015/PN Btm District Court of Batam (2015)

Domestic and intimate partner violence, Employment discrimination, Gender discrimination

The Defendant regularly verbally abused his wife (the victim) shouting at her, insulting and cursing her, demeaning her status and causing her deep embarrassment at in front of other employees. The Defendant also joked that he should just divorce the victim and get a new younger wife instead. These verbal abuses were not isolated incidents. The court viewed them as a form of psychological abuse which resulted in psychological suffering, a deep sense of helplessness, and the victim experiencing fear, losing confidence, and losing the will to act. The court found that the Defendant was guilty of domestic violence under Article 45 of Law No. 23 2004 and sentenced the Defendant to seven months imprisonment.



Gandhi v. Perak, et al. Federal Court of Malaysia (2018)

Divorce and dissolution of marriage, Gender discrimination, International law

The appellant, Pathmanathan (husband), and the respondent, Indira Gandhi (wife), were married and had three children. In March 2009, the husband converted to Islam. In April 2009, the husband obtained certificates of conversion to Islam issued by the Pengarah Jabatan Agama Islam Perak over all three children as well as an ex-parte interim custody order over the children. In September 2009, he obtained a permanent custody order from the Syariah Court. In 2013 and 2014, the mother obtained orders from the High Court annulling the unilateral conversions and the Syariah Court’s custody order, inter alia, on the grounds that vesting equal rights to both parents to decide on a minor child’s religious upbringing and religion would be in accordance with international human rights principles, specifically the convention on the Rights of the Child (CRC) and CEDAW.  The first appeal in this case concerned the validity of the conversion of the children to Islam. The majority in the Court of Appeal allowed the husband’s appeal and held that the Syariah Court had exclusive jurisdiction to determine the validity of the children’s conversion to Islam. Dealing with the issue of whether the conversions violate international norms, the Court noted that international treaties do not form part of domestic law unless those provisions have been incorporated into domestic law and that the High Court’s approach of following very closely the standard of international norms in interpreting the Federal Constitution is not in tandem with the accepted principles of constitutional interpretation. Accordingly, the Court of Appeal did not declare that the conversions of the children were invalid. The Federal Court overturned the lower courts’ decisions on appeal, reasoning that the children had not met the statutory requirements of conversion. Specifically, the Court found that the children did not state the two clauses of the Affirmation of Faith in Arabic as the Perak Enactment requires for a valid conversion to Islam.  In addition, the Federal Court held that mothers have parental rights equal to fathers, so the permission of both parents is required for a child’s religious conversion.



Barclay v. Digen Supreme Court of Liberia (2011)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Upon divorce, the husband claimed he was entitled to a property acquired during the marriage because a married woman cannot acquire property in her maiden name solely for herself. The court held that: (a) there is no legal significance of a woman choosing to use her husband’s surname; it does not affect the right of a woman to own property while married; (b) a woman can purchase property in her maiden name during marriage; (c) unless freely consented to, property which is owned solely by a husband’s wife cannot be controlled by her spouse.



Application by Tuğba Arslan Constitutional Court (2014)

Gender discrimination

A judge removed Tuğba Arslan, a member of the Ankara Bar Association, from a hearing because Arslan was wearing a headscarf while representing a party. The judge postponed the hearing and ordered alternate counsel in Arslan’s place. Turkish Bar Association rules prohibit attorneys from wearing headscarves during hearings. Arslan appealed to the Constitutional Court, claiming that because no legislation prohibited headscarves during hearings, her rights to freedom of religion and equal treatment had been violated. The Court agreed, holding that women may wear headscarves in accordance with Islam and the practice is common in Islamic society; therefore, the Arslan’s religious right was violated. Further, the Court stated that some limitations could be placed on rights but that such limitations, among other requirements, must be prescribed by law. Moreover, the Court reasoned that Arslan’s removal violated the non-discrimination principle, since on the one hand, women attorneys who do not wear headscarves are permitted to attend hearings while Arslan, on the other hand, is not.



Application by Gülsim Genç Constitutional Court (2013)

Gender discrimination, International law

Gülsim Genç petitioned the court of first instance to allow her to use her maiden name only, which the Turkish Civil Code prohibits. The court had previously filed an unsuccessful application to the Constitutional Court to annul this provision and, therefore, dismissed Genç’s petition accordingly. Genç appealed to the court of appeals, which affirmed the court of first instance’s dismissal. Genç then filed an application to the Court. The Court referred to Article 17 of Turkish Constitution, which reads as follows: “every person has the right to preserve and improve one’s existence, both materially and spiritually.” Genç asserted that her surname formed part of this spiritual existence. The Court acknowledged that rights and freedoms may be limited under certain conditions, and when a limitation is placed on those rights, the Court should assess whether such limitation is permitted by law. Under Turkish law, if a contradiction exists between Turkish codes and international agreements on fundamental rights and freedoms, such international agreement shall prevail and apply to the case at hand. The European Court of Human Rights’ rulings indicate that forbidding women to use their maiden name violates the European Convention of Human Rights’ non-discrimination article. The Court remanded the case to the court of first instance for proceedings consistent with the Convention to the extent that the Turkish code violates the Convention. The Court repeatedly referenced the application by Sevim Akat Eşki, which is an indication that similar future rulings may result.



Application by Sevim Akat Eşki Constitutional Court (2013)

Gender discrimination, International law

The applicant petitioned the court of first instance to allow her to use her maiden name only, which the Turkish Civil Code prohibits. The court had previously filed an unsuccessful application to the Constitutional Court to annul this provision and, therefore, dismissed Eşki’s petition accordingly. Eşki then filed an individual application to the Court asserting discrimination and other violations. The Court referred to Article 17 of Turkish Constitution, which reads as follows: “every person has the right to preserve and improve one’s existence, both materially and spiritually.” Eşki asserted that her surname formed part of this spiritual existence. The Court acknowledged that rights and freedoms may be limited under certain conditions, and when a limitation is placed on those rights, the Court should assess whether such limitation is permitted by law. Under Turkish law, if a contradiction exists between Turkish codes and international agreements on fundamental rights and freedoms, such international agreement shall prevail and apply to the case at hand. The European Court of Human Rights’ rulings indicate that forbidding women to use their maiden name violates the European Convention of Human Rights’ non-discrimination article. The Court remanded the case to the court of first instance for proceedings consistent with the Convention to the extent that the Turkish code violates the Convention.



Applications by Various Courts of First Instance to Annul a Certain Civil Law Constitutional Court (2011)

Gender discrimination

The Turkish Civil Code permits a married woman to use her maiden name only if the maiden name is used in conjunction with her husband’s surname. Three applicants, each in separate petitions to courts of first instance, sought to use their maiden names only. The courts of first instance applied to the Constitutional Court, which denied the request because the legislature did not abuse its discretion in determining that the husband’s surname should be the family surname, and this did not violate the Constitution’s equality principle. The Court reasoned that surnames are important for identifying not only the individual, but also the family and ancestry. Consequently, the law requiring women to take their husbands’ surnames benefits public welfare and order. The Court also reasoned that having (the husband’s) surname is a personal right that cannot be renounced or alienated. Moreover, the fact that the surname is an individual right does not mean that the legislature cannot act to ensure public welfare and order. The Constitution states that the family is the foundation of the Turkish society and requires the State to promulgate necessary regulations to preserve the family.



Application by Court of First Instance to Annul the Surname Act in Part Constitutional Court (2012)

Divorce and dissolution of marriage, Gender discrimination

In 2001, a mother divorced her husband, who was her child’s father, and the court of first instance granted custody to the mother, who then filed a lawsuit to change the child’s name and surname because both names were causing the child problems in his social environment—his friends were making fun of him. The Surname Act provides that the husband, as the leader of the marriage union, shall choose the child’s surname, even after divorce. The court of first instance held that this provision violated the Constitution’s equality principle and requested that the Constitutional Court annul the provision.  The Constitutional Court unanimously agreed, holding that the Constitution, Article 41, establishes the equality between husband and wife; moreover, the right to choose a surname for the child was an element of custody. The Court noted that the Turkish Civil Code, Number 4721, had introduced material changes in husband–wife equality, and more importantly, articles that did not comply with the equality principle had been excluded from the law, such as the husband being the leader of the marriage union. The Court referenced the European Court of Human Rights, which held that any differing treatment based on gender, except for valid reasons, breaches the non-discrimination principle. According to the Constitutional Court, the wife and the husband were in the same position regarding their rights and obligations, both during marriage and in divorce; therefore, granting the right to choose the child’s surname exclusively to the father would have violated the Constitution’s equality principle.



L.W.L. v. Y.T. Cheng, Inc. District Court of the Hong Kong Special Administrative Region (2006)

Employment discrimination, Gender discrimination

The Plaintiff was employed as secretary of the Director by the Defendant in 2001. In February 2002, the Plaintiff suffered a threatened miscarriage, and was admitted to the hospital several times thereafter. From June to August 2012, she took sick leave frequently for treatment of her pregnancy complications.  During that period, a permanent secretary was hired by the Defendant.  The Plaintiff returned to work after expiry of her maternity leave in November 2012 as agreed with the Defendant, but was moved to a new work station which was not properly equipped, and was not given her original duties.  Shortly after she resumed her work after maternity leave, she was dismissed by the Defendant. She sued the Defendant for her dismissal on the grounds of discrimination due to pregnancy, family status and victimization.  The Court applied the “but for” and “less favorable treatment” test, and held that the burden is on the Plaintiff to prove discrimination on a balance of probabilities – once the Plaintiff can show that a possibility of discrimination can be inferred from the primary facts, the Court will look to the employer for an explanation, with which or if such explanation is not enough, the Court will infer the existence of discrimination.  Based on the facts and evidence in this case, the Court found that the Plaintiff has established the primary facts on her claims on the grounds of discrimination due to pregnancy and family status, and found that the Defendant failed to establish the unsatisfactory performance of the Plaintiff and there were no significant enough reasons for the Defendant to dismiss the Plaintiff.  On a balance of probabilities, the Court concluded that the Plaintiff was dismissed because of her pregnancy and family status, and held the Defendant liable.  Damages for injury to feelings and loss of income were awarded to the Plaintiff.



Tsang v. Cathay Pacific Airways Ltd. District Court of the Hong Kong Special Administrative Region (2001)

Employment discrimination, Gender discrimination

The plaintiff, Helen Tsang, was employed by Cathay Pacific Airways Ltd. (“Cathay”) as a flight attendant in 1979. According to the retirement policy at the time of her employment contract, the retirement age for a female attendant was 40, while the retirement age for a male attendant was 55.  Ms. Tsang was required to retire in 1992 when she reached 40. Cathay offered consecutive one year extensions of her employment thereafter till 1997 when she reached the age of 45. During that period, Cathay adopted a new retirement policy in 1993, which changed the retirement age of both the female and male cabin crew to the age of 45 and provided that female employees already on extension may choose to further extend the employment with Cathay till the age of 45 if Cathay agreed so. After 1997 (when Ms. Tsang was 45), Cathay did not offer Ms. Tsang any extension of her employment. Ms. Tsang sued Cathay alleging that the retirement policy implemented by Cathay was discriminatory and that she was discriminated on the ground of her sex. The court held that it constituted direct sex discrimination against Ms. Tsang because a male employee in the similar situation would be in a much better position than Ms. Tsang as he would have been entitled to remain employed with Cathay until the age of 55, or would at least have had the option to retire at 45 if he chose so and would have received more favorable benefits than Ms. Tsang had. In reaching such conclusion, the court upheld the view that the employment contract does not form the basis of a discriminatory claim and the discrimination is continuing and actionable if the discriminatory policy has been in place and implemented during subsequent extension(s) of employment.



Waliyah v. Yip Hoi Sun Terence District Court of the Hong Kong Special Administrative Region (2017)

Employment discrimination, Gender discrimination

The complainant, an Indonesian domestic helper, was asked by her employer’s wife to urinate for a home-pregnancy test. After the result showed positive and was subsequently confirmed by a physician, the employer terminated her employment by a month’s notice. Ultimately, the complainant was required to move out of the couple’s home before the notice period ran out. She sued the couple for damages based on, among others, sex and pregnancy discrimination. The court held the couple liable for the act of sex discrimination against the complainant by asking her to take the pregnancy test, despite the fact that she voluntarily participated in the test and wanted to know the result. The court took the view that whether the employee had consented or voluntarily cooperated to take the pregnancy test is not determinative as to deciding the nature of the employer’s request to take the pregnancy test, and that the lack of intent or motive to discriminate by the employer is a factor to assessment of damages but would not bar an act from being determined as discriminatory. The court held that the employer has no right to know about a female employee’s pregnancy status, which is a private matter of the employee. The court determined that requesting a female employee to take a pregnancy test without giving her a choice not to disclose the result to the employer constitutes a “less favorable treatment” to that employee because of her gender, for the reason that a male employee would not be requested to take such a test or reveal such private information to his employer.



P.O. v. Board of Trustees, A.F., et al. Industrial Court at Nairobi (2014)

Employment discrimination, Gender discrimination, Gender-based violence in general, International law, Sexual harassment

The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip.  Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her.  He booked a single hotel room, while the claimant believed she would have her own room.  As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference.  Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference.  Her salary for May was unpaid.  Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her.  The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.”  The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000.  This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law.  In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace.  The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.



De Lange v. Presiding Bishop of the Methodist Church of South Africa for the Time Being Constitutional Court of South Africa (2015)

Gender discrimination, LGBTIQ

After a Methodist Church minister (applicant) announced to her congregation her intention to marry her same-sex partner, the Methodist Church (respondent) suspended and subsequently discontinued her role as an ordained minister in early 2010. In March 2010, the applicant referred the matter to arbitration according to the Laws and Discipline of the Church. The parties could not agree on the applicant’s procedural rights and the arbitration convener proceeded with the process as provided by the Laws and Discipline of the Church. On her behalf, the convener then entered into a final agreement with the Church in May 2011. In 2012, the applicant approached the Western Cape High Court, Cape Town seeking an order to set aside the arbitration agreement in terms of the Arbitration Act. She contended that she was unfairly discriminated against on the basis of her sexual orientation. The High Court held that the applicant had not shown good cause to set aside the arbitration agreement. She then appealed to the Supreme Court of Appeal. The majority judgment of that Court agreed with the finding of the High Court. The applicant sought leave to appeal to the Constitutional Court. In a unanimous judgment, the Constitutional Court made four findings. First, the applicant had not shown good cause to set aside the arbitration agreement. Because the issue related to interpretation of religious doctrine, arbitration would be the appropriate forum. Second, since the applicant had unequivocally disavowed her unfair discrimination claim before the High Court, she was not free to raise the claim for the first time on appeal. Third, pursuant to the principle of constitutional subsidiarity, the applicant should have first brought her unfair discrimination claim to the Equality Court. Finally, the applicant failed to file a notice in terms of the Uniform Rules of the High Court, an omission that deprived other interested parties including religious communities of the opportunity to intervene as parties to the dispute or seek admission as amicus curiae in the High Court. The Court accordingly dismissed the appeal. 



National Coalition for Gay and Lesbian Equality v. Minister of Justice Constitutional Court of South Africa (1998)

Gender discrimination, LGBTIQ

The case concerned a referral for confirmation to the Constitutional Court of an order made by the Witwatersrand High Court. The referral sought to affirm that the following laws are unconstitutional and invalid (a) the common law offence of sodomy, and (b) the inclusion of sodomy in schedules to, inter alia, the Criminal Procedure Act 51 of 1977, which prohibits sexual conduct between men in certain circumstances. Although technically the Constitutional Court only had to decide on the constitutionality of the inclusion of sodomy in the schedules and of the section of the Sexual Offences Act, it could not do so without also considering the constitutionality of sodomy as a common law offence. The Constitutional Court found that the offences, all aimed at prohibiting sexual intimacy between gay men, violated the right to equality by unfairly discriminating against gay men on the basis of sexual orientation. Such discrimination is presumed to be unfair since the Constitution expressly includes sexual orientation as a prohibited ground of discrimination.



Mgolozeli v. Gauteng Department of Finance Labour Court of South Africa (2014)

Employment discrimination, Gender discrimination

The applicant, a male, applied for a senior managerial position previously occupied by a woman. After undergoing a psychometric assessment, he was recommended for appointment. The recommendation was turned down “due to the gender imbalance at SMS level”. The applicant claimed that he had been unfairly discriminated against on the basis of his sex because the target, set by the Gauteng Provincial Legislature, did not comply with the provisions of the Employment Equity Act (EEA), 55 of 1998. The respondent contended that, although it had not adopted an equity plan, it had set itself a target of 50% females in senior management positions. The Court noted that when the second respondent took the decision not to appoint the applicant, there was great confusion regarding the actual gender balance at the senior management level. However, the Court was prepared to accept that, at the time, females filled only 29% senior management posts. The EEA requires that equity plans must provide objectives for each year, their duration, and procedures for evaluating their implementation. The Court noted that, in SA Police Service v Solidarity obo Barnard (Police and Prisons Civil Rights Union as amicus curiae [2014] 11 BLLR 1025 (CC)), the Constitutional Court had confirmed that competent courts must ensure that validly adopted equity plans are applied lawfully. Apart from the fact that the respondent had no plan, it had no mechanism to track the levels of gender representation. The second respondent had applied the target without considering the panel’s reasons for its recommendation. Affirmative action had been applied ad hoc, in a haphazard, arbitrary, and random manner. The responsible official had applied a quota system and raised an absolute barrier, both of which were impermissible. The affirmative action measure applied by the respondents conflicted with both the Constitution and the EEA. Accordingly, the measure had unfairly discriminated against the applicant. The respondents were directed to appoint the applicant to the post concerned and pay him compensation equal to the difference between the salary he had earned and the salary he should have earned, with retrospective effect.



Ekhamanzi Springs Ltd. v. Mnomiya Labor Appeal Court of South Africa (2014)

Employment discrimination, Gender discrimination

The respondent was employed by the appellant to bottle Aquelle spring water. The appellant’s plant was located on property belonging to a religious mission, and to gain access to the workplace, the appellant’s employees had to cross the mission’s property. The mission’s security guards were instructed to bar entry to any persons who did not comply with its code of conduct; one provision, for example, prohibited “amorous relationships between any two persons outside of marriage”. The respondent and a colleague were denied access because they became pregnant outside of marriage. Consequently, the respondent and her colleague were not able to access the workplace, as they were refused access to the mission’s property. They were subsequently fired. The court ruled that the dismissal of the respondent employee was automatically unfair because she had been dismissed for her pregnancy. The court noted that all persons have a constitutional right to equality. Discriminatory dismissals, such as this one, are accordingly automatically unfair and higher compensation is allowed in such cases. Employers are obliged to avoid discriminating against employees directly or indirectly  ̶  protection against being discriminated against on the ground of pregnancy is not a preserve of married women. An agreement that denies pregnant employees access to the workplace is accordingly prima facie unenforceable unless it can be justified on grounds consistent with constitutional norms. The mission’s code of conduct interfered with the employment relationship between the appellant and its employees and created a situation in which breaches could lead to dismissal. Such provisions blurred the line between the appellant’s terms and conditions of employment and the mission’s code.  That the employee was not a party to the mission’s code proved decisive. As lessee, the appellant had legal remedies to compel the mission to allow full use and enjoyment of the leased property. The appellant’s faint plea of operational necessity could not serve as a defense because it had failed to exercise its rights as lessee to protect its pregnant employees. The employee had tendered her services, and the appellant’s refusal to accept the tender constituted a breach of contract. The court further held that the appellant’s acquiescence in the mission’s discriminatory practice of barring unwed pregnant women from the leased premises violated the appellant’s constitutional duty to treat its employees fairly and was a breach of its common law duty to accept the employees into service. The court, therefore, confirmed that the employee had been dismissed and that her dismissal was automatically unfair. The court also confirmed the remedy of 12 months’ compensation.



South African Police Service v. Barnard Constitutional Court of South Africa (2014)

Employment discrimination, Gender discrimination

The South African Police Service (“SAPS”) had adopted the Employment Equity Plan (“EEP”), which sets numerical goals to produce gender and racial diversity. The appellant, Ms. Barnard, applied twice for a position in the National Evaluation Service of the SAPS in 2005. Despite being shortlisted, interviewed, and recommended as the best-suited candidate, she did not get the position on either occasion. This case concerns her second attempt, where the National Commissioner did not appoint Ms. Barnard on the grounds that it would not enhance racial representation at that salary level and that it was not necessary to fill the vacancy immediately because the post was not critical. While the Labor Court found that SAPS had unfairly discriminated against the appellant, the Labor Appeal Court found in favor of SAPS. On further appeal, the Supreme Court of Appeal (“SCA”) reversed the Labor Appeal Court’s decision and held that Ms. Barnard had been the victim of unfair discrimination on the basis of race, in violation of Section 9(3) of the Constitution and Section 6(1) of the Employment Equity Act (the Act). The Constitutional Court granted SAPS leave to appeal and unanimously reversed the SCA’s ruling in favor of Ms. Barnard. As the Court noted, the SCA found that SAPS had failed to rebut the presumption that the discrimination against Ms. Barnard was unfair. But, since the EEP was a valid affirmative action measure, the issue was not whether the Plan could overcome such presumption, but whether the decision the National Commissioner made under it was open to challenge. The Court found that the Commissioner properly exercised his discretion. Appointing Ms. Barnard would have aggravated the overrepresentation of white women at that salary level. And, the decision did not bar Ms. Barnard from future promotions.



2007 (Gyo-Tsu) No. 164 Supreme Court of Japan (2008)

Gender discrimination

The issue before the Supreme Court was whether a part of a provision in the Japanese Nationality Act conformed with Article 14.1 of the Japanese Constitution, which prohibits discrimination based on race, belief, sex, social status, or lineage.  The provision at issue does not grant Japanese nationality to a child born out of wedlock to a non-Japanese mother and a Japanese father––even if the father formally declares and recognizes the father-child relationship––unless the child obtains legal recognition as a child of the man and the woman through their marriage.  The Supreme Court first noted that the Japanese Nationality Act does not grant Japanese nationality to a child in the aforementioned situation although it recognizes a parent-child relationship and grants Japanese nationality to a child born out of wedlock if (1) the child’s mother was Japanese or (2) the child’s Japanese father filed for the recognition of the father-child relationship before the child’s birth.  The Court found that, while creating this distinction was reasonable at the time of the legislation, such a distinction amounted to unjustifiable discrimination in present day Japan.  Thus, the Supreme Court found that the part of the provision at issue was unconstitutional and invalid.  In its reasoning, the majority opinion stated, inter alia, “under the Japanese Nationality Act that adopts the principle of jus sanguinis, maintaining a distinction in terms of eligibility to have Japanese nationality based on whether the Japanese parent is the mother or the father of the child at issue does not accord with the basic principle of equality of the sexes.”



2013 (Ju) No. 233 Supreme Court of Japan (2014)

Divorce and dissolution of marriage, Gender discrimination

A mother, on behalf of her infant child, filed a lawsuit for a declaratory judgment for absence of parent-child relationship with the appellant––a man to whom the mother was married when the child was born.  The request for the judgment was based on the fact that a DNA test result showed that, with 99.99 percent probability, the infant was a child of a different man, with whom the mother was having an affair.  By the time of the trial, the wife and the child had left the appellant to live with the child’s biological father.  Article 772 of the Japanese Civil Code, in general, presumes a man to be the father of a child if the man is married to the mother of the child at the time of conception.  While Article 774 allows the husband to file a proceeding to rebut such a presumption, the wife or the child does not have standing to initiate such a proceeding.  The Supreme Court, stressing the importance of maintaining legal stability pertaining to familial status, found that the facts that (i) there was scientific evidence that clearly denied a biological father-child relationship and that (ii) the child was currently raised––without any problem––by the biological father does not negate the presumption of the father-child relationship under Article 772 of Japanese Civil Code, as the importance of maintaining the legal stability pertaining to familial status would not be undermined by such factors.  Therefore, the Supreme Court found that there was no legal ground to deliver the requested declaratory judgment.



Resolution U.No. 137/2013 Constitutional Court (2014)

Abortion and reproductive health rights, Gender discrimination, International law

A legal scholar and four non-governmental organizations filed an initiative with the Constitutional Court of Macedonia for the commencement of a procedure to review the constitutionality of the Law on Termination of Pregnancy ((“Official Gazette of the Republic of Macedonia”, nos.87/2013, 164/2013 and 144/2014”) (the “LTP”) and its compatibility with international law, on the basis that the LTP created “a possibility of state interference into the right of choice and free decision-making of the women (which was contrary to Article 41 paragraph 1 and Article 118 of the Constitution of the Republic of Macedonia)”. Further, the applicants stated that the LTP contravenes Articles 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution, which provides that female citizens had sovereignty over themselves, their life, physical integrity and health. The applicants pointed out, inter alia, that the requirement to submit a written request, mandatory counselling, and waiting period were incompatible with the constitutionally guaranteed freedom of choice regarding childbirth. In addition, given that those provisions in the LTP did not exist for any other medical intervention, they represented a discrimination against women. All but one of the judges stated that they do not consider the LTP to be problematic and fully rejected the initiative. 



Decision U.No. 104/2016 Constitutional Court (2016)

Employment discrimination, Gender discrimination

A 65-year-old woman working in a state institution requested to continue her employment for two more years was denied on the basis that, according to Paragraphs 2 and 4 of Article 104 of the Labour Law of Macedonia (the “Contested Provisions”), the age limit to which women can work is 65 years of age, while this limit for men is 67 years of age. The Union-National Council for Gender Equality and the Macedonian Women’s Lobby initiated proceedings in the Constitutional Court of Macedonia (the “Court”) challenging the constitutionality of the Contested Provisions on grounds that they contravene Articles 9 and 32 of the Constitution. The Court held that the Contested Provisions are not in accordance with the established constitutional principle of equality of citizens on grounds of sex per Article 9 of the Constitution, on the basis that the Contest Provisions impose termination of employment of female employees under different conditions than male employees. The Contested Provisions are thereby repealed.



Applicants McEwan, Clarke, et al. v. Attorney General High Court of the Supreme Court of Judicature (2013)

Gender discrimination, LGBTIQ

On February 6, 2009, four transgender individuals (A, B, C, D) identifying as female were arrested and charged with both Loitering and Wearing Female Attire.  The police detained the Applicants for the entire weekend without explaining the charges against them.  Wearing Female Attire is prohibited under Section 153(1)(XLV11) of the Summary Jurisdiction (Offences) Act, chapter 8:02.  At the hearing on February 9, 2009, the Chief Magistrate commented that the Applicants were confused about their sexuality and told them they were men, not women, and needed to give their lives to Jesus Christ.  The Applicants, who were all unrepresented at the time, pleaded guilty to the charge of Wearing Female Attire.  Applicants A, B and D were fined $7,500, and Applicant C was fined $19,500 (Guyanese dollars).  The loitering charges were eventually dismissed.  The Applicants contacted the Society Against Sexual Orientation Discrimination (SASOD), the Equal Rights Trust’s Guyanese partner, about the case.  SASOD agreed to represent Applicants and filed a Notice of Motion challenging the Magistrate’s Court decision and seeking redress.  The Applicants argued that the police violated the Constitution because the officers failed to inform them of their arrest and did not permit the Applicants to retain counsel.  They also argued that Section 153 (1) (XLV11) of the Summary Jurisdiction (Offences) Act 1893 is: (1) vague and of uncertain scope; (2) irrational and discriminatory on the ground of sex; and (3) a continuing threat to their right to protection against discrimination on the ground of sex and gender under the Constitution.  Applicants further argued that, by instructing the Applicants to attend Church and give their lives to Jesus Christ, the Chief Magistrate discriminated against them on the basis of religion, which violated a fundamental norm of the Co-operative of the Republic of Guyana as a secular state in contravention to the Constitution.  The Court upheld the Applicants’ claims in relation to their fundamental right to be informed of the reason for their arrest under Article 139 of the Constitution, but rejected all of their other claims.  The Court found that the prohibition of cross-dressing for an improper purpose was not unconstitutional gender or sex discrimination, impermissibly vague, or undemocratic.  The Court also struck SASOD’s application in full, finding that SASOD did not have standing to be an applicant in the case.



Institutional Violence Against Women (Docket XXVII.1o.3 C (10a.)) Mexico Supreme Court (2016)

Gender discrimination, Gender-based violence in general, International law

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 issued may be persuasive in similar cases arising in other federal courts. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belém do Pará,” states that violence against women is an offense against human dignity, which constitutes a violation of fundamental rights. In addition, Article 18 of the General Law for Women’s Access to a Life Free of Violence establishes that any public servant’s conduct, whether by act or omission, which is discriminatory or which impairs the woman’s human rights is considered institutional violence. Therefore, if a governmental authority deprives a woman of any right in the context of family law, the court shall acknowledge the authority’s intention to discriminate or impair the plaintiff’s human rights in its ruling. Further, any court ruling seeking to restore the woman’s rights shall identify the authority responsible for the violation. (Amparo Directo: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=462/04620000174646210006004.d...)

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, los criterios emitidos pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém do Pará", afirma que violencia contra la mujer es un delito contra la dignidad humana y constituye una violación de los derechos fundamentales. Además, el artículo 18 de la Ley General para el Acceso de las Mujeres a una Vida Libre de Violencia establece que la conducta de cualquier servidor público, ya sea por acto u omisión, que sea discriminatoria o que perjudique los derechos humanos de la mujer se considera violencia institucional. Por lo tanto, si una autoridad gubernamental priva a una mujer de cualquier derecho en el contexto del derecho de familia, el tribunal reconocerá la intención de la autoridad de discriminar o menoscabar los derechos humanos del demandante en su decisión. Además, cualquier fallo judicial que busque restaurar los derechos de la mujer deberá identificar a la autoridad responsable de la violación.



Femicide (Docket 1a/LIV/2016 (10a.)) First Collegiate Tribunal of the Twenty-Seventh Circuit (2016)

Femicide, Gender discrimination

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 issued may be persuasive in similar cases arising in other federal courts. The Mexican Supreme Court has determined that in order to determine whether a law is discriminatory a court must evaluate the following: (i) whether the purpose of such law is objective and not contrary to the Constitution; (ii) the means; (iii) that the purpose of the law and the means are proportional. The Mexican Supreme Court has determined that the state legislator can develop any mechanism to protect human rights. Therefore, given that femicide, as a felony, is designed to protect a disadvantaged segment of the population, any special treatment inherent to this felony cannot be interpreted as contrary to the human right to equality.

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes para todos los casos resueltos por dicho tribunal. Además, los criterios emitidos pueden ser persuasivos en casos similares que surjan en otros tribunales federales. El Tribunal Supremo de México ha determinado que para determinar si una ley es discriminatoria, un tribunal debe evaluar lo siguiente: (i) si el propósito de dicha ley es objetivo y no contrario a la Constitución; (ii) los medios para enforzarla; (iii) que el propósito de la ley y los medios sean proporcionales. La Corte Suprema de México ha determinado que el legislador estatal puede desarrollar cualquier mecanismo para proteger los derechos humanos. Por lo tanto, dado que el femicidio, como delito grave, está diseñado para proteger a un segmento desfavorecido de la población, cualquier tratamiento especial inherente a este delito grave no puede interpretarse como contrario al derecho humano a la igualdad.



Access to Justice in Equal Conditions (Docket 1a.J. 22.2016 (10a.)) Mexico Supreme Court (2016)

Gender discrimination

This jurisprudential thesis is a relevant example of case law, as the criteria issued by the Mexican Supreme Court is binding on all courts in the country. Every court shall rule based on a gender perspective. Therefore there should be a test to determine whether there is a gender violence case before the court. This test shall be performed by the court regardless of whether a party makes such a petition. The court shall take into consideration the following points: (i) if the particular case involves gender violence, taking into account the facts and the evidence, excluding any stereotype that the court may have; (ii) in the event that the evidence is insufficient to determine whether the case involves gender violence, the court shall request more evidence to make a determination; (iii) if the court determines that the case involves gender violence, it shall apply the relevant law to the particular case and issue a ruling; (iv) human rights shall be taken into consideration at all times during the process and; (v) the use of inclusive language to ensure access to justice that is free of gender-based stereotypes.

Esta tesis jurisprudencial es un ejemplo relevante de jurisprudencia, ya que los criterios emitidos por el Tribunal Supremo de México son vinculantes para todos los tribunales del país. Cada tribunal decidirá con una perspectiva de género. Por lo tanto, debe haber una prueba para determinar si hay un caso de violencia de género ante el tribunal. Esta prueba será realizada por el tribunal, independientemente de si una parte hace tal petición. El tribunal deberá tener en cuenta los siguientes puntos: (i) si el caso en particular involucra violencia de género, teniendo en cuenta los hechos y las pruebas, excluyendo cualquier estereotipo que el tribunal pueda tener; (ii) en el caso de que la evidencia sea insuficiente para determinar si el caso involucra violencia de género, el tribunal deberá solicitar más evidencia para tomar una decisión; (iii) si el tribunal determina que el caso involucra violencia de género, aplicará la ley pertinente al caso particular y emitirá un fallo; (iv) los derechos humanos se tendrán en cuenta en todo momento durante el proceso y; (v) el uso de un lenguaje inclusivo para garantizar el acceso a la justicia sin estereotipos o discriminación sexual.



Adequate Defense of Pregnant Women in Labor Matters (Docket 3.o.2 L (10a.)) Third Collegiate Tribunal in the Assistant Center of the Tenth Region (2016)

Employment discrimination, Gender discrimination

ADEQUATE DEFENSE OF PREGNANT WOMEN IN LABOR MATTERS. PREGNANT WOMEN ARE CONSIDERED A VULNERABLE GROUP AND THEREFORE THE JUDGE SHALL RULE BASED ON A GENDER PERSPECTIVE.

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 issued may be persuasive in similar cases arising in other federal courts. The labor law states that every person shall have an appropriate defense. In addition, this right acquires different considerations when the claimant is a pregnant woman. Historically, women in Mexico have been fired solely for being pregnant. Pregnant women are consequently considered a vulnerable group. Therefore, this isolated thesis requires the courts to inform the claimant of her right to have an attorney, and in those cases where the claimant cannot afford one, the court shall appoint one for her. (Amparo Directo Laboral: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=484/04840000187544100005005.d...)

 

 

DEFENSA ADECUADA DE LAS MUJERES EMBARAZADAS EN ASUNTOS LABORALES. LAS MUJERES EMBARAZADAS SON CONSIDERADAS EN UN GRUPO VULNERABLE Y, POR LO TANTO, EL JUEZ REGIRÁ BASADO EN UNA PERSPECTIVA DE GÉNERO.

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, los criterios emitidos pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La ley laboral establece que cada persona tendrá una defensa apropiada. Además, este derecho adquiere diferentes consideraciones cuando el reclamante es una mujer embarazada. Históricamente, las mujeres en México han sido despedidas de sus empleos por estar embarazadas. En consecuencia, las mujeres embarazadas son consideradas un grupo vulnerable. Por lo tanto, esta tesis aislada requiere que los tribunales informen al reclamante de su derecho a tener un abogado, y en aquellos casos en que el reclamante no pueda pagar uno, el tribunal le asignará uno.



Public Safety (Isolated Thesis Docket XVI.1o.A.115 A (10a.)) First Collegiate Tribunal in Administrative Matters of the Sixteeth Circuit (2016)

Employment discrimination, Gender discrimination, International law

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. The Mexican Supreme Court has previously determined the social benefits to which a former public safety employee is entitled at the time of her termination. The social benefits and salary must be paid upon termination and must account for both the period before and after an unjustified termination for pregnancy. The Mexican Constitution (Article 123, section B, item XI, subparagraphs (a) & (c)) recognizes the rights of pregnant women. These include social benefits during pregnancy. Consequently, the impairment that results from the termination must be paid and includes: (a) medical bills and payments made to private medical institutions due to the lack of social security benefits and (b) the payment of the full salary from the last month before birth as well as the two months after it, unless there is a court ruling in relation to unpaid wages. This provision of the Mexican Constitution, as well as other provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment And Eradication Of Violence Against Women “Convention of Belém do Pará” compels the courts to rule with a gender perspective in order to ensure justice for this historically vulnerable social group. (Amparo Directo Administrativo 121/2016: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=1320/13200000186095880003003....)

 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes a todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La Corte Suprema de México ha determinado previamente los beneficios sociales a los que tiene derecho un ex-empleado de seguridad pública en el momento de su despido. Los beneficios sociales y el salario deben pagarse a la terminación y deben tener en cuenta tanto el período antes como el de después de una terminación injustificada por embarazo. La Constitución mexicana (Artículo 123, sección B, artículo XI, subpárrafos (a) y (c)) reconoce los derechos de las mujeres embarazadas. Estos incluyen beneficios sociales durante el embarazo. En consecuencia, el deterioro que resulta de la terminación debe pagarse e incluye: (a) facturas médicas y pagos realizados a instituciones médicas privadas debido a la falta de beneficios de seguridad social y (b) el pago del salario completo del último mes anterior al nacimiento, así como los dos meses posteriores al mismo, a menos que exista un fallo judicial en relación con los salarios impagos. Esta disposición de la Constitución mexicana, así como otras disposiciones de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW) y la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém do Pará" obliga a los tribunales a gobernar con una perspectiva de género para garantizar la justicia para este grupo social históricamente vulnerable.



Ruling with a Gender Perspective (Isolated Thesis Docket XXI.2o.P.A.1 CS (10a.)) Second Collegiate Tribunal in Criminal and Administrative Matters of the Twentieth Circuit (2017)

Gender discrimination

“RULING WITH A GENDER PERSPECTIVE. THE COURT MUST DETERMINE IF THE RELEVANT PARTY IS IN A VULNERABLE STATE THAT RESULTS IN A REAL DISADVANTAGE OR CLEAR IMBALANCE VIS-À-VIS THE OTHER PARTIES TO THE CASE.”

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. Each case that is brought to court must be analyzed in order to determine whether there is a degree of vulnerability for each woman. Without such scrutiny, courts cannot provide a gender perspective analysis to a controversy, as gender perspective does not depend solely on gender but on other considerations, such as social vulnerability, which must be proven. In order to determine if a woman finds herself in a disadvantaged situation, the following issues must be taken into consideration: (a) if one or more parties find themselves in one of the categories identified in the Brasilia Regulations Regarding Access to Justice for Vulnerable People; (b) the gender disadvantage and the violence that prevails in the place of residence or the social core in which the parties may be involved, in order to clarify the possible existence of structural inequality; (c) education level, age, socioeconomic situation, and the particular characteristics of all of the people involved in the trial, in order to determine if a inequality actually exists; and (d) all proven facts in the docket, in order to identify the power relationships. Taking the aforementioned considerations into account, it must be determined if in the particular case it is optimal to order measures seeking to balance one or more differences and vulnerabilities that prevent the disadvantaged party from the enjoyment of its human rights. (Amparo Directo Agrario 163/2016 here: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=752/07520000188524300006005.d...)

 

“REGLA CON UNA PERSPECTIVA DE GÉNERO. "EL TRIBUNAL DEBE DETERMINAR SI LA PARTE PERTINENTE ESTÁ EN UN ESTADO VULNERABLE QUE RESULTA EN UNA DESVENTAJA REAL O UN CLARO DESBALANCE VISE-VISE CON RESPECTO A LAS OTRAS PARTES DEL CASO." 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes a todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. Cada caso que se lleva ante el tribunal debe analizarse para determinar si existe un grado de vulnerabilidad unico para cada mujer. Sin tal control, los tribunales no pueden proporcionar un análisis de perspectiva de género a una controversia, ya que la perspectiva de género no depende únicamente del género, sino de otras consideraciones, como la vulnerabilidad social, que deben probarse. Para determinar si una mujer se encuentra en una situación de desventaja, se deben tener en cuenta los siguientes temas: (a) si una o más partes se encuentran en una de las categorías identificadas en el Reglamento de Brasilia sobre el acceso a la justicia para personas vulnerables ; (b) la desventaja de género y la violencia que prevalece en el lugar de residencia o el núcleo social en el que pueden participar las partes, a fin de aclarar la posible existencia de desigualdad estructural; (c) el nivel de educación, la edad, la situación socioeconómica y las características particulares de todas las personas involucradas en el ensayo, a fin de determinar si realmente existe una desigualdad; y (d) todos los hechos comprobados en el expediente, con el fin de identificar las relaciones de poder. Teniendo en cuenta las consideraciones mencionadas anteriormente, se debe determinar si, en el caso particular, es óptimo ordenar medidas que busquen equilibrar una o más diferencias y vulnerabilidades que impidan que las partes desfavorecidas disfruten de sus derechos humanos. 



Gumede v. President of the Republic of South Africa & Others Constitutional Court of South Africa (2008)

Divorce and dissolution of marriage, Gender discrimination, International law, Property and inheritance rights

Mrs. and Mr. Gumede, both domiciled in KwaZulu-Natal, entered into a monogamous customary marriage in 1968 and four children were born during their marriage.  Because she was forbidden by her husband to take up employment, Mrs. Gumede never worked and could not contribute to the accumulation of the family’s estate, which included two family homes.  She was always the primary caregiver of the children.  After forty years, the marriage broke down irretrievably.  Mrs. Gumede had no family and was dependent for financial support upon her children and her old-age pension.  In 2003, Mr. Gumede instituted divorce proceedings before the Divorce Court.  Mrs. Gumede also approached the High Court and obtained an order invalidating the discriminatory legislative provisions on which the Divorce Court could rely.  The Constitutional Court subsequently was approached by the Minister of Home Affairs and the KwaZulu-Natal Member of the Executive Council for Traditional Leaders and Local Government Affairs who resisted the order, for the reevaluation of the order of the High Court declaring constitutionally invalid certain sections of the Recognition of Customary Marriages Act, of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and certain sections of the Natal Code of Zulu Law (Proc R155 of 1987), which regulate the proprietary consequences of customary marriages.  In a lengthy judgment, the Constitutional Court took great pains to explain that any distinction between the consequences of customary marriages entered into before and after the Recognition of Customary Marriages Act came into operation is discriminatory, inconsistent with the Constitution, and invalid.  The Constitutional Court noted the international instruments that South Africa has ratified that prohibit forms of discrimination against women, including CEDAW.  It held that the two provisions are patently discriminatory, unfair, and not justifiable.  In terms of the judgment, all monogamous customary marriages entered into before the Recognition of Customary Marriages Act came into operation are now ipso facto in community of property, excluding customary marriages which had been terminated by death or by divorce before the date of the judgment.  The Constitutional Court further held that the constitutional invalidity of Section 7(1) was limited to monogamous marriages and should not concern polygynous relationships or their proprietary consequences, determining that polygynous marriages should continue to be “regulated by customary law until parliament intervenes.”



Regina v. Gua High Court of Solomon Islands (2012)

Domestic and intimate partner violence, Gender discrimination, International law, Sexual violence and rape

Macberth Gua was charged with the rape of his estranged wife of ten years.  The victim had not filed any divorce proceedings and there was no formal separation.  The defendant dragged the victim into his vehicle under the threat of violence and drove her to a remote location where he forced himself on her.  The defendant’s defense relied upon the antiquated common law maxim that a husband could not be liable for involuntary sexual intercourse with his wife (the “marital rape exception”), as her agreement to wed constituted an irrevocable consent to marital relations.  Moreover, Section 136 of the Penal Code of the Solomon Islands provides an excessively narrow definition of rape: “Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by impersonating her husband, is guilty of the felony termed rape.”  The question before the High Court was whether a husband could be held criminally liable for raping his wife.  The answer provided by the High Court was in the affirmative, which ruled that marriage is now regarded as a partnership of equals, and that this principle of equality has been reflected not only in international conventions to which the Solomon Islands is a party, but is also entrenched in the provisions of the Constitution.  In its rationale, the High Court noted that one of the international conventions to which the Solomon Islands is a party is CEDAW, which, in Article 15, calls on all State parties to accord women equality with men before the law and, in Article 16, calls for the same personal rights between husband and wife.  As for the Constitution, Sections 3 and 15 of the Constitution guarantee women equal rights and freedoms as men and afford them protection against all forms of discrimination, including discrimination on the ground of sex.  The High Court thus held that the rule exempting husbands from liability for rape on their wives is no longer applicable, that it is no longer supported by common law, and that it is offensive to modern standards and principles of equality found in international conventions and the Constitution.  Notwithstanding the foregoing, unfortunately in the sentencing decision following Regina v. Gua, the sentencing judge stated that “this is a case which has occurred as a result of domestic problems between a husband and his wife.  It is not an offence that has been committed to gratify one’s own sexual desires.  There is an underlying cause for the commission of the offence – the termination by the victim of her marriage to the accused.  Hence, the accused is not solely to be blamed for this incident.  The complainant must also share the blame.” 



TC/0003/17 Constitutional Court (2017)

Femicide, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

Due to the increase of femicide crimes in the Dominican society, the Constitutional Court proclaimed the termination of violence against women in all its forms as it is a violation of the Constitution. The proclamation was made in commemoration of the murder of Mirabal, Minerva, Patria and María Teresa, political opponents of the regime of Rafael Trujillo, and in accordance with the international agreements executed in defense of women's rights, as well as the laws issued against gender violence, sexual violence and femicide. 

 

Debido al aumento de los delitos de femicidio en la sociedad dominicana, el Tribunal Constitucional proclamó el cese de la violencia contra la mujer en todas sus formas, incluyéndolo como una forma de violación de la Constitución. Dicha proclamación se realizó en conmemoración del asesinato de Mirabal, Minerva, Patria, y María Teresa, quienes fueron opositores políticos del régimen de Rafael Trujillo. La proclamación está en conformidad con los acuerdos internacionales celebrados en defensa de los derechos de las mujeres y con las leyes emitidas contra la violencia basada en género sexual, violencia sexual en sí, y femicidio.



Sentencia TC/0070/15 Constitutional Court (2015)

Divorce and dissolution of marriage, Gender discrimination

Mrs. Angela Merici Mendoza Minier challenged the constitutionality of Article 35 of Law number 1306-Bis published on May 21st, 1937, which provided that a divorced woman could not marry within 10 months after the divorce. Mrs. Angela argued that Article 35 contravened the gender equality provision provided in Article 39 of the Constitution because the 10-month waiting period to remarry did not apply to men. Article 35 thus conferred a privilege only to men. The attorney-general disregarded the action on the basis that the petitioner lacked legitimate interest. However, the Constitutional Court determined that as a woman, Mrs. Angela could be affected by Article 35 and ruled that she therefore had a legitimate interest in challenging Article 35. The Constitutional Court subsequently admitted the action and nullified Article 35 on the basis that it no longer fulfilled its aim to prevent a woman from remarrying when already pregnant with her former husband’s child because it could have negative consequences for the child or the newly formed couple. As technology now allows women to know their state of pregnancy at an early stage, the restriction is no longer needed. Moreover, the Constitutional Court acknowledged that it is a woman’s decision to remarry, pregnant or not. 

La Sra. Angela Merici Mendoza Minier desafió la constitucionalidad del artículo 35 de la Ley número 1306-Bis publicada el 21 de mayo de 1937, la cuál establecía que una mujer divorciada no podría casarse por un período de 10 meses posteriormente a un divorcio. La Sra. Angela sostuvo que el artículo 35 era contrario a la disposición de igualdad de género garantizada en el artículo 39 de la Constitución porque el período de espera de 10 meses para volver a casarse no se aplicaba a los hombres. Ella propuso que el artículo 35 confería un privilegio único a los hombres. El fiscal general ignoró la acción basándose en que la peticionaria no tenía un interés legítimo en la acción. Sin embargo, el Tribunal Constitucional determinó que, como mujer, la Sra. Angela podría verse afectada por el artículo 35 y dictaminó que, por lo tanto, esto era un interés legítimo suficiente para impugnar el artículo 35. Posteriormente, el Tribunal Constitucional admitió la acción y anuló el artículo 35 sobre la base de que no cumplía su objetivo inicial de evitar que una mujer se volviera a casar mientras ya estaba embarazada con el hijo de su ex esposo, lo cual podría tener consecuencias negativas para el niño o para la pareja recién formada. Como la tecnología ahora permite a las mujeres conocer su estado de embarazo desde una etapa temprana, dicha restricción ya no es necesaria. Además, el Tribunal Constitucional agregó que es una decisión personal de la mujer volver a casarse, embarazada o no.



Advisory Opinion No. 2008/64 Fatwa & Contracts Department (2008)

Divorce and dissolution of marriage, Employment discrimination, Gender discrimination

This legal advisory opinion found that a divorced woman is not entitled to the typical social allowance provided to married individuals by their employers.  The woman, unnamed in the opinion, applied for the allowance because she has custody of her minor son.  The opinion states that the allowance can be only provided to married women with children whose husband is unemployed, jobless, or incapacitated.  A divorced woman cannot benefit from this support even if she is the sole custodian of her child.  Nonetheless, this Advisory Opinion requests that the Qatar Legislator revisit this situation a “with a view to cure the unreasonable position of a divorcee employee who has children, because her situation resembles the situation of a widow in jurisprudence.”



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.



Employment Termination (Jurisprudential Thesis Docket: 2a./J.66/2017 (10a.)) Supreme Court of Mexico (2017)

Employment discrimination, Gender discrimination, Sexual harassment

“EMPLOYMENT TERMINATION. WHEN EMPLOYMENT IS TERMINATED DURING AN EMPLOYEE’S PREGNANCY, THE EMPLOYER BEARS THE BURDEN OF PROOF TO DEMONSTRATE THAT SUCH TERMINATION WAS NOT DISCRIMINATORY.”

This jurisprudential thesis is a relevant example of case law, as the criteria issued by the Mexican Supreme Court is binding on all courts in the country. Mexico recognizes labor matters as independent from other matters of law, with a unique set of courts, legislation, and doctrine. This case law in particular comes from two different isolated theses, as settled by two different federal courts. The first case was settled by the Third Collegiate Tribunal in Labor Matters of the Third Circuit, and the second case was settled by the Third Collegiate Tribunal of Circuit in the Assistant Center of the Tenth Region. Both court resolutions contained contradictory substantive issues, which prompted the Supreme Court to settle these discrepancies. The Supreme Court acknowledged that all pregnant women should enjoy certain specific rights resulting from pregnancy. The Court also found that these rights should be extended to the postnatal period. The Supreme Court recognized that most pregnant women will likely face a lack of job security given the costs that maternity leave implies for most employers. The Supreme Court determined that pregnant women require certain social security benefits in order to eliminate the barriers and obstacles that they may face during the pre- and postnatal periods. When a pregnant employee is terminated and argues that the termination was discriminatory, the employer bears the burden of proving that such termination was not due to the woman’s pregnancy or any other discriminatory reason. In such scenarios, the courts must take a gender perspective approach in deciding such controversies in order to be able to effectively guarantee the rights of women recognized under the Mexican Constitution and international treaties to which Mexico is a signatory.

 

“TERMINACIÓN DEL EMPLEO. "CUANDO EL EMPLEO SE TERMINA DURANTE EL EMBARAZO DE UN EMPLEADO, EL EMPLEADOR ASUME LA CARGA DE PROBAR QUE DICHA TERMINACIÓN NO FUE DISCRIMINATORIA".

Esta tesis jurisprudencial es un ejemplo relevante de jurisprudencia, ya que los criterios emitidos por el Tribunal Supremo de México son de relevancia para todos los tribunales del país. México reconoce que los asuntos laborales son independientes de otros asuntos de la ley, con un conjunto único de tribunales, legislación y doctrina. Esta jurisprudencia en particular proviene de dos tesis diferentes, según lo resuelto por dos tribunales federales diferentes. El primer caso fue resuelto por el Tercer Tribunal Colegiado en Asuntos Laborales del Tercer Circuito, y el segundo caso fue resuelto por el Tercer Tribunal Colegiado de Circuito en el Centro Asistente de la Décima Región. Ambas resoluciones judiciales contenían cuestiones sustantivas contradictorias, lo que llevó a la Corte Suprema a resolver estas discrepancias. La Corte Suprema reconoció que todas las mujeres embarazadas deberían disfrutar de ciertos derechos específicos derivados del embarazo. El Tribunal también determinó que estos derechos deberían extenderse al período postnatal. La Corte Suprema reconoció que la mayoría de las mujeres embarazadas probablemente enfrentarán una falta de seguridad laboral, dado los costos que la licencia de maternidad implica para la mayoría de los empleadores. La Corte Suprema determinó que las mujeres embarazadas requieren ciertos beneficios de seguridad social para eliminar las barreras y obstáculos que pueden enfrentar durante los períodos pre y postnatal. Cuando una empleada embarazada es despedida y argumenta que la terminación fue discriminatoria, el empleador tiene la responsabilidad de probar que dicha terminación no se debió al embarazo de la mujer ni a ninguna otra razón discriminatoria. En tales escenarios, los tribunales deben adoptar un enfoque de perspectiva de género al decidir tales controversias para poder garantizar de manera efectiva los derechos de las mujeres reconocidos en la Constitución mexicana y los tratados internacionales de los que México es parte.



Case of Clarisa Velázquez de Acosta Supreme Court (1995)

Employment discrimination, Gender discrimination

Quijote, S.R.L., (the “Company”) fired the plaintiff while she was pregnant.  The Labor Appeals Court (the “Court”) found that the firing was illegal because the law seeks to protect pregnant women, and though the medical certificate is a guarantee for the employer, it is not a requirement.  The Court ordered the company to reinstate the plaintiff to her position and pay her lost wages.  The Company challenged the court order in 1993, but the Supreme Court dismissed the challenge as an unconstitutional action in 1995.  Consequently, the Labor Appeals Court ruling remained in effect.



Nxumalo v. Ndlovu Supreme Court (2011)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The executor of the estate of a deceased man (the appellant) brought an application to the High Court for a declaration that the civil marriage to the respondent was bigamous and invalid because of a number of pre-existing customary marriages between the deceased and three other women. The deceased considered the marriages over when the women left him and never returned. The deceased had executed a will and later four codicils. The High Court found that the respondent’s civil law marriage was a lawful marriage in community of property, and the will was declared null and void. The appeal is of the order of the High Court. The Supreme Court heard testimony from one of the wives married to the deceased under customary law and from experts in Swazi law and custom relating to the dissolution of customary marriages. The Supreme Court found in favour of the appellant. The decision of the High Court was set aside and the Master of the High Court was to appoint a suitable and proper person to administer the deceased estate. This case is important as it illustrates the importance and status of Swazi law.



Dlamini v. The Quadro Trust & 8 Others Supreme Court (2016)

Gender discrimination, Property and inheritance rights

The appellant sought to set aside a lower court’s decision and remove his deceased paternal grandmother’s estate executors. The lower court found that the appellant had no locus standi to bring forth the application as he was not the lawful beneficiary of his grandmother’s estate—he was born out of wedlock and his father predeceased his now deceased paternal grandmother. Therefore, the appellant had no right of inheritance intestate. The Supreme Court found that Section 31 of the Constitution (the abolition of the common law status of illegitimacy of a person born out of wedlock) abolishes the principle that children cannot inherit from their father. The Court upheld the appeal and found that the applicant had locus standi to institute or defend legal proceedings relating the deceased estate.



Stapley v. Dobson High Court (2008)

Gender discrimination

This is a child custody case involving a father (the applicant) seeking custody of his minor child because the child’s biological mother, the respondent, sought to take the child to Sri Lanka without the applicant’s permission. The applicant and respondent were never legally married and the respondent had custody of the child. The Court found that Section 31 of the Constitution abolishes the status of illegitimacy of children but that Section 31 is silent on the status of the father of a child born out of wedlock. The Court held that until Parliament enacts the necessary laws under Section 29(7) of the Constitution (which specifically provides for the enactment of laws by Parliament to ensure children’s rights) the legal effects flowing from the fact that the child was born out of wedlock apply and the Court cannot grant guardianship of the minor child to the applicant. Section 31 of the Constitution relates, in part to the rights of children born out of wedlock to inherit from their father. The Court was satisfied that the mother showed careful preparation in her decision to move to Sri Lanka for better career opportunities. The application failed.  



Mabuza v. Shongwe Supreme Court of Appeal of Swaziland (2006)

Gender discrimination, Harmful traditional practices

The appellant was the maternal grandfather of two minor children (the subject of the application). The appellant was appealing a decision of the trial court which ordered that the children be placed the custody of their biological father (the respondent). The children stayed with the appellant for a period of time while the respondent pursued his education in South Africa. Upon the respondent’s return, he fetched the children from the applicant’s residence. One of the appellant’s arguments was that because the marriage between the appellant’s deceased daughter and the respondent was invalid under Swazi law, the custody of the children should be with the maternal family (in accordance with Swazi law and custom). The Court stated that Section 29(4) of the Constitution removes the distinction between legitimate and illegitimate children as it states that children whether born in or out of wedlock shall enjoy the same protection and rights. The Court found that the most important considerations were the welfare, interests and happiness of the children. The Court found that no evidence was adduced to prove that the respondent was not fit to have custody over the children and the appeal was dismissed. 



Law of 5 May 2014 (2014)

Gender discrimination, LGBTIQ

The Law of 5 May 2014 considers the determination of the descent of the co-mother amended the Civil Code to ensure that women in a lesbian relationship no longer have to adopt their child. For married couples, the wife of the biological mother is automatically recognized as co-mother, while for non-married couples, the partner, in order to be recognized, has to recognize the child officially before or after its birth. In case of dispute considering the recognition of the co-mother, the agreements and informed consents, signed in the center for medically assisted propagation will serve as evidence for recognition (or non-recognition) of the co-mother. It is noteworthy that in Belgium, the concept of co-father does not yet exist and men thus still have to adopt in order to become the father of their child.


B.M. v. R.C. Constitutional Court (2009)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Until 1976, the rules applicable on marriage and divorce originated in the Code Napoléon. At that time, the right to manage property within a marriage was held entirely by the man. To ensure that women would not suffer the negative consequences of bad management by their spouse (i.e., debts), in the event the marriage was dissolved they had the option to decline or to accept the division of assets and liabilities within a specified period. Silence meant that all matrimonial property rights and obligations were declined. The Civil Code was amended from mid-1976 by the Law of 14 July 1976 to remove this discrimination but contained transitional provisions requiring the old rules to continue to apply under certain circumstances. In the case at hand (in which the women failed to make a declaration within the old deadline), the Constitutional Court was asked if the old provisions still applied for marriages entered into before the amendments became applicable and dissolved after that date. The first court ruled that the deadline no longer applied (as there was no basis for it because men and women acquired equal rights to manage matrimonial property in 1976), but it took successive appeals, culminating in an appeal before the Belgian Supreme Court, to confirm this and annul the relevant transitional provisions.



Test-Achats Constitutional Court (2011)

Gender discrimination, International law

Following a proceeding brought by a Belgian consumer organization to seek the annulment of a law amending the Gender Law of 2007 in so far as it allowed certain differences in insurance premiums to be paid by men and women, the Constitutional Court (drawing on a judgment of the European Court of Justice as this concerned a question of the interpretation of a provision in a European Directive) ruled that such different treatment was permitted only for policies concluded before 21 December 2012.



L. Montre v. Institut national d'assurances Constitutional Court (1999)

Employment discrimination, Gender discrimination

Mr. Montre brought proceedings before the Antwerp Labor Court because the law applicable at the time (Royal Decree No 72 of 10 November 1967 on the retirement and survivors' pension for self-employed persons) allowed him to benefit from a full pension only as of the age of 65 and obliged him to accept a 25% reduction in his pension if he chose to retire at the age of 60 (5% per year before 65), while self-employed women could retire at the age of 60 and enjoy a full pension. Upon referral, the Constitutional Court ruled that there was no discrimination in this particular case because at that time, there were still long-standing differences between self-employed men and self-employed women as regards working opportunities and conditions. These objectively and reasonably justified a distinction as to the age of retirement: (i) Women had fewer opportunities to work as self-employed persons and as a result had lower pension entitlements as these were based on the length of career and women generally had shorter careers; (ii) To balance this inequality, a younger retirement age had been attributed to women and a pension reduction applied to men who retired before their normal retirement age of 65; (iii) It would take time to redress the low level of opportunities for women in the self-employment sector, so only a  progressive abolition of the retirement age difference could be appropriate.  This in turn would bring Belgium, an EU Member State, into line with EU regulations and case law on this topic. 



M.S. v. Markant Netwerk van Ondernemende Vrouwen Constitutional Court (2008)

Employment discrimination, Gender discrimination

The Labor Court of Ghent referred a number of prejudicial questions to the Constitutional Court in the context of a dispute between a woman who claimed that her employer dismissed her after having requested maternity leave, parental leave and the continuation of a related “time credit” contract. The Labor Court agreed that the company had not provided justification for the dismissal, but had questions about how to calculate the indemnity. The applicant claimed it should be calculated on the basis of full-time employment. The Constitutional Court, however, ruled that reducing an employee’s benefits proportionally for part-time workers (which disproportionately affects women) was not a form of discrimination as the regime applies equally to men and women.



X. v. X. Cour du Travail de Bruxelles (2017)

Employment discrimination, Gender discrimination

In November 2011, the applicant became pregnant and in February 2012 she was dismissed as part of a restructuring procedure in which 20% of employees were laid-off. She argued that the termination of her contract was due to her pregnancy. The Labor Court ruled in her favor and ordered the company to pay her an indemnity and to bear the costs of the legal proceedings because it failed to prove that the dismissal of the pregnant woman was based on reasons unrelated to her state of pregnancy.



H.N. v. E.Y.A. Labor Court of Brussels (2015)

Employment discrimination, Gender discrimination

On appeal of a judgment of a lower court, the Labor Court ruled that the protection of women from being fired by an employer for reasons related to their pregnancy (including pregnancy-related absences/illnesses) also applies during the trial period, regardless of legislation permitting employers to fire employees during their trial period when absent for a period exceeding seven days.  As a result, a pregnant employee may only be fired during the pregnancy-related protection period (i.e., from the moment the employer is notified of the pregnancy until one month following the legal post-natal maternity leave) if the employer can prove that the laying-off is due to reasons unrelated to the pregnancy. In case of doubt, the court will rule in favor of the employee.



Masupha v. Senior Resident Magistrate for the Subordinate Court of Berea High Court of Lesotho (Constitutional Division) (2013)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief.  Because there were no firstborn males in his immediate family, upon his death, the late Chief’s wife and the petitioner’s mother was appointed as a caretaker Chief in accordance with the Chieftainship Act.  Following the death of the late Chief’s wife in 2008, the late Chief’s younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, which was challenged by the late Chief’s son from a second wife, as well as that son’s mother.  The petitioner, who had not been included in the proceedings before the lower court, subsequently intervened to request a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was precluded from seeking to succeed to the chieftainship, as she was the first-born child.  Masupha argued that the Chieftainship Act does not necessarily preclude her from inheriting the chieftainship and that, even if the Chieftainship Act in fact precludes her from doing so, it should be struck down, because it violates multiple provisions of the Constitution.  The High Court highlighted the fact that, in acceding to CEDAW, Lesotho specifically excluded itself from the provisions of that Convention in so far as it concerns the customary practices relating to succession to the throne and to chieftainship.  It therefore dismissed Masupha’s petition seeking to declare the Chieftainship Act provision preventing female offspring from inhering chieftainships discriminatory and therefore unconstitutional, finding that the Chieftainship Act was not discriminatory, because it allows the senior wife to inherit the title as a caretaker, if there are no living first-born males from any of the deceased’s marriages.  The High Court concluded that, when a wife succeeds her husband as a caretaker, the right to inherit reverts back to the male line of the family upon the death of the female chief.  The judgment was appealed to the highest court in the country, the Court of Appeal, which affirmed the High Court’s decision and upheld the customary law effectively denying women the ability to succeed to chieftainship.



Estate of Lerionka Ole Ntutu High Court of Kenya at Nairobi (Family Division) (2008)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Lerionka Ole Ntutu was survived by multiple wives, sons, and daughters.  After his sons filed an application asking the High Court to issue to them the letters of administration to administer their father’s estate, their sisters and stepsisters filed an objection and claimed their inheritance.  The sons contested the objection, arguing that the distribution of their father’s estate was governed by Masai customary law, which did not recognize the right of daughters to claim an inheritance from their father’s estate.  The judge in the first instance found that, because Ntutu was Masai and lived in an area excluded from the Succession Act, his estate should be divided accorded to Masai custom.  The judge thus held that none of the daughters could inherit from their father’s estate.  In ruling on the daughters’ appeal, the Court of Appeal invoked international treaties and covenants, including CEDAW, in finding that the daughters of the deceased person in that case were entitled to a share of his estate.  On appeal before the High Court, the definitive question before Lady Justice K. Rawal was whether the Court should apply the Law of Succession Act or the customary law of the Masai community.  The High Court was satisfied that, even if the Law of Succession Act allowed Ole Ntutu’s community to apply customary law in the distribution of his estate, any tenet of such customary law that would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and could not be applied.  The High Court thus ruled that Ole Ntutu’s daughters were entitled to inherit their father’s land.



Mmusi v. Ramantele High Court of Botswana at Gaborone (2012)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them.  The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs.  The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child.  The rest of the property was to be divided among the children, regardless of gender.  The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew.  The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under s 3(a) of the Constitution of Botswana.  On 12 October 2012, the High Court subsequently awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property.  On 3 September 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”  This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana.



Public Ministry v. Busudu Tina Court of Greater Instance of Bukavu (1995)

Abortion and reproductive health rights, Gender discrimination

Busudu Tina (“the accused”) was prosecuted by the State for having aborted her pregnancy, punishable under Articles 165 and 166 of the Congolese Penal Code.  She attempted to abort her pregnancy using different methods, including ingesting quinine, manioc infusion, and a product described as ‘cloveganol’, and admitted to the Tribunal that she had aborted a previous pregnancy in 1991.  The Tribunal became aware of the abortion when an acquaintance, worried for the accused’s health, sought assistance despite being sworn to secrecy by the accused.  The fetus was hidden in a laundry bag, which found its way to the prosecutor’s office.  The Tribunal applied the minimum sentence of five years imprisonment, taking into account as a mitigating factor that she and her husband were estranged after six months of pregnancy. (Available at pages 128-130 on the linked website.)



Request to access conformity with the Constitution of procedural rules of the Provincial Assembly of Tanganyika (Requête en appréciation de la conformité à la constitution du Règlement intérieur de l’Assemblée provinciale du Haut-Uélé R.Const. 172) Constitutional Court (2015)

Gender discrimination

The Constitutional Court considered a challenge to the internal provincial government’s procedural rules which included, among other claims, that one Article of the procedural rules violated the gender equality requirement of Article 14 of the Constitution.  The Court found the procedural rules to conform to Article 14, provided that they must be understood and interpreted in light of line four of Article 14, which requires equitable representation of women in provincial institutions (available at pages 46-50 on linked site).



McBain v. State of Victoria Federal Court of Australia (2000)

Gender discrimination

Dr. John McBain, a Melbourne doctor specialising in reproductive technology, was consulted by Ms. Lisa Meldrum, a single woman wishing to conceive through in-vitro fertilisation (IVF) using donor sperm. Dr. McBain told Ms. Meldrum he was prohibited by Victorian legislation (namely, the Infertility Treatment Act) from administering IVF treatment to her because she was single. He then commenced proceedings seeking a declaration that provisions of the Victorian legislation were inconsistent with the Sex Discrimination Act (in particular, section 22, which deals with discrimination in relation to the provision of goods and services), and hence inoperative to the extent of the inconsistency. Justice Sundberg held that fertility treatments, including IVF, constituted “services” provided by medical practitioners within the meaning of section 22 of the Sex Discrimination Act. Because the Infertility Treatment Act makes provision of IVF treatment contingent on a woman’s marital status (as well as her medical state), Justice Sundberg concluded that the Victorian legislation violated section 22 of the Sex Discrimination Act and was unlawful under section 109 of the Australian Constitution. This case holds that women do not have to be married or in a de facto relationship to be eligible for infertility treatment.



CES v. Superclinics New South Wales Court of Appeal (1995)

Gender discrimination

The appellant, CES, brought a medical negligence case against the respondent, Superclinics, seeking damages for loss of the opportunity to terminate her pregnancy after a number of medical practitioners repeatedly failed to properly diagnose her pregnancy. The medical negligence claim aside, the Court of Appeal considered the decision of R v. Wald – namely that that an abortion is lawful if a doctor is able to say that, in the particular woman’s circumstances, an abortion is required to avoid a “serious danger to her life or to her physical or mental health” (including “the effects of economic or social stress”). Justice Kirby liberalized and extended the R v Wald decision by finding that when determining whether to perform an abortion, consideration should be given not only to the woman’s health during the pregnancy, but also after the child is born. Justice Kirby’s interpretation of the law now represents the legal position in New South Wales, Australia.



R. v. Davidson Supreme Court of Victoria (1969)

Gender discrimination

Dr. Charles Kenneth Davidson was a medical doctor charged with four counts of unlawfully using an instrument and one count of conspiring to use an instrument or other means with intent to procure the miscarriage of a woman. The Court found that an abortion would be lawful if the accused held an honest and reasonable belief that the abortion was both “necessary” and “proportionate.” In this context, “necessary” means that the abortion was necessary to prevent serious harm to the woman’s life and/or physical or mental health, beyond the normal dangers of pregnancy and childbirth. “Proportionate” means the abortion was not out proportion with the danger to be averted. The jury applied Menhennitt J’s interpretation of the law and acquitted Dr. Davidson of the charges.

* This is a landmark decision, which has not been re-examined, despite several cases in which it could have been. Therefore, this decision continues to represent the legal position in Victoria, Australia.



Equal Remuneration Case Fair Work Australia (2012)

Employment discrimination, Gender discrimination

The Australian Services Union brought a claim against Fair Work Australia (FWA) on behalf of non-government workers in the Social, Community and Disability Services (SACS) industry for gender-related underpayment. They argued because the majority of workers in the SACS industry were female, they were compensated less than other state and local government employees in more male-dominated fields. The Full Bench of FWA found that gender had an important influence on the alleged pay gap, even though it was not the sole cause. In a landmark decision, FWA ordered increases of between 19% and 41% to the award rate to remedy the part gender had played in inhibiting long-term wage growth in the SACS industry – i.e., to prevent the SACS employees from suffering disadvantageous treatment for being predominantly female.



Poppy v. Service to Youth Council, Inc. Federal Court of Australia (2014)

Employment discrimination, Gender discrimination

The Plaintiffs, Ms. Stanley (case available here) and Ms. Poppy, each claimed that their employer discriminated against them due to their pregnancies. Both were made redundant from the same organization while on parental leave, about two years apart. Both of the Plaintiffs’ positions were eliminated by their employer due to a reorganization of the employer’s management structure. In both cases, the Plaintiffs’ absence from work caused their employer to conclude that their positions were no longer required. In particular, when Stanley and Poppy went on parental leave, their job duties were redistributed to colleagues. This caused their employer to decide that Stanley and Poppy’s positions were redundant. In both cases, the Federal Court found that the employer would not have restructured its management in this way if the Plaintiffs had not taken maternity leave. Because the restructuring involved only those employees working at the time it occurred, the fact that the Plaintiffs were on maternity leave (and thus not present) disadvantaged them. However, the Federal Court found that Plaintiffs’ dismissals did not constitute discrimination because neither Plaintiff could show that the employer treated them any differently than it would an employee who was not pregnant or on leave in similar circumstances.



Stanley v. Service to Youth Council, Inc. Federal Court of Australia (2014)

Employment discrimination, Gender discrimination

The Plaintiffs, Ms. Stanley and Ms. Poppy (case available here), each claimed that their employer discriminated against them due to their pregnancies. Both were made redundant from the same organization while on parental leave, about two years apart. Both of the Plaintiffs’ positions were eliminated by their employer due to a reorganization of the employer’s management structure. In both cases, the Plaintiffs’ absence from work caused their employer to conclude that their positions were no longer required. In particular, when Stanley and Poppy went on parental leave, their job duties were redistributed to colleagues. This caused their employer to decide that Stanley and Poppy’s positions were redundant. In both cases, the Federal Court found that the employer would not have restructured its management in this way if the Plaintiffs had not taken maternity leave. Because the restructuring involved only those employees working at the time it occurred, the fact that the Plaintiffs were on maternity leave (and thus not present) disadvantaged them. However, the Federal Court found that Plaintiffs’ dismissals did not constitute discrimination because neither Plaintiff could show that the employer treated them any differently than it would an employee who was not pregnant or on leave in similar circumstances.



Minister for Immigration and Citizenship v. SZONJ Federal Court of Australia (2011)

Domestic and intimate partner violence, Gender discrimination

The respondent was a victim of domestic violence at the hands of her husband for a number of years in her native country, Fiji. After unsuccessfully attempting to obtain assistance from local police, she fled to Australia and applied for a protection visa. To be recognized as a refugee the respondent had to show that Fiji’s failure or unwillingness to protect her was motivated by a reason listed in the Convention Relating to the Status of Refugees 1951 (Convention), in this instance, her membership in a particular social group. Respondent argued she belonged to the following social groups: women in Fiji, women in Fiji who have left their husbands, and women who refuse to conform to the social norms of Fijian Indo society. She argued that her membership in these groups meant that Fijian police would not protect her from her husband’s assaults if she returned to Fiji. The Refugee Review Tribunal (Tribunal) found: (i) there was no evidence that the Fijian authorities withheld state protection from the respondent based on her membership in these particular social groups; (ii) Fiji has laws against domestic violence; and (iii) Fiji had a police force and judiciary to give effect to its domestic violence laws. On appeal, the Federal Magistrate’s Court overturned the Tribunal’s decision, finding that the Tribunal erred by failing to explicitly evaluate whether Fiji’s laws were sufficient to protect a person in the respondent’s position. The Full Federal Court overturned the Federal Magistrate’s Court’s decision and upheld the reasoning of the Tribunal, holding that the test for refugee protection is not satisfied where (i) the persecution is by a non-state agent (here, the respondent’s husband) for a reason that has no connection to the Convention, and (ii) the state fails to prevent the persecution due solely to its inability to implement relevant laws due to lack of resources.



Whitewood v. Wolf U.S. District Court for the Middle District of Pennsylvania (U.S. Third Circuit Court of Appeals) (2011)

Gender discrimination, Harmful traditional practices

This case legalized same-sex marriage in Pennsylvania. Reviewing the state’s statutory ban on such marriages, the federal district court applied intermediate scrutiny and determined that the ban violated the Due Process and Equal Protection clauses of the United States Constitution. The ruling was not stayed and same-sex couples in Pennsylvania could request and receive marriage licenses immediately, and marry after a mandatory 3-day waiting period. The court’s decision made Pennsylvania the 19th state to recognize same-sex marriage.



Planned Parenthood of Se. Pennsylvania v. Casey United States Supreme Court (1992)

Abortion and reproductive health rights, Gender discrimination

In light of Roe v. Wade, the plaintiffs challenged various abortion-limiting restrictions in Pennsylvania’s Abortion Control Act. The Supreme Court created a new test that asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which the Court defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Pursuant to this test, the Court upheld nearly all of the restrictions in Pennsylvania’s state abortion law, including parental notification/consent requirements for minors and limitations on public funding of abortions. However, the Court did find that the statute’s husband notification requirement was unlawful. 



Harmon v. GZK, Inc. Court of Appeals of Ohio (2002)

Employment discrimination, Gender discrimination, Sexual harassment, Sexual violence and rape

The plaintiffs worked at a restaurant operated by GZK. They alleged that a cook who worked with them repeatedly made lewd and sexually violent comments toward them, as well as touched them inappropriately without consent. The plaintiffs also alleged that a supervisor also made inappropriate sexual comments and groped them as he pretended to accidentally brush against them. They testified that they had brought this behavior to the attention of the management. The plaintiffs filed suit in the Montgomery County Court of Common Pleas, claiming sexual harassment, negligent supervision and retention, intentional infliction of emotional distress, and retaliatory discharge. The Court granted summary judgment in favor of their employer and the manager, but the Court of Appeals of Ohio reversed on all charges except the retaliatory discharge, finding genuine issues of material fact as to whether evidence of the cook and the manager’s inappropriate behavior rose to the level of creating a hostile work environment. 



Payton v. Receivables Outsourcing, Inc. Court of Appeals of Ohio (2005)

Employment discrimination, Gender discrimination, Sexual harassment

Marilyn Payton worked for Receivables Outsourcing for six weeks, during which time she was sexually harassed by a fellow employee who was assigned to train her at her new job. The harassment consisted of inappropriate comments until one day the coworker pulled up to her car as she was driving away from work, asked her to roll down her window, and then offered her ten dollars to perform a sex act. She complained to her manager that she felt unsafe, and the manager said he would “take care of it.” When she returned to work to find the manager not there, she informed the company lawyer of the harassment and left work, stating that she felt unsafe without the manager there. The next day she was fired for leaving work. She filed suit against her employer in the Cuyahoga Court of Common Pleas for hostile work environment sexual harassment and retaliatory discharge, but the Court granted summary judgment in favor of her employer. The Court of Appeals of Ohio reversed, finding that a genuine dispute of material fact existed as to whether the alleged harassment rose to the level of creating a hostile work environment and whether the employer negligently retained the alleged harasser.



Egli v. Congress Lake Club Court of Appeals of Ohio (2010)

Employment discrimination, Gender discrimination

The plaintiff -appellant was the “head golf professional” at the Congress Lake Golf Club. Despite her formidable golfing pedigree, the club’s board of directors requested her resignation, ostensibly because of her inability to manage various golf programs. She sued the defendant for sex discrimination in the Stark County Court of Common Pleas. The Court granted summary judgment in favor of the defendant, but the Court of Appeals of Ohio reversed, finding that there was an issue of fact as to whether the golf club’s proffered legitimate reason for her termination were pretextual.



Lascu v. Apex Paper Box Co. Court of Appeals of Ohio (2011)

Employment discrimination, Gender discrimination

The plaintiff-appellant had been employed at Apex for approximately 30 years before being fired in connection with Apex’s reduction in force. She filed suit in the Cuyahoga County Court of Common Pleas, alleging that she was the victim of gender discrimination. The Court granted summary judgment in favor of the defendant, and the Court of Appeals of Ohio affirmed, holding that her unsupported assertions of discrimination were insufficient to overcome the defendant's legitimate reduction-in-force justification.



Pitts-Baad v. Valvoline Instant Oil Chage Court of Appeals of Ohio (2012)

Employment discrimination, Gender discrimination

The plaintiff-appellant worked as an assistant manager of a Valvoline Instant Oil Change branch. She was on track for a promotion but did not pass all the required courses. When she was eight months pregnant, she tripped and fell at work. On the advice of her doctor, she reported the injury to her employer. Later, when she returned form maternity leave, she found the work environment distrusting, and she was often not permitted to take breaks to pump her breast milk for long periods of time. After she failed to follow correct procedures on an oil change, her employment was terminated. She sued Valvoline alleging gender discrimination and retaliation, but the Stark County Court of Common Pleas granted the defendant’s motion for summary judgment. The Court of Appeals of Ohio affirmed, holding that the plaintiff had failed to show that the defendant’s legitimate reason for terminating her employment was not a pretext.



Jones v. MTD Consumer Group, Inc. Court of Appeals of Ohio (2015)

Employment discrimination, Gender discrimination, Sexual harassment

The plaintiff was fired from his job with MTD Consumer Group after sexually harassing a coworker. He and the coworker had been in a romantic relationship, which had since ended, when the coworker complained that the plaintiff had made a threatening gesture to her and her new boyfriend outside of her home. The plaintiff was also verbally derogatory toward this coworker until his employment was terminated. He sued MTD in the Medina County Court of Common Pleas, alleging reverse gender discrimination and negligent retention of his coworker. The Court granted the employer’s motion for a directed verdict, and the Court of Appeals of Ohio affirmed, holding that the evidence at trial was insufficient to support the plaintiff's claim that he was treated differently form a similarly-situated coworker.



Mender v. Chauncey Court of Appeals of Ohio (2015)

Employment discrimination, Gender discrimination

Ginger Mender, who was elected mayor of the Village of Chauncey, alleged that immediately after she took office, the Village conspired to force her to resign. She claimed that Village employees refused her an office, keys to Village buildings, basic office equipment, and disrupted her attempts to speak at Village council meetings with ridicule and laughter. After she refused a request to resign, three different petitions were filed in the Athens County Court of Common Pleas. She filed suit for gender discrimination, among other claims, in the Athens County Court of Common Pleas. The defendants argued that the disagreements were not gender discrimination but political power struggles. After a jury trial, the court granted the Village’s motion for a directed verdict. The Court of Appeals for Ohio affirmed, holding that the evidence was insufficient to support a prima facie case of gender discrimination; even though her successor was a man and thus outside the protected class, the voters of the Village rather than the Village government itself made the decision regarding her replacement.



Weber v. Ferrellgas, Inc. Court of Appeals of Ohio (2016)

Employment discrimination, Gender discrimination

The plaintiff-appellant worked as a customer service representative for Ferrellgas and received high marks on her employment evaluations. When her employer opened a position for which the plaintiff thought she was qualified, her supervisor discouraged her from applying, saying that it would be a difficult job for her because she had children. About six months later, she reported this conversation to the regional vice president, who mediated a meeting between the two. When another employee alleged that the plaintiff had suggested transferring funds owed to a customer to her personal account, she was fired for violating the company’s ethics policy. She filed suit against Ferrellgas for gender discrimination and retaliation, but the Trumbull County Court of Common Pleas entered summary judgment in favor of the defendant. The Court of Appeals of Ohio affirmed, holding that she had not established a prima facie case of gender discrimination.



Vogt v. Total Renal Care, Inc. (2016)

Employment discrimination, Gender discrimination

The plaintiff-appellant worked as a regional operations director for Total Renal Care, Inc., which operated dialysis centers. The plaintiff received positive reviews by her coworkers and supervisors, but following Total Renal Care’s acquisition, she was transferred to a different group than the one she had previously worked in, which came with a reduced bonus and fewer stock awards. In addition, her employer filled her previous position with a male and promoted another male to a position for which she was potentially eligible. She brought suit in the Cuyahoga County Court of Common Pleas for gender discrimination and retaliation, but the court granted summary judgment in favor of her employer. The Court of Appeals of Ohio affirmed on all counts except the plaintiff's gender discrimination claim, finding that there was a fact issue as to whether the plaintiff suffered an adverse employment action necessary for sustaining a gender discrimination claim.



Allen v. Totes Isotoner Corp. Supreme Court of Ohio (2009)

Employment discrimination, Gender discrimination

The plaintiff-appellant, an employee of Totes/Isotoner Corporation, had for two weeks taken breaks without her employer’s knowledge to lactate. After the defendant fired her “for her failure to follow directions,” the plaintiff filed suit alleging wrongful termination on the basis of her pregnancy. The Butler County Court of Common Pleas granted summary judgment in favor of her employer, and the Court of Appeals of Ohio affirmed. The Supreme Court of Ohio also affirmed, holding that there was no evidence that employer's articulated legitimate, nondiscriminatory reason for employee's termination, i.e., failure to follow directions, was pretext for pregnancy discrimination.



M.B. v. D.W. Kentucky Court of Appeals (2007)

Divorce and dissolution of marriage, Gender discrimination

The new husband of a divorced mother of three children filed a petition seeking to adopt the remaining minor child without the consent of her biological father, effectively terminating her parental rights. After the divorce, appellant-father underwent gender reassignment surgery and now lives as a woman. The children discovered this when they visited their father in Florida and told her afterward that they no longer wanted to see her. The minor child testified that she did not want to see her father, wants to be adopted by her stepfather, and is in psychological counseling. The Hardin County Circuit Court granted the petition, finding that the children suffered psychological harm because they were not adequately prepared for their father’s transition. The Court of Appeals of Kentucky affirmed, largely on the justification that circuit courts have broad discretion in determining whether, in parental rights actions, termination is in the child’s best interest due to abuse or neglect. The Court of Appeals and trial court both noted that the appellant's sex reassignment was not the basis for terminating her parental rights. They explained that she failed to prepare her children or ex-wife at all for her transition, her minor child suffers from ongoing psychological harm, she did not meet her financial obligations for her minor child’s medical care, and her minor child wanted to be adopted by her stepfather.



McBrearty v. Kentucky Community and Technical College System Kentucky Court of Appeals (2008)

Employment discrimination, Gender discrimination

Jenean McBrearty held an eleven-month tenure-track teaching contract with the Kentucky Community and Technical College System. One of her colleagues recommended that she include an opinion poll in her course materials, but McBrearty declined, and continued to decline when her colleague pressed. After she complained about what she considered to be harassment to her supervisors, she learned that her contract would not be renewed. She filed claims of sex and disability discrimination in the Fayette County Circuit Court, but the court dismissed her claims. The Court of Appeals of Kentucky affirmed, holding that she was unable to demonstrate a prima facie case of either form of discrimination.



Murray v. Eastern Kentucky University Kentucky Court of Appeals (2009)

Employment discrimination, Gender discrimination

Phyllis Murray was a part-time and later full-time faculty member of Eastern Kentucky University. When she was hired to a full-time position, one of the terms of her contract was that she would obtain her doctorate within five years. During that period, she was diagnosed with breast cancer, and she received an extension on her doctoral requirement. Her request for a second extension was denied and subsequently she was fired for failing to obtain her doctorate. She brought suit against the university for gender and disability discrimination in the Madison County Circuit Court, but the court granted summary judgment in favor of her employer, finding that she failed to establish a prima facie case of either claim. Specifically, the court found that she failed to demonstrate that she was qualified for the position and that a similarly situated male colleague was treated more favorably. The Court of Appeals of Kentucky affirmed.



Withrow v. Calgon Carbon Corp. Kentucky Court of Appeals (2012)

Employment discrimination, Gender discrimination

Connie Withrow was employed as a floater technician at an industrial plant. One day she and a male coworker were assigned to light a furnace, but when they attempted to do so, there was an explosion. When Withrow was fired but her male coworker only received a 30-day suspension, she sued her employer, alleging that she was terminated because of her gender in violation of the Kentucky Civil Rights Act. The Boyd Circuit Court entered summary judgment in favor of the employer, finding that her employer had good cause to terminate her and that she was not similarly situated to her male colleague because she had a different role with more control during the explosion, was uncooperative during the investigation, and had more disciplinary issues on her record. The Kentucky Court of Appeals affirmed, holding that, though the trial court erred in finding that Withrow was not qualified for her job, her employer’s reason for firing her was not pretextual and that there was no evidence that the decision was based on her gender.



Thompson v. Louisville Metro Government Kentucky Court of Appeals (2013)

Employment discrimination, Gender discrimination, Sexual harassment

Dawn Thompson, an employee with the Louisville Department of Corrections, was approached by her immediate supervisor, Kevin Sidebottom, who wanted to begin a romantic relationship with her. After she rebuffed his advances, Thompson began to hear rumors that the two were romantically involved, which she denied. She was later denied a promotion to captain. Instead, the two promotions went to a woman who had the highest test scores and a man with lower test scores than Thompson. Thompson claimed that Sidebottom denied her promotion because she declined his romantic advances two years earlier. However, a higher-ranking officer claimed that he made the promotion decisions alone and declined to promote Thompson because of a recent EEO complaint against her, which was eventually dropped. Two months later, Thompson received a promotion to captain despite again hearing rumors about her romantic involvement with Sidebottom in addition to rumors that he had tried to prevent her promotion. After Thompson filed an EEO complaint, the department found that Sidebottom did not retaliate against her because he did not make the promotion decision. Thompson then sued the Louisville government and Sidebottom individually and in his professional capacity for sexual harassment, sex discrimination, and retaliation in violation of the Kentucky Civil Rights Act, but the Circuit Court granted summary judgment in favor of the defendants. The Kentucky Court of Appeals affirmed, holding that she was unable to demonstrate that the legitimate reason for her initial failure to be promoted was not the real reason she was denied, and in addition, failed to show that she suffered an adverse employment action.



Philpot v. Best Buy Kentucky Court of Appeals (2013)

Employment discrimination, Gender discrimination

Several Best Buy employees alleged that their supervisor sexually harassed them on three separate occasions. During the ensuing investigation, the three appellant-employees submitted a letter supporting their supervisor and stating that they had never seen him engage in improper conduct. While investigating the supervisor, Best Buy discovered allegations from five other employees that the three appellant-employees had also behaved in sexually inappropriate ways while at work. Best Buy hence suspended them pending an investigation and later terminated their employment after concluding the investigation. The employees brought suit against Best Buy for, among other claims, gender discrimination and sexual harassment in violation of the Kentucky Civil Rights Act. The Bullitt Circuit Court granted summary judgment in favor of Best Buy, and the Kentucky Court of Appeals affirmed, holding that the employees had not sufficiently established the elements of a prima facie case of either gender discrimination or sexual harassment.



Gray v. Kenton County Kentucky Court of Appeals (2014)

Employment discrimination, Gender discrimination

Three employees of the Kenton County Clerk’s office brought claims of sexual harassment in violation of the Kentucky Civil Rights Act against the County Clerk’s Chief Deputy in the Kenton County Circuit Court. The Chief Deputy had made a number of inappropriate comments to each employee over the course of their employment. The Circuit Court granted summary judgment in favor of the county, holding that even though the deputy had made inappropriate comments—the county had in fact asked him to resign over them—his comments were neither severe not pervasive enough to constitute a hostile work environment. The Kentucky Court of Appeals affirmed.



Ransom v. B.F. South, Inc. Kentucky Court of Appeals (2015)

Employment discrimination, Gender discrimination

Jacques Ransom was employed at one of several Wendy’s restaurants owned by B.F. South, but quit after one of her coworkers, “T.J.”, made several comments to other coworkers about Ransom’s gender reassignment surgery. When Ransom reported the comments to her supervisor, the store manager, the store and regional mangers met to discuss the situation and transferred T.J. to another Wendy’s location. Ransom was not fired or retaliated against; instead, she was promoted to crew leader and given a raise after lodging her complaint. She filed claims of hostile work environment and retaliation under the Kentucky Civil Rights Act. The Jefferson County Circuit Court granted summary judgment in favor of Ransom’s employer, and the Kentucky Court of Appeals affirmed, holding that the conduct of which Ransom complained did not rise to the level of actionable harassment because no adverse action was taken against her.



Tucker v. Bluegrass Regional Mental Health Retardation Board Kentucky Court of Appeals (2017)

Employment discrimination, Gender discrimination

Angela Tucker, a licensed clinical social worker, requested salary increases from her employer after five years, and again after seven years, of employment, but was denied both times. She informed the director of human resources that male staff members had received large raises, and her pay was subsequently increased fifteen percent, but soon she began to be harassed by her employer and to receive additional scrutiny without justification. After her employer determined that she had inappropriately filed an involuntary hospitalization form for one of her patients, her employer required her to complete a three-month correction plan; when she refused, her employment was terminated. She filed suit against her employer for gender discrimination and retaliation in violation of the Kentucky Civil Rights Act, but the Fayette Circuit Court granted summary judgment in favor of her employer. The Kentucky Court of Appeals affirmed, holding that she had failed to demonstrate a causal connection between her termination and her protected action (filing an EEOC complaint).



Commonwealth v. Solly Supreme Court of Kentucky (2008)

Employment discrimination, Gender discrimination

Donna Solly was employed as a limited-status teacher at Caldwell Area Technology Center. Her employment was not renewed. The reason her employer gave for her non-renewal was that she had had an affair with a male colleague. Solly filed suit in the Franklin County Circuit Court, alleging sex discrimination. The Circuit Court found in favor of her employer, but the Court of Appeals of Kentucky reversed and remanded, holding that she had established a prima facie case of sex discrimination. The Kentucky Supreme Court reversed the Court of Appeals, holding both that she had not established that her male colleague with whom she had had an affair was not similarly situated, and that her employer’s stated justification for firing her was not pretextual.



Banker v. University of Louisville Athletic Association, Inc. Supreme Court of Kentucky (2015)

Employment discrimination, Gender discrimination

Mary Banker, an assistant track coach at the University of Louisville, made a series of complaints about the conduct of male track coaches which she believed to be deprecating to women. When her contract was not renewed, she filed suit for retaliatory discharge, gender discrimination, and hostile work environment. The Jefferson County Circuit Court found for the university on the latter two counts, but awarded Banker damages for her retaliatory discharge. The Kentucky Court of Appeals reversed on the retaliatory discharge claim, but the Kentucky Supreme Court reversed the Court of Appeals, holding that Banker had established a prima facie case of retaliatory discharge, albeit in part through circumstantial evidence of causation.



Asbury University v. Powell Supreme Court of Kentucky (2016)

Employment discrimination, Gender discrimination

Deborah Powell was the women’s basketball coach at Asbury University who brought numerous complaints over several years to the university’s athletic director that the men’s team was receiving preferential treatment. Later, the university placed Powell on administrative leave allegedly for her having an inappropriate relationship with a female assistant coach. Powell brought suit under the Kentucky Civil Rights Act claiming that Asbury discriminated against her based on gender, defamed her, and retaliated against her for her complaints about her team receiving inferior treatment. The Jessamine Circuit Court ruled in Asbury’s favor regarding the discrimination and defamation, but in Powell’s favor on the retaliation claim. Both the Kentucky Court of Appeals and the Kentucky Supreme Court affirmed, holding that while the school had not engaged in gender discrimination, it had engaged in retaliation against Powell for her complaining about alleged gender discrimination, which is in itself unlawful.



The Board of Regents of Northern Kentucky University v. Weickgenannt Supreme Court of Kentucky (2016)

Employment discrimination, Gender discrimination

Andrea Weickgenannt was a faculty member at Northern Kentucky University who was denied tenure, despite receiving high marks in her employment evaluations. She was the only female accounting professor considered for tenure by the university in fifteen years. She brought suit alleging gender discrimination in violation of the Kentucky Civil Rights Act. The Campbell County Circuit Court granted summary judgment in favor of the university, and the Kentucky Court of Appeals reversed, but the Kentucky Supreme Court reversed the Court of Appeals and reinstated the Circuit Court ruling. The Supreme Court held that Ms. Weickgenannt had failed to demonstrate sufficiently that a male candidate was similarly situated.



Eubanks & Marshall, PSC v. Commonwealth Supreme Court of Kentucky (2016)

Gender discrimination

Kentucky law requires abortions to be performed at healthcare facilities licensed by the Cabinet for Health and Family Services, but private physicians’ practices are exempt from this licensing requirement. The Cabinet brought suit against EMW Women’s Clinic of Lexington, Kentucky, to force it to comply with the licensing requirement and requested a temporary injunction to prevent the clinic from performing abortions until the courts determined its legal status as either an abortion provider, which would require the license, or a private physician’s officer. The Fayette Circuit Court denied the Cabinet’s request for an injunction, but the Kentucky Court of Appeals reversed and imposed the requested injunction, finding that the Cabinet was entitled to a presumption of irreparable injury because it demonstrated a “reasonable probability” of injury without the injunction. The Kentucky Supreme Court affirmed, finding that the Court of Appeals had not abused its discretion.



Vizzi v. State Florida 3rd District Court of Appeal (1986)

Gender discrimination, Sexual violence and rape

Vizzi, an assistant public defender, was defending his client charged with sexual battery, kidnapping, and false imprisonment and referred to the victim as “a woman who’s trash, gutter filth.” After being admonished by the court, Vizzi proceeded to call the victim “a whore, a two-bit whore.” The prosecutor petitioned the court to instruct Vizzi not to call the victim a prostitute again and the trial court ruled, based on Florida’s Rape Victim Shield Statutes, that Vizzi was not permitted to attack the character of the victim by delving into her prior sexual behavior (other than prior sexual activity that the victim had with the defendant) or by calling the victim a prostitute, whore, or words of similar meaning. Vizzi later called the victim an “exhibitionist” and questioned the victim with respect to her “perform[ing] tricks with customers.” The trial court held Vizzi in contempt for violating its prior order and sentenced him to 5 days of jail time. The appellate court upheld the contempt order based on Vizzi’s failure to comply with the trial court’s ruling.  



O'Loughlin v. Pinchback Florida 1st District Court of Appeal (1991)

Employment discrimination, Gender discrimination

After disclosing her pregnancy to her employers, Pinchback, a correctional officer at a county jail, was terminated. As a reason for the termination, Sheriff O’Loughlin explained that while pregnant, Pinchback could not perform the duties of a correctional officer and was placing her baby’s health in danger. Pinchback petitioned Florida’s Human Rights Commission for relief pursuant to Florida’s Human Rights Act (which is patterned after Title VII). The Sheriff argued that Pinchback’s dismissal was based on the affirmative defense of “bona fide occupational qualification” (“BFOQ”), which requires that the employer demonstrate that the discrimination based on sex, religion, or national origin is “reasonably necessary to the normal operation” of the place of employment. The trial court found that the Sheriff violated Pinchback’s rights, which the appellate court upheld. The Court of Appeal explained that O’Loughlin’s actions were indefensible as there was no evidence that Pinchback (or any pregnant employee) could not perform her work as before. As a result, the court found Pinchback entitled to back pay and remanded the case for further proceedings to determine the back pay and benefits award.



Gainesville Woman Care LLC, et al. v. Florida, et al. Supreme Court of Florida (2017)

Gender discrimination

The Florida Supreme Court affirmed a trial court’s grant of temporary injunction blocking enforcement of the state’s Mandatory Delay Law. The law imposed a 24-hour waiting period on women seeking abortions. The Court explained that since the law implicated the fundamental right of privacy, it was automatically subject to strict scrutiny review. It found that the court of appeals had improperly put a burden on the challengers to establish that the law imposed a “significant restriction” on the right to privacy before applying strict scrutiny. The Florida Supreme Court observed that the state had presented no evidence of a compelling state interest or that the law served that interest through the least restrictive means.   



Jumbo v. Banja La Mtsogolo Industrial Relations Court of Malawi (2002)

Employment discrimination, Gender discrimination, Sexual harassment

The applicant, Salome Jumbo, claimed she was dismissed as a result of her pregnancy. In 1999, the applicant started as a temporary nurse aid at a clinic and continued in that position until 2001. In 2001, the manager of the clinic assured the applicant that her job had become permanent. On April 4, 2001, the manager discovered that the applicant was pregnant. He immediately warned the applicant that he would not allow her to keep her job if she remained pregnant, as they wanted a permanent nurse aid. The manager also enquired into the applicant’s private affairs and made inappropriate sexual remarks. On June 1, 2001, the manager terminated the applicant’s employment explicitly informing her that her termination was due to her pregnancy. The applicant asked for a reference letter, but the manager refused saying that she was a temporary employee and did not deserve one. The Industrial Relations Court of Malawi (the “Court”) ruled that the termination was contrary to the spirit of the Employment Act and ordered that the clinic immediately re-instate the applicant. The Court found that the respondent specifically violated the applicant’s rights under §31(1) of the Employment Act, which requires employers to provide a reference if the employee requests one on termination of an employment contract.  In addition, the respondent violated § 49 (1) of the Employment Act, which dictates that “terminating a woman’s employment because of pregnancy amount[s] to an offence [that is] punishable with a fine of K20,000 and imprisonment of five years” (p. 3). The Court also found that the manager’s inquiries into the applicant’s private affairs with her husband amounted to sexual harassment. This case is notable in Malawi because it set the precedent that inquiring into a married woman’s private affairs with her husband is an unfair labor practice.



Mwanza v. World Vision Malawi Industrial Relations Court of Malawi (2006)

Employment discrimination, Gender discrimination

The respondent employed the applicant on a fixed term contract as a data entry clerk. The applicant’s contract term was four years expiring on January 10, 2005. However, the respondent terminated her on December 22, 2003. The reason given for her termination was that she had become pregnant out of wedlock. The applicant challenged the dismissal and took legal action against the respondent. The respondent conceded that the reason for termination was invalid and asked the court to decide on a remedy. The applicant asked for reinstatement as the remedy. The Industrial Relations Court of Malawi (the “Court”) found that reinstatement was an inappropriate remedy because the applicant’s fixed contract had already lapsed in time. Instead, the Court awarded the applicant compensation for the employment benefits lost between the effective date of her termination (March 22, 2004) and the expiration of her contract (January 10, 2005). The Court cited § 63 (4) of Malawi’s Employment Act, which “provides that compensation shall be just and equitable” (p. 2). The Court awarded additional compensation to the applicant pursuant to §§ 63(5)(d), 57(3) and 49 of the Employment Act. Section 57(3) “prohibits discrimination on the basis of one’s sex, marital status or other status;” whereas, § 49 prohibits “dismissal on grounds of pregnancy (p. 3).”



Kaunda v. Tukombo Girls Secondary School Industrial Relations Court of Malawi (2007)

Employment discrimination, Gender discrimination

The applicant and her husband were both employed by the respondent as an accounts clerk and teacher, respectively. After the applicant’s husband resigned to join the Public Service, the respondent terminated the applicant’s employment contract noting that her employment was tied to her husband’s. The applicant challenged the dismissal alleging that it was invalid. The Industrial Relations Court of Malawi (the “Court”) found that the respondent discriminated against the applicant on the basis of her marital status. The Court reasoned that “the effect of the reason used by the respondent was to prevent the applicant from entering and sustaining an employment contract and pursuing a livelihood in her own right because she was married” (p. 2). In reaching its decision, the Court consulted § 5 of Malawi’s Employment Act and §§ 20, 24(1)(i), 24(2)(b) and 31 of Malawi’s Constitution. The Court held that the applicant’s termination was invalid because the reason for her termination “denied her right to engage in economic activity through employment” and “her right to fair labor practices” (p. 2). Therefore, the applicant’s termination was also prohibited under section 57(3)(a) of Malawi’s Employment Act. The Court awarded the applicant compensation for the unfair dismissal and discrimination.



The Republic v. Banda, et al. High Court of Malawi (2016)

Gender discrimination, Trafficking in persons

On February 23, 2016, 19 women were arrested by police and jointly charged “for the offence of living on the earnings of prostitution” in violation of § 146 of the Penal Code of Malawi (the “Penal Code”) ( ¶ 1.1). A Fourth Grade Magistrate in Dedza convicted them “on their own plea of guilt” and fined them MK 7,000.00 each (¶ 1.2). The police lacked evidence to prove the charge against them. In addition, the women did not have legal representation during the proceedings, including when their guilty plea was recorded. The women challenged the conviction on July 28, 2016 on numerous grounds including (i) that the Fourth Grade Magistrate did not have jurisdiction, (ii) that the women were charged together when they should have been charged separately, (iii) that the High Court should not have accepted a unanimous plea, (iv) that “the charge was wrong in law as living on the earnings of prostitution does not target the sex worker herself” but those who live parasitically and exploitatively off her earnings, and (v) that the plea of guilty should not be accepted because the court did not comply with mandatory procedures regarding the defendants’ knowledge. The High Court found that the Fourth Grade Magistrate did not have jurisdiction to hear the case. In addition, the Court held that the arrest of the women was unconstitutional and not based on evidence. Citing the legislative history of the offense, the Court clarified that § 146 of the Penal Code did not criminalize sex work but was mainly intended to protect sex workers from those who would exploit them. The High Court held that even though sex workers may be arrested in circumstances under this section, the arrest must be properly supported by evidence. Consequently, the High Court vacated the convictions and ordered that fines be repaid to the women. 



2014 (O) No. 1023 Supreme Court (Grand Bench) (2015)

Gender discrimination

The Civil Code requires a husband and wife to both adopt the surname of either the husband or the wife at the time of marriage. The plaintiffs in this case were five women who had either chosen to continue using their pre-marriage surnames, or who had had their notifications of marriage rejected for failing to choose a surname. The plaintiffs sued the State pursuant to the State Redress Act, arguing that the provision violated the Constitution and therefore the failure to take legislative measures to amend or abolish the provision was illegal. The District Court and the High Court dismissed the plaintiffs’ claims, and the Supreme Court affirmed. The Supreme Court found that 1) there is no constitutional right to freedom from being forced to change one’s surname upon marriage, 2) the provision does not formally create inequality between the sexes and the fact that the overwhelming majority of married couples choose the husband’s surname is not a direct consequence of the substance of the provision, and 3) the provision does not lack reasonableness nor restrict the individual dignity or the essential equality of the sexes. However, the Supreme Court also noted that while the current provision may not be unconstitutional, it does not mean that allowing married couples to choose separate surnames would be constitutionally unreasonable. 



2013 (O) No. 1079 Supreme Court (2015)

Divorce and dissolution of marriage, Gender discrimination

The plaintiff, who had divorced her former husband and remarried seven months later, sued the State claiming that she had suffered mental distress due to a provision in the Civil Code which barred women from remarrying until six months after the dissolution or rescission of her previous marriage. Both the District Court and the High Court dismissed the plaintiff’s argument, saying that the restriction was not necessarily unreasonable because it was meant to avert confusion over the paternity of any children born immediately after a divorce. The Supreme Court affirmed in part, holding that the provision violated the Constitution only to the extent that the restriction exceeded 100 days, because 1) the Civil Code already provided that a child born more than 200 days after the formation of a marriage or less than 300 days after the dissolution/rescission of a marriage would be presumed to have been conceived within the marriage, and 2) advances in medical technology and societal changes made it difficult to justify a restriction lasting beyond 100 days. However, the Supreme Court also affirmed the District Court and High Court in finding that the State was not liable in this case for failing to abolish the regulation, as this did not constitute an exceptional case that might incur liability under the State Redress Act. Shortly after this judgment, the Civil Code was amended to decrease the six month waiting period to 100 days.



Individual Application of Şükran İrge Constitutional Court (2016)

Custodial violence, Gender discrimination

Şükran İrge directly applied to the Constitution Court claiming that she and her two infants (one four months old and the other two years old) were illegal detained in a penal institution in unhealthy conditions in violation of the constitutional “prohibition of torture and mal-treatment.” The applicant requested the deferral of the execution of her punishment. The Constitutional Court decided that the institution she was held in, Diyarbakir, was not suitable for children or the applicant based on the incidents that Ms. İrge described and the fact that Diyarbakir, as the only penal institution for women in the region, was severely overcrowded. Accordingly, the Constitutional Court ordered the public authorities to take measures to protect the rights and interests of the applicant and her children and left the nature of those measures (i.e. improving the conditions of the penal institution, deferral of the execution of the punishment, or alternative measures) to the discretion of the public authorities. 



Individual Application of Ayla (Şenses) Kara Constitutional Court (2015)

Employment discrimination, Gender discrimination

The applicant, Ayla (Şenses) Kara, filed a complaint against a male co-worker, H.A., who insulted her. After filing her complaint, the applicant’s employer terminated her employment contract notwithstanding the fact that she had been the one who had been insulted. The Court of First Instance accepted the applicant’s complaint because her employment contract had been terminated “without any valid reason” and ruled that she should be re-hired. The Court of Appeals affirmed the lower court’s decision. Despite being ordered to re-hire the applicant, the employer failed to employ her. The applicant filed a lawsuit before the Court of First Instance to address her employer’s violation of that order. She claimed that she was dismissed as a result of gender discrimination while the male employee who should have been dismissed was allowed to stay on, which was a violation of her rights to equal treatment and a fair trial. The Court of First Instance rejected the lawsuit because it had already ruled on her termination and it was not possible for her to claim compensation based on the same event. The Court of Appeals also rejected her appeal which led to her individual application to the Constitutional Court. The Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for re-trial. The Constitutional Court rejected her claim that her right to equal treatment had been violated because there was inadequate evidence to find discriminatory intent. However, the Constitutional Court held that he right to a fair trial had been violated because of an unjustified judgement. The court found an unjustified judgement in her case because the lower courts had failed to properly assess her claim of gender discrimination. 



Individual Application of Hayriye Özdemir Constitutional Court (2015)

Divorce and dissolution of marriage, Gender discrimination

Ms. Özdemir had a child with her husband. After the finalization of her divorce and custody proceedings, gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance accepted the lawsuit on the grounds that the Constitutional Court had invalidated Article 4 of Surname Act, which said that a “the child would carry the surname that the father chose or will choose even if the custody of the child has been transferred to the mother following the divorce.” However, the Court of Appeals reversed the lower court’s decision citing Article 321 of the Turkish Civil Code No. 4721 which states that a child should carry the family name of the father, that a child’s name could only be changed in the father consented or if the child, when he/she reached lawful age, duly petitioned for such a change, and that the transfer of custody to the mother does not give the mother power to change the child’s last name. The Court of First Instance complied with the appellate court’s decision and rejected the lawsuit, leading to Ms. Özdemir’s individual application to the Constitutional Court. The Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for re-trial. The Constitutional Court dismissed that the applicant’s claim that her right to a fair trial had been violated by an unjustified judgement because of inadequate evidence. However, the Constitutional Court accepted her claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Özdemir the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of the Constitution. 



Individual Application of Mesude Kırıklı and Asil Akça Constitutional Court (2015)

Gender discrimination, Property and inheritance rights

Ms. Kirikli and Mr. Akça (the “Petitioners”) brought a land registration case against their uncle A.S requesting the annulment of a land transfer between their grandfather M.S. and A.S. The Petitioners claimed that M.S. had conducted a dubious transaction where he sold his land to A.S. in return for a very low price in order to prevent his late daughter’s children, the Petitioners, from inheriting the land. The Court of First Instance rejected their case on the grounds that whether M.S.’s motive was to cut his heirs off from their inheritance could not be proven and that it was reasonable that M.S., who had financial troubles at the time, sought to quickly relieve those troubles by selling his only asset for a considerably low price. The Court of Appeals agreed with the lower court, which led to the Petitioners’ application to the Constitutional Court. The Constitutional Court refused to hear the case because of a time limitation.



Individual Application of Nurcan Yolcu Constitutional Court (2015)

Divorce and dissolution of marriage, Gender discrimination

Ms. Yolcu had a child with her husband. After the finalization of her divorce and custody proceedings, which gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance found that a child’s last name could only be changed if the father consented or if the child, when he/she reached a lawful age, duly filed a petition for such change. The Court of Appeals approved the lower court’s decision upon appeal, which led to Ms. Yolcu’s individual application to the Constitutional Court. The Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for retrial. The Constitutional Court accepted Ms. Yolcu’s claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Yolcu the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of that same Constitution. 



Individual Application of Gülbu Özgüler Constitutional Court (2014)

Divorce and dissolution of marriage, Gender discrimination

Ms. Özgüler had a child with her husband. After the finalization of her divorce and custody proceedings, which gave her custody of the child, she petitioned the Court of First Instance to change the child’s last name to her maiden name. The Court of First Instance rejected her petition on the grounds that the transfer of custody to the mother was not grounds for changing a child’s last name. The Court of First Instance found that a child’s last name could only be changed if the father consented or if the child, when he/she reached a lawful age, duly filed a petition for such change. The Court of Appeals approved the lower court’s decision. After Ms. Özgüler’s individual application, the Constitutional Court set aside the lower courts’ decisions and remanded the case to the Court of First Instance for retrial. The Constitutional Court dismissed that the applicant’s claim that her right to a fair trial had been violated by an unjustified judgement because of inadequate evidence. However, the Constitutional Court accepted her claim that her right to private family life had been infringed. The Constitutional Court noted that marriage partners have equal legal standing pertaining to rights and responsibilities during marriage and after divorce. Consequently, the Constitutional Court held that giving the male partner the right to determine the child’s last name within the scope of custodial rights but withholding that right from the female partner with custody constituted discriminatory treatment without reasonable justification. Consequently, the Court of First Instance’s decision to deny Ms. Özgüler the right to determine the last name of a child over whom she had custody was a violation of the prohibition on discrimination provided in Article 10 of the Turkish Constitution in regards to a right provided to her in Article 20 of that Constitution. 



Individual Application of Albina Kiyamova Constitutional Court (2016)

Custodial violence, Gender discrimination, Gender-based violence in general

The applicant, Albina Kiyamova, was arrested at Atatürk Airport in Istanbul for infringing an order that prohibited her entry into Turkey. She submitted a complaint to the Chief Public Prosecutor's Office (the “CPPO”), asserting that the police subjected her to treatment incompatible with human dignity while she was in custody. Specifically, the applicant said that the police subjected her to a naked body search and other inhuman and degrading treatment charged by race and gender discrimination. The CPPO requested permission from the relevant authority to investigate the officers of the applicant’s treatment. However, the relevant authority denied the CPPO’s request. The applicant appealed the authority’s decision, but her appeal was rejected. She then appealed to the Constitutional Court, claiming that her constitutional right to protection from treatment incompatible with human dignity was infringed. The Constitutional Court partially rejected some of the applicant’s claims due to lack of evidence but accepted her claim that it was unjust for the relevant authority to reject her claims without conducting an investigation.



Individual Application of Gülşah Öztürk, et al. Constitutional Court (2016)

Custodial violence, Gender discrimination, Sexual harassment

In response to statements by the Turkish Prime Minister regarding abortion, the applicants demonstrated outside of the Ministry of Family & Social Policies of Turkey. The applicants asked for the Prime Minister and the Minister of Family & Social Policies to apologize for the statements. When police officers told the applicants that the Minister was not present in the Ministry building, the applicants tried, unsuccessfully, to enter the building using force. Following their failed attempt to enter the building, the Applicants headed to the Grand National Assembly of Turkey and blocked the road in front of it.  At this point, the applicants were arrested by police. The applicants allege that during the arrests they were injured and sexually harassed. They were held in custody for seven hours. Medical reports indicate that when they were released, each of the activists had several bruises on their bodies. The Office of Public Prosecutor (the “OPP”) failed to investigate the activist’s allegations of abuse, did not take the testimony of the police officers regarding this incident, and decided to not prosecute this case. The applicants appealed the OPP’s decision claiming gender discrimination, but their appeal was dismissed by the lower court. The Constitutional Court ruled that the force exerted by the police officers while they arresting the applicants was proportionate because the applicants had used force against the police officers. Furthermore, the Constitutional Court concluded that the bruises mentioned in the medical report indicate that police officers only used force to capture the applicants. Because of this, the Constitutional Court found that bruises were not evidence of sexual harassment. This case is important because it demonstrates that the Constitutional Court relies on the medical reports to judge allegations of sexual harassment.



Oloka-Onyango & 9 Others v. Attorney General Constitutional Court of Uganda (2014)

Gender discrimination

Petitioners sued, claiming the Speaker of Parliament allowed a vote to pass Anti-Homosexuality Act (“AHA”) of 2014 without the mandated quorum (alternatively “Coram”), which requires the presences of one-third of all voting Members of Parliament.  Petitioners also claimed the AHA was unconstitutional because it violated LGBTQ people’s right to privacy and freedom from cruel, inhuman, and degrading punishment.  The Court held that the Petitioners demonstrated that the vote proceeded without the necessary quorum, which meant Petitioners prevailed without the Court reaching the issues regarding the substance of the AHA.



Nabagesera & 3 Others v. Attorney General & Another High Court at Kampala (2014)

Gender discrimination

Members of Freedom and Roam Uganda (“FARUG”) sued the Attorney General and Minister of Ethics and Integrity Simon Lokodo for violating their constitutional rights to freedom of assembly, right to participate in peaceful civil society activity, and right to equal treatment before the law.  In February 2012, Minister Lokodo personally appeared at and ordered closed down a FARUG-hosted “project planning, advocacy, human rights, leadership, and business skills” workshop in 2012 on the grounds that the workshop was an “illegal gathering of [h]omosexuals.”  The respondents argued that Uganda Penal Code (sec. 148) prohibits homosexual acts, which includes the prohibition of direct or indirect encouragement, incitement, and conspiracy to commit the offense.  Citing the Uganda Penal Code, Constitution of Uganda, and African Charter of Human and Peoples’ Rights, the Court held that individual human rights are not absolute and may be restricted in the public interest as long as the restrictions do not amount to political persecution.  Calling the workshops “a pretext for human rights advocacy to promote homosexual acts which are prohibited by the Ugandan laws,” the Court rejected Applicants’ freedom of expression arguments because their activities constituted “offenses against morality” and “prejudicial to the public interest.”  In response to Applicants’ use of international human rights law, the Court held that Uganda’s “different laws and moral values” require different definitions and protections of the public interest than those cited in precedent from the UN, South Africa, the European Court of Human Rights, Hong Kong, etc.  The Court also rejected the suit against the Minister of Ethics and Integrity in his individual capacity because he was acting in his official capacity, meaning the Attorney General was the only proper respondent.



Mifumi (U) Ltd. & Another v. Attorney General & Another Supreme Court (2015)

Gender discrimination

On appeal from the Constitutional Court, the Supreme Court of Uganda held that the practice of asking for a bride price is constitutional but seeking a refund of the bride price as a precondition for the dissolution of a customary marriage is unconstitutional.  The Court did not agree with Appellants that bride prices promote inequality in marriage and hampers free consent to marry.  



Re Namugerwa & 2 Others High Court at Jinja (2010)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The aunt of three children applied for guardianship of the children and the land they inherited following the death of their father.  The Court was unable to determine some critical information, including whether the children had a surviving parent and the source of the funds the aunt used to care for the children.  The Court was also concerned that the children’s mother might be alive and the automatic guardian, but that the aunt was chosen because she was related to the children’s male parent.  Under most customary community traditions in Uganda, being a paternal ancestor would give the aunt guardianship priority over the mother.  The Constitutional Court found these practices unconstitutional.



Uganda v. Kafuruka High Court at Mbarara (2006)

Gender discrimination

The defendant injected a young woman with the intention to administer an abortion.  The woman and her fetus died.  The Court found the defendant guilty of murder of the deceased because the defendant had the intent to kill the fetus.  The Court reasoned that the intent to abort the fetus was sufficient to establish the mens rea element of murder.



Ragen, et al. v. Ministry of Transport, et al. Supreme Court (2011)

Gender discrimination, Sexual harassment

The petitioners sued the defendants for operating “mehadrin” bus lines for orthodox and ultra-orthodox Jews.  Petitioners argue that these bus lines discriminate based on gender by allowing men to board and sit in the front of the bus while requiring that women board by the rear door, sit in the back, and dress modestly.  Petitioners claim these restrictions violate their fundamental and constitutional rights to equality, dignity, freedom of religion, and freedom of conscience.  Petitioners refused to comply with the gender restrictions, which respondents claimed were not compulsory but voluntary and thus legal.  Petitioners, however, countered that the gender separation on mehadrin lines is not voluntary and that they were subjected to verbal harassment, threatened with physical violence, humiliated, and forced to leave the bus when they declined to observe the gender separation.  After the respondents agreed to an examination of public transportation arrangements on lines serving the ultra-orthodox sector by an independent committee and the committee delivered its analysis, the Court ordered respondent 1 to instruct respondent 2 to publicize the cancellation of the separation arrangements (within 10 days of the date on which the judgment was rendered), and ordered respondent 2 to carry out its instructions within 30 days of the judgment. Within that period of time, respondents 2 and 3 were to post signs regarding the cancellation in all buses formerly subject to “mehadrin” arrangements, without exception. 



Israel v. Ben-Hayim Supreme Court (2005)

Gender discrimination

The respondent, the manager of the Postmen Department at the Benei Berak branch of the Postal Authority, was acquitted of sexually harassing and victimizing a temporary employee, but convicted of unbecoming conduct. The Civil Service Disciplinary Tribunal (the “Tribunal”) found that the respondent promised to a promotion to the complainant, that he had conducted a sexual relationship with the complainant, and that he tried to prevent the complainant from making a complaint against him, which stated that he visited her apartment for several months and had sexual intercourse with her against her will.  As a result, the complainant felt exploited and humiliated. The Tribunal held that the State failed to prove that the respondent abused his authority. The Tribunal then approved the sentencing agreement that the parties reached, although it admitted it was lenient. On appeal by the state, the Supreme Court held that the respondent’s power to influence the professional future of the workers was considerable and that he held a position of considerable power over the complainant, who was 22 years old at the time of the conduct while the respondent was 20 years older than her, which added to the his control. It follows that the complainant consented to the sexual acts was given because the respondent abused his authority over her, and therefore it was not a voluntary and genuine consent but instead “prohibited consensual intercourse.”  The Court stated that “abuse of authority” need not involve a direct threat; in sexual harassment cases such abuse may be “express or implied, direct or indirect” and is no less potent if it is “in a veiled manner.”  The Court added a one-year suspension from any managerial position to the sentence imposed by the lower Tribunal, explaining that this still amounted to a lenient punishment for the offense committed.



E.S. v. A.C. Supreme Court of Namibia (2015)

Gender discrimination

The appellant, E.S., was a 38-year-old mother of three. She was practicing Jehovah’s Witness who consistently maintained that blood transfusions were against her religion. She told her obstetrician at her last pre-delivery appointment that she would refuse a blood transfusion if complications arose during delivery. After that appointment, E.S. gave her husband, also a Jehovah’s Witness, Durable Power of Attorney for Health Care. Nonetheless, her brother, A.C., filed an ex parte application to serve as her “curator to the person,” for the purpose of authorizing medical procedures on E.S., including blood transfusions after she suffered complications including a hysterectomy after giving birth. In support of his application, E.S.’s brother argued that, as a parent, E.S.’s individual autonomy had to be weighed against the interests of her family.  He also offered testimony from her doctor, who explained that her blood and oxygen levels were too low to support full brain function. The trial court granted the application. The Supreme Court addressed three issues: whether the matter was moot after E.S.’s medical recovery, whether the lower court erred in granting A.C.’s application to be appointed his sister’s curator and have blood transfusions administered, and whether young children’s right to be raised by their parents supersedes the right of an individual to refuse a blood transfusion in life-threatening circumstances.  The Supreme Court reversed the lower court, finding that “written advanced directives which are specific, not compromised by undue influence, and signed at a time when the patient has decisional capacity construe clear evidence of a patient’s intentions regarding their medical treatment” (¶56) and “the right to choose what can and cannot be done to one’s body, whether one is a parent or not, is an inalienable right” (¶ 71).  The court made clear that a woman’s status as a mother does not restrict her right to liberty and privacy, especially where decisions of medical treatment are involved.  



Ts'epe v. Independent Electoral Commission Court of Appeal of Lesotho (2005)

Gender discrimination

The plaintiff was a male citizen who planned to run for office. The electoral commission advised him that the seat he desired was reserved only for female candidates pursuant to the electoral quota instituted by the Local Government Election Act of 1998. The plaintiff challenged the constitutionality of the electoral commission’s refusal to register his candidacy based on his sex.  The High Court acknowledged that the Election Act disadvantaged men by reason of their sex alone. It also noted that, although 51% of the population of Lesotho was female, only 12% of the seats in the National Assembly were held by women. The Court ultimately upheld the constitutionality of the Election Act as a carefully designed measure intended to achieve the important national goal of increasing the number of women in the National Assembly.  



Eternal World TV Network v. Sec’y of the United States HHS United States Court of Appeals for the Eleventh Circuit (2015)

Gender discrimination

Plaintiff, the Eternal World TV Network—a Catholic network with 350 employees—was required to provide health insurance for its employees, which would include coverage for contraceptives, under the Affordable Care Act. Plaintiff contended that using or providing contraceptives violated a deeply-held tenant of its belief system and that the accommodation provided to religious nonprofit organizations under the Affordable Care Act still amounted to government coercion to change its beliefs. Plaintiff brought suit against the federal government, claiming that the Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act, which protects religious groups. The Eleventh Circuit found that the accommodation did not violate the Religious Freedom Restoration Act because, despite the plaintiff’s right to strict scrutiny review, the accommodation did not substantially burden the exercise of religious tenants and was the least restrictive method of furthering the compelling interest of reducing the rate of unplanned pregnancies. Plaintiff also argued that the accommodation violated the Free Exercise and Establishment Clauses of the United States Constitution, which the court denied, reasoning that the contraceptive mandate was generally applicable: it did not target specifically religious groups or particular denominations.



Videckis v. Pepperdine University United States District Court for the Central District of California (2015)

Gender discrimination

Plaintiffs were women’s basketball players for Pepperdine University, a university receiving state funding from California. Plaintiffs allege that when the basketball coach became aware of their lesbian relationship, they were harassed and forced by the athletic coordinator to end their relationship or quit the team. Defendant motioned to dismiss, citing Plaintiff’s failure to state a claim upon which relief could be granted. The court denied the motion, determining that sexual orientation discrimination claims are a subcategory of gender stereotyping and are therefore actionable claims under Title VII and Title IX.



Doe v. Hagenbeck United States District Court for the Southern District of New York (2015)

Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape

The plaintiff is a female former cadet at the United States Military Academy at West Point, where she claimed that she was forced to resign after her third year due to rampant sexual hostility. In May 2010, she was raped while at West Point after she took sleeping pills and she also cites several other instances of sexual assault and harassment, claiming that members the Sexual Assault Review Board at West Point failed to punish the perpetrators. The District Court found that the plaintiff had properly stated an equal protection claim under the Fourteenth Amendment of the United States Constitution, affording women the same protections under the law as men. The District Court also found that hearing the claim was not precluded by Feres Doctrine, which typically bars tort claims under the Federal Tort Claims Act and constitutional claims against superior officers incident to military service, since the rape was not a service-related injury and hearing the claim would not compromise the legislative or executive functions of government, including the disciplinary role of the Executive Branch over the nation's military. Therefore, the court denied the defendant’s motion to dismiss.



Morales-Santana v. Lynch United Court of Appeals (2015)

Gender discrimination

Morales-Santana sought review of a decision made by the Board of Immigration Appeals denying his motion to reopen his removal proceedings to evaluate his claim of derivative citizenship. Morales-Santana’s derivative citizenship claim was based on the Immigration and Nationality Act of 1952 (18 U.S.C. §1409). The 1952 Act differentiates how fathers and mothers can confer citizenship to their children. An unwed citizen mother confers citizenship on her child as long as she had been resident in the United States for a year continuously before the child’s birth. An unwed citizen father, however, cannot transfer citizenship to his child born abroad if he was not present in the United States before the child’s birth for a total of ten years. Additionally, five of the father’s ten years in the United States must be after his fourteenth birthday. Therefore, it was impossible for a father under the age of eighteen to confer citizenship to a child born abroad of a non-citizen mother. In this case, Morales-Santana’s father satisfied the requirements for transmitting citizenship applicable to unwed mothers but not the more stringent requirements applicable to unwed fathers. The Second Circuit Court of Appeals found this disparate treatment a violation of the Fifth Amendment’s guarantee of equal protection and reversed the Board of Immigration Appeals decision.



Hariharan v. Reserve Bank of India Supreme Court of India (1999)

Gender discrimination

Ms. Githa Hariharan was married to Dr. Mohan Ram and they had a son named Rishab. She applied to the Reserve Bank of India (RBI) for bonds to be held in the name of their minor son Rishab and had signed off as his guardian. The RBI sent back the application to her advising her to either produce the application signed by the father of Rishab or produce a certificate of guardianship from a competent authority in her favor. RBI was of the opinion that Dr. Mohan was the natural guardian of Rishab on the basis of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA). That provision stated that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father. Ms. Hariharan challenged the constitutional validity of this provision in the Supreme Court on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution. The Supreme Court, relying on gender equality principles enshrined in the Indian Constitution, CEDAW and UDHR, widely interpreted the word “after” in the provision and upheld the constitutional validity of Section 6(a) HMGA, 1956. It held that both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child, which is legislative intent of HMGA, 1956. This case is important because it established for the first time that a natural guardian referred to in the HMGA, 1956 can be a father or a mother: whoever is capable of and available for taking care of the child and is deeply interested in the welfare of the child, and that need not necessarily be the father.



Edwards v. Beck Eighth Circuit Court of Appeals (2015)

Gender discrimination

Abortion-providing physicians in Arkansas filed a 18 USC §1983 action in District Court seeking a permanent injunction against Arkansas Code Ann §20?16?1203(a), which revokes the license of physicians who perform abortions of fetuses beyond the point when the fetal heartbeat can be detected, about 12 weeks. The physicians were granted the injunction, and the State appealed. The Eighth Circuit Court of Appeals upheld the injunction, finding that this statute violated women’s right to terminate pregnancy as set out in Roe v. Wade, which allows for abortion up to the point of fetal viability. The court also notes that viability should be determined on a case-by-case basis and that viability is being pushed sooner and sooner with advancing medical research.



MKB Management Corp. v. Stenehjem Court of Appeals for the Eighth Circuit (2015)

Gender discrimination

Red River Women’s Clinic, a subsidiary of MKB Management Corp. was the only abortion provider in the state of North Dakota. MKB Management Corp. challenged a North Dakota law which prohibited abortions following determination of fetal heartbeat. The District Court ruled that the North Dakota law infringed a woman’s constitutional right under the Due Process Clause of the Fourteenth Amendment to terminate pregnancy before viability which was established in Roe v. Wade and Planned Parenthood v. Casey. The United States Court of Appeals for the Eighth Circuit affirmed.



Mohd. Ahmed Khan v. Shah Bano Begum Supreme Court of India (1985)

Divorce and dissolution of marriage, Gender discrimination

Ms. Shah Bano Begum was married to a lawyer named Mr. Mohd. Ahmed Khan. They lived together for 43 years and had five children. In 1978, Mr. Khan threw Ms. Begum out of the shared household and Ms. Begum applied for maintenance from Mr. Khan under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C, 1973). Pending her application, Mr. Khan dissolved the marriage by pronouncing a triple talaq (divorce on the triple utterance of the word “talaq” by a Muslim husband) and paid Ms. Begum 3000 rupees as mahr (money/valuable property promised to a Muslim woman for her financial security under the marriage contract) and a further sum of maintenance for the iddat period (a period of 3 months that a Muslim woman has to observe before she can remarry after her divorce). Mr. Khan argued that Ms. Begum’s claim for maintenance should be dismissed as Ms. Begum had received the amount due to her on divorce under the Muslim personal law. The lower court granted Ms. Begum’s claim for maintenance, which was set at 179 rupees per month by the High Court in a revision application. Mr. Khan appealed to the Supreme Court in 1985 and the Court held that a payment made pursuant to personal laws cannot absolve a husband of his obligation to pay fair and reasonable maintenance under Section 125 Cr.P.C, 1973 and a husband can be liable to pay maintenance beyond the iddat period.



Voluntary Health Association of Punjab v. Union of India Supreme Court of India (2013)

Gender discrimination

The Parliament of India enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Act of 1994 as a measure of preventing female feticides and as a form of affirmative action for women and girls to end discrimination against girl children in furtherance of the constitutional principle of equality under Article 15 of the Indian Constitution. The Supreme Court in 2001 and 2003 noticed a lack of effective implementation and misuse of the Act and thus had issued directions to the Union Government and the State Governments for its proper implementation. Having noticed a decline in the female child sex ratio as reported in the 2011 Census, the Court directed personal appearance of the Health Secretaries of the States of Punjab, Haryana, NCT Delhi, Rajasthan, Uttar Pradesh, Bihar and Maharashtra, to examine steps undertaken for effective implementation of the provisions of the Act as well as the various directions issued by the Court. The Court emphasized that women have the equal right of thinking, participating and becoming leaders in the society, stating that the purpose of the Act can only be realized when government authorities carry out their functions with commitment to and awareness about the role of women in a society. After a detailed analysis of the steps undertaken by the Union and the State Governments, the Court issued directions—including regular monitoring and reporting by authorities under the Act, faster disposal of cases filed under the Act, and suspension of licenses to practice for convicted doctors—to ensure implementation.



Yousuf v. Fairview Health Services Court of Appeals for the Eighth Circuit (2015)

Gender discrimination

Plaintiff Khadara-Ayan Yousuf, a U.S. citizen and a Muslim woman of Somali national origin, sued her former employer, Fairview Health Services for discrimination based on race, sex, pregnancy, religion, and national origin in violation of Title VII, 42 U.S.C., and 42 U.S.C. § 1981. Fairview Health Services, her former employer, alleged that they terminated her employment when she allegedly did not return from a leave of absence. Plaintiff claimed discrimination as violations of Title VII and 42 U.S.C. §1982. She appealed the district court’s grant of summary judgment in favor of the defendant. The Court of Appeals partially vacated the judgment with respect to the sex and pregnancy discrimination citing that Title VII has been amended via the Pregnancy Discrimination Act to prohibit employers from discriminating against a woman for her capacity to become pregnant, not merely because she is pregnant.



Latifi v. Union Of India Supreme Court of India (2001)

Domestic and intimate partner violence, Gender discrimination

The Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA, 1986) seemed to overrule the Supreme Court’s decision in Mohd. Ahmed Khan v. Shah Bano Begum. Pursuant to a prima facie reading of the MWPRDA, 1986, a Muslim husband was responsible to maintain his divorced wife only for the iddat period and after such period the onus of maintaining the woman would shift on to her relatives. The matter resurfaced before the Supreme Court in Danial Latifi v. Union Of India when the constitutional validity of the MWPRDA, 1986 was challenged on the grounds that the law was discriminatory and violative of the right to equality guaranteed under Article 14 of the Indian Constitution as it deprived Muslim women of maintenance benefits equivalent to those provided to other women under Section 125 of Criminal Procedure Code, 1973. Further, it was argued that the law would leave Muslim women destitute and thus was violative of the right to life guaranteed under Article 21 of the Indian Constitution. The Supreme Court, on a creative interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the iddat period. The Court based this interpretation on the word “provision” in the MWPRDA, 1986, indicating that “at the time of divorce the Muslim husband is required to contemplate the future needs [of his wife] and make preparatory arrangements in advance for meeting those needs” (at 11). This case is important because, it established for the first time that a Muslim husband’s liability to provide maintenance to his divorced wife extends beyond the iddat period, and he must realize his obligation within the iddat period, thereby striking a balance between Muslim personal law and the Criminal Procedure Code, 1973.



Rosati v. Igbinoso Court of Appeals for the Ninth Circuit (2015)

Gender discrimination

Pro se plaintiff Rosati, a transgender female, was imprisoned in California and suffering from Gender Dysphoria. Prison officials refused to provide the medically necessary gender reassignment surgery. The prison officials denied the gender reassignment surgery on the recommendation of a physician’s assistant who had no experience in transgender medicine and in spite of the plaintiff attempting repeated self-castrations. The district court dismissed without leave to amend for failure to state a claim on which relief could be granted. The Ninth Circuit reversed the dismissal citing that the prison officials were deliberately indifferent to the serious medical need of the inmate and that such conduct was a violation of the Eighth Amendment right to be free from cruel and unusual punishment, and that a plausible claim for relief was stated.



Quartson v. Quartson Superior Court of Judicature (2012)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Ms. Quartson filed for divorce, seeking that Mr. Quartson vacate the home they shared during the marriage. Mr. Quartson solely funded the construction of the house, but Ms. Quartson was the sole supervisor of the home’s construction, ensuring that it was built satisfactorily and taking care of their three children while he was away working as a seafarer. Based on these facts, the Superior Court overturned a trial court decision granting the home to Mr. Quartson, instead holding that because Ms. Quartson ran the household and supervised its construction while her husband was away, she should be entitled to a share of the home’s value. Although there may be circumstances that demonstrate clear evidence that a spouse is not entitled to the property, the Court also held that such circumstances did not exist in the present case. The Court found that Ms. Quartson had interest in the property, and granted her the home.



Kennedy v. Cain Court of Appeals for the Fifth Circuit (2015)

Gender discrimination

Petitioner was convicted of aggravated rape of a child. In his appeal he argued that the state of Alabama had systemic sex discrimination in the selection of jury forepersons. In a ten year period of time, there were nineteen jury forepersons: twelve were male while seven were female. The petitioner brought a habeas corpus claim citing improper jury foreman election. The Fifth Circuit determined that the petitioner had shown substantial underrepresentation of female forepersons and that no specific disparity percentage was sufficient enough to show substantial underrepresentation but that factors such as disparity, population size, demographics of selection population should be taken into account.



Mensah v. The Republic Court Martial Appeal Court (2009)

Employment discrimination, Gender discrimination

In 2008, Mr. Mensah married ABI Dosu Theresa when they were both members of the Ghana Armed Forces. Because Mr. Mensah was an officer and Theresa was a female of a different rank, the marriage violated the Armed Forces Act, which requires that for a male officer to marry a lower-ranked woman, the woman must first resign and obtain the “requisite prior approval for her release from the Ghana Armed Forces.” Mr. Mensah was thus dismissed from the Armed Forces. The Court upheld the dismissal, holding that the law was not discriminatory and was a justified means that the Armed Forces used to maintain discipline.



Planned Parenthood of the Heartland Inc. v. Iowa Board of Medicine Supreme Court of Iowa (2015)

Gender discrimination

The Iowa Board of Medicine (“Board”) passed a rule of professional practice that prohibited telemedicine abortions, which are non-surgical abortions overseen by a medical practitioner via audio-visual connection. Planned Parenthood of the Heartland brought a claim against the Board citing that the prohibition of telemedicine abortions violated the equal protection clause by placing an undue burden on women seeking to exercise their right to terminate a pregnancy. The Iowa Supreme Court determined that the Board’s prohibition of telemedicine abortions would unduly limit rural women in Iowa from exercising their right to terminate a pregnancy. Additionally, the Court determined that the Board’s actions were politically motivated and did not constitute sound public policy given that trained professionals administered a physical examination and follow-up appointments were mandatory.



Amponsah v. Nyamaah Superior Court of Judicature (2009)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

Mrs. Amponsah filed for divorce from her husband Mr. Nyamaah. She asked that a property the couple held be partitioned and that she receive her portion of its value. Mr. Nyamaah asserted that the house belonged to his father, who then granted the land to him. He argued that Mrs. Amponsah had no interest in the house, relying on a precedent which held that “a wife by going to live in a matrimonial home, the sole property of the husband, did not acquire any interest therein. She only had a right to live in the matrimonial home as long as the marriage subsisted.” The court held that Mr. Nyamaah’s father was the owner of the house because the papers were in his name, and rejected the evidence that both parties paid water and electric bills as a rebuttal to the presumption. As such, the house was not subject to a partition by the court, because it “did not belong to the couple so it could not be settled on either of the parties.”



Avendano-Hernandez v. Lynch Court of Appeals for the Ninth Circuit (2015)

Gender discrimination, Gender-based violence in general, Sexual violence and rape

Plaintiff was a transgender woman from Mexico who was subjected to sexual assault and rape by Mexican police and military throughout her life. In 2006, she was arrested in America for driving under the influence. In 2007 she was deported to Mexico. After suffering more mistreatment in Mexico, Avendano-Hernandez returned to the U.S. and appealed for asylum under the United Nations Convention Against Torture. She reentered the United States in May 2008 and was arrested three years later for violating the terms of probation imposed in her 2006 felony offense for failing to report to her probation office. Plaintiff applied for withholding of removal and relief under the Convention Against Torture but the immigration judge denied her request for failing to show that the Mexican government would more likely than not consent to or acquiesce in her torture, which was confirmed by the Board of Immigration Appeals. On appeal, the Ninth Circuit reversed the decision with respect to the Convention Against Torture application because it was enough for Avendano-Hernandez to show that she was subject to torture at the hands of local officials. Additionally, the immigration judge relied on recent anti-discrimination legislation; however, the judge did not consider the legislation’s effectiveness. Therefore, Plaintiff should be given relief under the Convention Against Torture.



State of Maharashtra v. Indian Hotel & Restaurants Association Supreme Court of India (2013)

Employment discrimination, Gender discrimination

The Bombay Police Act, 1951 was amended in 2005 with the object of securing public order, morality, dignity of women, and reducing exploitation of women including trafficking of minor girls. Section 33A was inserted that prohibited performance of all types of dance in eating houses or permit rooms or beer bars. Section 33B was inserted that permitted three star hotels and Government associated places of entertainment to hold dance performances. The Indian Hotel & Restaurants Association filed a writ petition challenging Section 33A of the Bombay Police Act, 1951 before the Bombay High Court on the grounds that such prohibition: (a) discriminates against women employed to dance in eateries and bars and those employed to dance in three star hotels and government establishments; (b) interferes with their right to work and right to earn a livelihood, and thus is violative of the Indian Constitution. The Bombay High Court held that Section 33A is violative of Articles 14 (equality) and 19(1)(g) (right to work), of the Indian Constitution. The Government of Maharashtra filed an appeal before the Supreme Court and prayed that the terms “All dance” found in Section 33A be read down to mean “dances which are obscene and derogatory to the dignity of women” instead of striking it off altogether to ensure that the right to work of women is not interfered with. The Supreme Court upheld the judgement of the Bombay High Court. It declared that Section 33A violates Article 14 the Constitution of India on the ground that such law is based on an unacceptable presumption that the so-called elite (i.e. rich and the famous) have higher standards of decency, morality or strength of character than their counterparts who have to content themselves with lesser facilities of inferior quality in the dance bars. It declared that Section 33A violates Article 19(1)(g) on the ground that it interferes with the right of women to work and that, contrary to the ban’s purpose, it resulted in forcing some women into prostitution. The Court further urged the government to take affirmative action to ensure the safety and improve the working conditions of the persons working as bar dancers who primarily constitute of women.



Stuart v. Camnitz Court of Appeals for the Fourth Circuit (2015)

Gender discrimination

North Carolina passed a law, the Right to Know Act, which required physicians in North Carolina to show a woman seeking an abortion a live-feed of her ultrasound between four and seventy-two hours before an abortion and to describe the fetus in detail including dimensions and location of the fetus. A coalition of doctors and Planned Parenthood sued the President of the North Carolina Medical Board, the Secretary of Health and Human Services for North Carolina, the American Medical Association, and other similar entities. The district court granted summary judgment and an injunction for the plaintiffs. On appeal, the Fourth Circuit affirmed, citing that the requirement that doctors perform and display real-time ultrasounds was unconstitutional as it did pass intermediate scrutiny. Additionally, the requirement violated the doctor’s First Amendment right to freedom of speech as the state is delivering a message that the woman should reconsider having an abortion, albeit compelling speech through the third-party doctors.



福建林某某、楼某某强制污辱妇女案,福建光泽县人民法院 (Fujian Province v. Lin, Lou) People’s Procuratorate of Guangzhe District Court (2013)

Gender discrimination, Gender violence in conflict, Gender-based violence in general, Sexual harassment

In 2013, a teenage girl name Lin gathered two other girls to get revenge on another girl, C., at Guangze senior high school, Fujian Province, for insulting her. C. hid and so their plan for revenge was unsuccessful. Later that day, Lin asked someone else to take C. to a quiet neighborhood. Lin and her friend slapped C.'s face, broke her nose, pulled her hair, and made C. take off all her clothes. C. was too frightened to say no and took off all her clothes. Lin and her friend took pictures of the naked C. and shared the photos. Guangzhe District Court found that Lin and her friends assaulted the victim C. According to Article 237, Criminal Law of the People’s Republic of China, Lin and her friend were convicted of humiliating a woman with force and coercion. Lin was sentenced to two-years’ imprisonment, with a full suspension of the sentence. Lin’s friend, Lou, was sentenced to one-year jail time with a full suspension of the sentence. The court said that because both the defendants and the victim were under age of 18, and because the defendants were willing to cooperate with the police, tell the truth, and plead guilty, the court under Article 63, Article 67, Article 72, and Article 73 of Criminal Law of People’s Republic of China to give the two defendants a mitigated punishment of community service. The court demanded that the defendants delete all the naked photos of the victim. After the crime, the defendants’ families compensated the victim and the victim forgave the defendants.

性别歧视、性暴力、性骚扰

2013年,被告人林某某认为其被陈某某辱骂,纠集楼某某、 黄某某(均为未成年女性),到福建省光泽县某中学找该校学生陈某某(女, 未成年)欲行报复。因陈某某警觉躲藏,林某某等人寻找未果。当日晚, 林某某通过他人将陈某某约出并带到光泽县某超市后面的巷子里。

林某某与楼某某先后对被害人实施打耳光、拉扯头发等殴打行为,致使被害人鼻子流血, 并叫被害人“把衣服脱光”。陈某某因害怕哭泣而不敢反抗,遂将衣裤脱光。林某某与楼某某及在场的另二名女学生对被害人围观取笑。其间楼某 某使用手机对陈某某的裸体拍摄了十余张照片并将照片传送给他人。法院经审理认为,被告人楼某某、林某某伙同他人聚众以暴力方法强制侮辱妇女,根据中华人民共和国刑法第二百三十七条,其行为已构成强制侮辱妇女罪。法院院综合考虑被告人作案时均不满十八周岁,主动归案并如实供述犯罪事实,根据刑法第六十三、六十七、七十二和七十三条,决定依法对被告人减轻处罚并适用缓刑。以强制污辱妇女罪判处林某某有期徒刑二年,缓刑二年;判处楼某某有期徒刑一年,缓刑一年。 法院要求被告人删除被害人裸照。被告人家庭案发后积极赔偿并取得对方谅解。



Nese Aslanbay Akbiyik Basvurusu, Case Application Number: 2014/5836 Constitutional Court of Turkey (2015)

Gender discrimination

The petitioner filed a claim to the Turkish Constitutional Court stating that trial and appellate courts’ refusal to allow her use her pre-marriage surname after marriage violated her right to protection of her private life and discriminated against her based on her gender. Article 187 of the Turkish Civil Code requires married women to use their husband’s surname after marriage, which created complications in the petitioner’s professional life since she was known by her pre-marriage name. On appeal, the Constitutional Court applied both Turkish law and international law to find that a person’s right to a name, including their surname, is an inalienable right. The Court looked to precedent from the European Court of Human Rights in finding that protection of a person’s name including person’s surname is covered by Article 8 (respect for private and family life). The Court also found that the protections afforded by Article 17 of the Turkish Constitution overlapped with the protections in Article 8 of the European Convention on Human Rights. Consequently, the Court concluded that, since the right to one’s name is protected in the Turkish Constitution and within the scope of international agreements to which Turkey is a party—including the European Convention of Human Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Civil and Political Rights—men and women are entitled to equal rights to use their pre-marriage last name.



Teamsters Local Union No. 117 v. Washington Dept. of Corrections Court of Appeals for the Ninth Circuit (2015)

Gender discrimination, Gender-based violence in general, Sexual harassment, Sexual violence and rape

Female prisoners in Washington prisons alleged sexual abuse by the prison guards. As a remedial remedy, the Department of Corrections designated 110 positions as female-only. These female-only positions include observing female prisoners in sensitive locations, such as showers, as well as performing pat downs. The union of correctional officers sued the Department for Title VII violations for sexual discrimination in employment. The district court granted summary judgment for the Department. The Circuit Court affirmed citing sex as a bona fide occupational qualification for those positions given that sexual abuse is present in prisons and positions which require observing prisoners in sensitive areas or tasks can be performed by females only in order to protect female prisoners from abuse.



Schiavo v. Marina Dist. Development Co., LLC Superior Court of New Jersey Appellate Division (2015)

Employment discrimination, Gender discrimination, Sexual harassment

Twenty-one former employees of the defendant’s hotel and casino alleged sexual discrimination, gender stereotyping, and disparate treatment and impact as a result of their employer’s standards for appearance. The casino instituted a standard weight applicable to men and women (which was 7% above a base rate adjusted for gender). The women’s job was to bring drinks to casino patrons, and to do so wearing a revealing costume. The plaintiffs reported incidents of sexual harassment by casino patrons to their employers, who did not address the incidents. The lower court granted summary judgment to the casino on the complaints of facial discrimination citing the statute of limitations. However, the appellate court determined that the summary judgment was in error, as it did not take into consideration that the plaintiffs’ claim that the employer ignored sexual harassment by casino patrons, creating a hostile work environment was a continuing violation. Because one of the alleged acts occurred within the two years prior to filing the case, the case is thus not time-barred.



Sarma v. V.K.V. Sarma Supreme Court of India (2013)

Domestic and intimate partner violence, Gender discrimination

Ms. Indra Sarma, an unmarried woman, left her job and began a “live-in” relationship with Mr. V.K.V. Sarma for a period as long as 18 years, despite knowing that he was married. Mr. Sarma abandoned Ms. Sarma in a state where she could not maintain herself. Under the Protection of Women from Domestic Violence Act, 2005, failure to maintain a woman involved in a “domestic relationship” amounts to “domestic violence.” Two lower courts held that Mr. V.K.V. committed domestic violence by not maintaining Ms. Sarma, and directed Mr. Sarma to pay a maintenance amount of Rs.18,000 per month. Thereafter, on appeal, the High Court of Karnataka set aside the orders of the lower courts on the ground that Ms. Sarma was aware that Mr. Sarma was married and thus her relationship with him would fall outside the protected ambit of “relationship in the nature of marriage” under the Protection of Women from Domestic Violence Act, 2005. On further appeal, the Supreme Court, while affirming the High Court’s order, created an exception to the general rule. The Supreme Court clarified that a woman who begins to live with a man who is already married to someone else, without knowing that he is married, will still be considered to be in a “domestic relationship” under the Protection of Women from Domestic Violence Act, 2005; thus, the man’s failure to maintain her will amount to “domestic violence” within the meaning of the Act and she will be eligible to claim reliefs such as maintenance and compensation. This case is important because it established for the first time such an exception and calls for legislative action to protect women like Ms. Sarma whose contributions in a joint household are often overlooked.



Wilcox v. Corrections Corp. of America Court of Appeals for the Eleventh Circuit (2015)

Gender discrimination, Sexual harassment

Wilcox worked as a corrections officer at McRae Correctional Facility with her husband. After her husband was fired, Wilcox alleged that she was subject to sexual harassment by her supervisor. She alleged that her supervisor caressed her, touched her thighs and referred to them in evocative language, slapped her buttocks in front of other employees, and discussed his female friend’s genitalia with her. Wilcox complained to the EEOC that her supervisor’s actions created a hostile work environment. The Circuit Court agreed, citing that all five requirements for hostile work environment were met: 1) that the complainant belong to a protected group 2) that the complainant was subject to sexual harassment 3) the harassment was based on the sex of the complainant 4) the harassment was sufficiently pervasive or severe to change the conditions of employment and create an abusive working environment 5) a basis for holding the employer liable.



Roe v. Patton United States District Court for the District of Utah (2015)

Gender discrimination

Plaintiffs Kami and Angie Roe sued the Executive Director of the Utah Department of Health in his official capacity and sought a preliminary injunction seeking a court order to enjoin the defendants from applying sections of the Utah Uniform Parentage Act differently to male and female spouses of women who become pregnant via sperm donation. The provisions of the Utah statute provide that a married man can become the legal parent to a child conceived by his wife through sperm donation by filing mutual consent in writing, but defendants have declined to apply this same rule to a married woman in respect to her wife. Instead, they have required that she undergo a step-parent adoption process. The court balanced the failure of defendants to provide a rational basis for the unequal treatment with the fact that the plaintiffs and similarly situated wives would suffer irreparable harm if the injunction to compel the defendants to equally apply the statute was not granted. As such, the court granted the preliminary injunction.



Ross v. Commonwealth of Kentucky Supreme Court of Kentucky (2015)

Gender discrimination

Cole Ross was convicted of murder and arson. He appealed his conviction claiming, among other things, that the Commonwealth of Kentucky used its preemptory challenges to dismiss female jurors on the basis of gender. Seven out of the nine peremptory challenges used by the Commonwealth to remove prospective jurors were used to dismiss women. The trial court found that the Commonwealth’s justifications were gender neutral and non-pretextual. On appeal, the Supreme Court of Kentucky found that the disproportionate striking of women jurors and the Commonwealth’s admission during jury selection that they wished to dismiss female jurors created the inference of gender discrimination. The Supreme Court of Kentucky found that this inference was not rebutted by a gender-neutral justification, thereby constituting a Batson violation. Accordingly, the Commonwealth violated the Equal Protection Clause by denying the women the right to be on a jury on the basis of their gender and thus the case was remanded to the trial court for further proceedings



Hema Vijay Menon v. State of Maharashtra Bombay High Court (2015)

Gender discrimination

Mrs. Hema Vijay Menon, a married woman and a highly qualified lecturer, lost her only son who was 15 years old. She and her husband decided to have a child through the means of In Vitro Fertilization (IVF). On the failure of the IVF procedure, she and her husband decided to have a child through surrogacy. On the birth of her baby through a surrogate, Mrs. Menon applied for maternity leave. The concerned government authorities disapproved her leave on the grounds that there was no provision of granting maternity leave to a mother who begets a child through surrogacy. The Bombay High Court held that a mother is entitled to avail of maternity leave under Maharashtra Civil Services (Leave) Rules, 1981, even though she begets the child through surrogacy, on the basis that the right to motherhood is a fundamental right to life guaranteed under Article 21 of the Indian Constitution and cannot be violated. This case is important because it recognized for the first time in explicit terms that the right to motherhood is a fundamental tenet of the right to life and thus deserves protection under Article 21 of the Indian Constitution.



Decision T-946/08 Constitutional Court of Colombia (2008)

Gender discrimination

The plaintiff’s daughter suffered from Prader Willi syndrome or Down Syndrome and was mentally disabled. The mother noticed changes in her daughter’s body and discovered that she had been pregnant as a result of rape. The mother asked the healthcare provider to terminate pregnancy and filed a writ of constitutional challenge after her request was denied by the healthcare provider on conscientious objection. The Court of First instance denied the writ on the grounds that there was no medical certificate showing that the daughter’s life was jeopardized by the pregnancy, that the fetus had deformities, or that a crime had been reported. The mother appealed the decision and stated that Decision C-355 of 2006 specifically contained a rape prong as a ground for requesting voluntary termination of pregnancy. The Court of Second Instance also denied abortion on the grounds that even though a rape may have occurred, the pregnancy had reached an advanced gestational age (25 or 26 weeks). The Constitutional Court found for the plaintiff mother and held that the healthcare provider violated the rights of the daughter, a victim of a violent sex crime. The Court ruled that conscientious objections must be made with sufficient number of professionals in a network and may only be claimed by natural persons, that the healthcare provider must provide the service in a timely manner, i.e., within five days of request (so as to not let the pregnancy be carried to term), failure to perform the procedure under discriminatory circumstances carry the consequence of investigations by the disciplinary bodies of both the healthcare provider and the lower court judges, which the Constitutional Court ordered.



Decision T-420/92 Constitutional Court of Colombia (1992)

Gender discrimination

Plaintiff dropped out from her high school in 1990 due to pregnancy after attending from 1985 to 1989. After giving birth, she requested re-admission and was denied based on moral grounds by the principal, including the fact that she was a single mother. The plaintiff filed a writ of constitutional challenge for readmission. The trial court granted relief and the Constitutional Court affirmed. The Court found that the school violated the plaintiff’s right to education by denying re-admission on moral basis and without due process. The Court also held that the plaintiff’s right to equality was violated because she was discriminated against based on her status as a single mother. The Court also ruled that the plaintiff’s right to free development of personality was violated as this right includes the path of motherhood.



The Judgment of the Constitutional Court of Turkey: Head-scarf Ban Constitutional Court of Turkey (2014)

Gender discrimination

The phrase “bare-headed” in Article 20 of the Code of Conduct, which entered into force on 26 January 1971 by the decision of the Union of Turkish Bar Associations, abolished on 5 November 2012 with the decision of the Council of State, number 2012/5257. After that, Tu?ba Arslan, who is a lawyer admitted to the Ankara Bar Association, started to attend to hearings while her headscarf is on. On 4 December 2012, Ankara 11st Family Court’s judge stated that Tu?ba Arslan cannot perform her profession while her headscarf is on and adjourned the hearing on the grounds that headscarf is a strong religious and political symbol of anti-secularism. On that occasion Tu?ba Arslan applied to the Constitutional Court of Turkey individually. In its judgment of 25 June 2014 the Constitutional Court examining the case found that the acts of the public power that impose restriction on the location and style of the right to wear a headscarf as a religious belief constitute a violation of freedom of thought and faith. In addition, the Constitutional Court observed that wearing a headscarf is neither constitute an impediment to the use of the rights and freedoms of others nor trigger a social conflict or tension, therefore Tu?ba Arslan decreased at a disadvantage compared to those not wearing headscarf and that constitute a violation of prohibition of discrimination.



Noorfadilla Binti Ahmad Saikin (Plaintiff) v. Chayed Bin Basirun et al. (Defendants) High Court of Malaya at Shah Alam (2011)

Employment discrimination, Gender discrimination, International law

The Plaintiff interviewed with the education officers of the Education Office of the Hulu Langat District to become an untrained teacher. During the interview, the Plaintiff was asked questions pertaining to her general knowledge, personal details, problem solving skills and residential address. She was not asked about her pregnancy status. The Plaintiff was accepted for the position and presented herself at an instructional meeting as instructed. At the meeting, she was told to report for duty immediately. Subsequently, an education officer asked whether anyone at the meeting was pregnant. Once the Plaintiff admitted that she was pregnant, her placement memorandum was withdrawn. The High Court held that it was not relevant whether or not there was a binding contract, as the the Defendants’ decision interfered with the Plaintiff’s right to be employed, which is contrary to Article 8(2) of the Federal Constitution, which provides that there shall be no discrimination on the ground of gender in the appointment of any office or employment under a public authority. This Article of the Federal Constitution was adopted to comply with Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The High Court declared that using pregnancy as a factor in employment is a form of gender discrimination under the Malaysian Constitution, applying CEDAW in interpreting Article 8(2) of the Constitution, because of the basic biological fact that only a woman has capacity to become pregnant.



Ts’epe v. Independent Electoral Commission and Others Court of Appeal of Lesotho (2005)

Employment discrimination, Gender discrimination

In 2004 an amendment was introduced to the Local Government Elections Act 1998 (the “Amendment”) that reserved one third of all seats in every local council for women, the remainder was open to both men and women alike. The constitutionality of the electoral quota was challenged by a man whose candidacy for local government was rejected on the single ground that the electoral division at issue was reserved for women. The appellant argued that these measures are unconstitutional since women’s participation in local governments could have been achieved without debarring men from the same. The Court of Appeal upheld the judgment of the court a quo, dismissed the appeal and held that the Amendment was not unconstitutional, among others, since the impugned measures were carefully designed to achieve its objective, they were rationally connected to the objective and impaired the appellant’s rights in question as little as possible.



Case of Lucia Sandoval Prosecution Appeal Court (Fiscalía apelará del tribunal) (2014)

Domestic and intimate partner violence, Gender discrimination

On August 27, 2014 Lucia Sandoval was acquitted after the court found insufficient evidence of her involvement in her husband’s death. In 2011, Sandoval was charged for the intended homicide of her husband. She subsequently spent over three years in prison awaiting trial. The incident that formed the basis for the charges took place on February 11, 2011, when Lucia Sandoval informed her husband that she had filed a complaint of domestic violence and had obtained a restraining order against him, which required him to leave their home. Sandoval’s husband responded violently and threatened her with a gun. When Sandoval tried to escape, a physical fight ensued and the gun was fired, resulting in her husband’s death. Amnesty International Paraguay, the Committee of Latin America and the Caribbean for the Defense of Women’s Rights (CLADEM) and Catholics for the Right to Decide (CDD Paraguay) helped advocate as to Sandoval’s innocence. These organizations claimed that “the first failure of the judicial system was that protection measures [for] . . . Sandoval were not applied. The court gave the [restraining] order to Sandoval, instead of sending the notice to the Police for it to be given to [her] husband.” The organizations noted that Paraguay had passed a law against domestic violence in 2000 but contended that the law “does not comprehensively address the problem, no[r] does it allow for a coordinated and coherent system in the country to collect data about gendered violence.” It should be noted that in 2013, the Human Rights Commission at the United Nations recommended that Paraguay implement a law to “prevent, punish, and eradicate gender violence, as well as assure that complain[t]s of domestic violence are effectively investigated, with perpetrators being punished appropriately and the survivors receiving attention and compensation.” Background information available at http://blog.amnestyusa.org/americas/victory-in-paraguay-is-a-big-step-fo... http://www.cladem.org/paraguay/Lucia-Sandoval-absuelta.pdf http://www.justice.gov/eoir/vll/country/amnesty_international/2014/Peru.pdf https://www.youtube.com/watch?v=Hk6bjsNKmrM



Sentencia T-627/12 Constitutional Court of Colombia (2013)

Gender discrimination

A group of 1280 Colombian women filed a writ of constitutional challenge for the protection of their fundamental rights to information, dignity, autonomy, free development of the individual, health, education, reproductive rights, and the right to benefit from scientific progress. They claimed that the Inspector General’s Office had breached their rights by misrepresenting the Constitutional Court’s order by, inter alia, making statements contrary to the jurisprudence of the Constitutional Court, contrary to determinations made by the World Health Organization, and making false assertions about the existence of a right to life of the unborn and the public’s demand for protection of the unborn by the civil servants. The Court held that the Inspector General had issued false information about the Court’s order in sentence T-388 of 2009 (asserting that the Court’s decision promoted abortion where in fact it promoted access to information on sexual and reproductive rights, including information on abortion) and thus had violated his duty to provide accurate information. The Court held that the Inspector General’s statement that emergency contraceptives are abortive contradict the WHO’s findings and ordered the official position of the Inspector General’s Office be rectified accordingly. The Court held that Deputy Inspector General Hoyo’s letter, which relieved health clinics of the obligation to remove obstacles to abortion, was a violation of the duties of that office and ordered the letter be rectified. The Court also found for the Applicants the right to receive accurate information with respect to: (1) institutions’ rights to claim conscientious objection or the possibility of its collective exercise regarding abortion; and (2) the inclusion in the Compulsory Health Plan of misoprostol, a drug which was authorized by the Food and Drug Surveillance Institute and the WHO in voluntary interruption of pregnancy but was inaccurately alleged by the Deputy Inspector’s letter as dangerous for women’s health. The Court for the first time held that it was the obligation and duty of public servants to provide accurate, reliable and timely information to women regarding their rights to sexual and reproductive health. This decision is significant not only within Colombia but in the Latin American region with respect to women’s access to the sexual and reproductive health services.



Sentencia T-636/11 Constitutional Court of Colombia (2011)

Gender discrimination

In 2011, Ms. Tenjo Hernandez discovered that she was six weeks pregnant and requested voluntary termination of pregnancy based on information provided by the medical staff that her epilepsy medications could cause congenital deformities in the fetus. The doctor refused to perform the procedure unless a court order was issued. Ms. Hernandez filed a writ of constitutional challenge to enforce her rights, which the Courts of first and second instance denied based on the reasoning that Ms. Hernandez’s grounds for relief did not fall under any of the prongs of Decision C-355 of 2006 which permitted Colombian women and girls the right to voluntary termination of pregnancy. The Constitutional Court reviewed the case, despite the fact that there were not any deformities in the fetus and Ms. Hernandez had withdrawn her request for relief. The Court held that women do not carry the burden of establishing their health conditions and the status of their pregnancy; healthcare facilities and doctors are responsible to determine any fetal deformities incompatible with life outside the womb. Therefore, the Court ruled that healthcare facilities should comply with the Constitutional Court’s rulings in Decision C-355 of 2006, should not make value judgments of women who request voluntary termination of pregnancy and are prohibited from requesting court orders to perform voluntary termination of pregnancy.



Sentencia T-841/11 Constitutional Court of Colombia (2011)

Gender discrimination

A twelve-year-old girl requested voluntary termination of pregnancy after having consensual sex with her boyfriend on the grounds that her mental and physical health, particularly with respect to the effects from obstetric complications, were in jeopardy as a result of the pregnancy. The healthcare provider denied her request, despite the fact that the request fulfilled legal requirements, on the grounds that the medical certificate to the girl’s health conditions was issued by a doctor who did not belong to the same healthcare provider network as the girl’s healthcare network. The pregnancy was carried to term and the girl’s mother filed a writ of constitutional challenge to enforce the girl’s right to abortion when the girl was not yet five months pregnant. After nearly a month, the Court of First Instance denied the writ, finding that the girl’s life was not in danger. The Constitutional Court ruled, however, that insurance providers and healthcare providers should not erect improper obstacles to the performance of voluntary termination of pregnancy except for the conditions established by Decision C-355 of 2006, and that they have a duty to take all necessary measures to ensure that women meeting the legal requirements under Decision C-355 of 2006 may have the procedure performed. In this case, one medical certificate would have been sufficient to clear the girl for the performance of voluntary termination of pregnancy as there was no requirement under Decision C-355 of 2006 that the medical certificate must come from doctors in the network of the healthcare provider of the girl or women requesting the procedure. The Court also ruled that the healthcare provider violated its duty to provide timely and clear diagnosis when they took almost a month to deny the request. The Court ordered the healthcare provider to pay restitution damages to the girl including all damages caused by its improper refusal to perform the procedure and any medically necessary services resulting from the birth.



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.



J.Y. Interpretation No. 457 Constitutional Court of Taiwan (1998)

Gender discrimination

The Regulations for the Handling of the Government Owned Housing and Farmlands Vacated by Married Veterans after Their Hospitalization, Retirement or Death distributes plots of state farmland to veterans. Section 4-III of the Regulations provides, “If the surviving spouse of the deceased veteran remarries but without issue or has only daughter(s), the land and housing shall be reclaimed unconditionally upon the marriage of the daughter(s); and the rights of the veteran may be inherited by his son, if any.” The Court explained that the government can allow a veteran’s surviving dependents to continue using and farming the state land distributed to veterans, and can extend the term “dependents” to a veteran’s children. In doing so, however, the government should consider the children’s ability to earn a living and cultivate the land, and must keep in mind the principle of gender equality enshrined in Article 7 of the Constitution and Article 10-VI of the Amendments to the Constitution. The Court held that Section 4-III of the Regulations violates this principle because it limits the right of inheritance of a deceased veteran to the veteran’s son without regard to the son’s ability or marital status. Thus, the Court held that Section 4-III of the Regulations discriminates against a specific group of women on the premise of marital status and sex. As such, the Court held that the government must revise Section 4-III of the Regulations to remove the discriminatory provision.



Supreme Court Decision 2008Da89712 Supreme Court of South Korea (2009)

Employment discrimination, Gender discrimination, Sexual harassment, Sexual violence and rape

The Plaintiff worked as an employee for a corporation in which the Defendant served as a supervisor. The Defendant, who had the authority to hire and fire employees, singled out the Plaintiff frequently for her passive nature and alleged inferior job skills. On numerous occasions, the Defendant forced the Plaintiff to touch his penis and engaged in other various acts of sexual misconduct. The lower court found that the Defendant’s sexual misconduct constituted an invasion of the Plaintiff’s right to self-determination. Additionally, the lower court found the employer, the Defendant-Corporation, liable for the supervisor’s sexual misconduct. The Supreme Court of Korea affirmed, finding the supervisor and employer liable. Under Article 756 of the Civil Act, an employer can be held liable for an employee’s action if the act is “related to the employee’s execution of the undertaking (for which he is employed).” Thus, the Supreme Court noted that when an employee injures another intentionally, even if the act is not related to the employee’s undertaking of his job responsibilities, employer liability still attaches if the misconduct is “apparently and objectively related” to the employer’s work. Additionally, if an employee commits an intentional act such as sexual misconduct, the court noted employer liability attaches where the misconduct was objectively related to the execution of the employer’s work. Noting the Defendant-employee’s authority to fire and hire employees, as well as his ability to punish the Plaintiff for resisting his unwelcome sexual advances, the Supreme Court held that the Defendant-employee took advantage of his superior position over the Plaintiff and therefore committed the sexual misconduct in a situation proximate, in terms of time and place, to his job responsibilities. Therefore, the court found the lower court correctly applied the law in finding employer liability, as the sexual misconduct was objectively related to the Defendant’s job duties.



Supreme Court Decision 2009Do3580 Supreme Court of South Korea (2009)

Gender discrimination, Gender-based violence in general, Sexual violence and rape

The Victim, born a male, identified as a female while growing up and was diagnosed with gender identity disorder. At the age of twenty-four, the Victim underwent a sex-change operation and was diagnosed as a transsexual by a psychiatrist. The Victim had cohabited with a male for ten years and had lived as a female for the past thirty years after the operation. Under Korean law, the victim of the crime of rape must be female. Thus, the central issue of the case pertained to the appropriate standard in determining the legal gender of a rape victim. The Supreme Court affirmed the lower court’s decision, holding that the Victim was a female under the law. In making this decision, the court noted that it must conduct a comprehensive evaluation of the biological, psychological and social factors, rather than merely relying on biology. Thus, in determining an individual’s gender, the Supreme Court noted that lower courts must consider the individual’s own sense of identity, including an individual’s behavior, attitude and characteristics. Additionally, courts must look to factors such as the individual’s discomfort regarding his or her biologically assigned gender, the individual’s sense of belonging and identity, whether the individual wants to obtain the genitals and other sexual characteristics of the opposite sex, whether a psychiatrist has diagnosed the individual as having transsexualism and whether the individual has received psychiatric treatment and hormone therapy, which failed to cure such symptoms. Lastly, courts must look at factors such as whether the individual has adapted to the opposite sex mentally and socially, has undergone sex reassignment surgery, identifies with such gender, wears the clothes and carries him or herself as the opposite sex, and whether others accept the changed gender. In this case, the Victim identified herself as a female and did not associate herself as a male, underwent a sex-change operation, and lived her life as a female for over thirty years after the operation. Thus, the court concluded the Victim was a female, and a rape was committed with knowledge that the Victim was a female.



Gilroy v. Angelov Federal Court of Australia (2000)

Employment discrimination, Gender discrimination, Sexual harassment

Leoni Gilroy made allegations of sexual harassment against a co-worker, Branko Angelov, who is the respondent in this case. Gilroy sought damages against her employers, Craig and Toni Botting, the second respondents. Gilroy reported the sexual harassment to Mr. Botting, who told Gilroy that he didn’t believe Angelov would act in such a way. Nevertheless, Bottling agreed to keep Angelov away from her at work. Later, Mr. Botting terminated Gilroy’s employment, stating that Mrs. Botting believed that Mr. Botting and Gilroy were having an affair. The Court entered judgment in favor of Ms. Gilroy for $24,000 against the Bottlings, highlighting the emotional and financial difficulties experienced by Ms. Gilroy.



2013 (Kyo) No. 5 Supreme Court of Japan (2013)

Gender discrimination

The plaintiff husband, who had gender identity disorder and changed his gender from female to male, and the plaintiff wife requested the local public agency to amend their family registry to state the plaintiff husband as the father of their child. The child was born by artificial insemination and has no blood relationship with the plaintiff husband. The Supreme Court determined that, since the child was conceived by the plaintiff wife during marriage, he is presumed to be a child of the plaintiff husband under the Civil Code, and ordered the family registry to be amended.



1998 (O) No. 576 Supreme Court of Japan (2001)

Gender discrimination, Gender-based violence in general

The plaintiff had breast cancer and sued her operating surgeon who conducted a mastectomy arguing that he had a duty to inform her in advance that there are other treatments that do not require complete breast removal. The Supreme Court determined that the surgeon had a legal obligation to give her an opportunity to make an informed decision about her treatment, in this case by providing the name and address of medical institutions that conduct breast cancer operations that do not remove the entire breast.



2012 (Ju) No. 2231 Supreme Court of Japan (2014)

Gender discrimination

The plaintiff was a physiotherapist in a managerial position at her employer. She requested and was granted maternity leave but was not allowed to return to her position at the end of the maternity leave. She filed a lawsuit against her employer, asserting that there was a violation of the Equal Employment Opportunity Law. The Supreme Court found in favor of the plaintiff because the Equal Employment Opportunity Law forbids disadvantaging employees based on the employee’s pregnancy, childbirth, request for maternity leave, or request for transfer to lighter work.



Hayward v. Cammell Laird Shipbuilders Ltd [1988] A.C. 894 17 House of Lords (1988)

Gender discrimination

The applicant, a woman, was employed at a shipyard canteen as a cook and was classified as unskilled for the purposes of pay. She claimed that she was doing work of equal value to male comparators who were shipyard workers paid at the higher rate for skilled tradesmen in the yard. The industrial tribunal, at a further hearing, rejected the applicant's contention that, in considering whether her contract of employment should be modified, it was sufficient to compare her basic pay and overtime rates with that of the male comparators and held that without a comparison of all terms and conditions of employment she was not entitled to a declaration that she should receive a higher rate of pay. The Employment Appeal Tribunal dismissed the applicant's appeal and, on her appeal, the Court of Appeal upheld that decision. The Court of Appeal dismissed the applicant's appeal. When deciding whether a woman’s contract is equal to a man’s it is sufficient for certain terms to be less advantageous for the woman for the contract to be unfair. It is not necessary for the overall woman’s contract to be less advantageous than the overall man’s contract.



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.



Public Prosecutor v. Billy Metussin High Court of Brunei (1993)

Gender discrimination, Gender violence in conflict, Gender-based violence in general, Sexual violence and rape, Statutory rape or defilement

The defendant pleaded not guilty to one charge of attempted rape of an 11 years and 10 months old female, under section 376(1) of the Penal Code. The court found that the complainant gave different versions as to the events that occurred. It found the complainant’s evidence unreliable. The court concluded that the complainant was the initiator of the events that led to the attempted intercourse. The court found that there was an attempt at sexual intercourse. In view of medical evidence that revealed that the hymen was intact and that ejaculation may have occurred outside the complainant, the court found doubt as to whether penetration occurred. The court highlighted that consent was not a defense to rape as the complainant was under the age of 14 at the time at issue. Nonetheless, consent becomes relevant to punishment, as a minimum sentence is prescribed for rape which occurs “without the consent of the victim”. The court found that the complainant gave her consent to the defendant’s attempt to have sexual intercourse with her and that she gave a real consent, not vitiated by immaturity or by any of the other factors specified in section 90 P.C. The court convicted the defendant of attempted rape and imposed sentences of one year imprisonment and three strokes.



Nombuyiselo Siholongonyane v. Mholi Joseph Sihlongonyane High Court of Swaziland (2013)

Gender discrimination

Husband challenged his wife’s capacity to initiate legal proceedings without his consent. The common law permitted a married woman to sue without the consent of her husband only if the woman attained approval from the court first. The High Court held that this common law requirement was unfair discrimination because it applied only to women and not to men, a violation of Sections 20 and 28 of the Constitution, which respectively state that “all persons are equal before and under the law” and that “women have the right to equal treatment with men.”



Attorney General v. Aphane Supreme Court of Swaziland (2010)

Gender discrimination, Property and inheritance rights

Wife and husband married in community of property, where all property of either spouse is combined in a joint estate regardless of whether it was acquired before or during the marriage and regardless of how much each spouse contributed. Despite marrying in community of property, the couple was not permitted to register newly purchased land in both of their names because the wife had continued to use her maiden name. Section 16(3) of the Deeds Registry Act only permitted land to be registered by the husband and wife if the wife used her husband’s name; otherwise, the Act permits the land to be registered in the name of the husband only. Because the Section 16(3) of the Deeds Registry Act only affected the rights of wives and not husbands, the Supreme Court held that is invalid as it amounts to unfair discrimination and a violation of Section 20 and 28 of the Constitution.



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.



郭晶与杭州市西湖区东方烹饪职业技能培训学校一般人格权纠纷,杭州市西湖区人民法院 (Guo Jing v. East Cooking Vocational Skills Training School) West Lake District Court of Hangzhou (2014)

Employment discrimination, Gender discrimination

The plaintiff alleged that in June 2014, she saw the recruiting advertisement of the respondent on the Internet, knowing that the respondent want to recruit two copywriters. Guo submitted her resume accordingly. However, Guo has not got reply since then. With the certainty that she is capable of the position, Guo called the School, asking about the job. Guo was told that since the position requires many business trips, only male can be considered. Guo emphasized that she can adjust to those business trips but was still refused by the same reason. Guo therefore brought this lawsuit on the basis that the respondent’s action is in violation of Article 3 of Employment Promotion Law of the People's Republic of China, which requires that “Workers shall be entitled by law to enjoy the right to equal employment and to seek their own employment. No worker seeking employment shall suffer discrimination on the grounds of ethnicity, race, gender or religious belief.” The respondent argues that because of the specialty of the position, the copywriter should live in the same room with the president of the school, all of whom are male, while during the business trips. It is out of the consideration and care to the plaintiff that they did not recruit her. The court finds that since the respondent did not provide any evidence to prove the specialty of the position and the legal reasons for the unsuitability of female worker, it violates the accorded rule: Article 3, 12, 13 of Labor Law, which states “Labourers shall have equal right to employment and choice of occupation”, “Labourers, regardless of their ethnic group, race, sex, or religious belief, shall not be discriminated against in employment”, “Women shall enjoy the equal right, with men, to employment”.

性别歧视,就业歧视

原告称,2014年6月,自己在网上看到被告要招两名文案的招聘信息。原告在网上投递了简历。原告一直没有等来被告的回复。原告认为自己的各项条件均符合其工作所需,于是打电话询问应聘情况。被告工作人员答复说,他们的文案职位仅招男性,因为需要出差。原告告知自己完全可以胜任出差,于是不甘心又到被告招聘现场去应聘,依然被以同样理由拒绝。原告称,依据中华人民共和国就业促进法第三条,劳动者享有平等就业的权利,国家保障妇女享有与男子平等的劳动权利,而被告违反了这项法律。被告称该次招聘的岗位具有特殊性,出差住宿时必须与校长住一间标准间,而被告校长均为男性。基于公序良俗,被告没有录取原告。法院认为,被告未举证证明该岗位属于法律、法规所规定的女职工禁忌从事的工作,被告违反了《中华人民共和国劳动法》第三条、第十二条、第十三条劳动者享有平等就业权利的规定。



Economic Cooperatives of Yongxinnansha Shares v. Subdisctrict Office of Chancheng District of Foshan City Intermediate Court of Foshan City, Guangdong Province (2014)

Gender discrimination, Harmful traditional practices

In 2012, the plaintiff claims their shareholder status in Nansha economic cooperative, and alleged the local subdisctrict office to affirm their qualification. The subdisctrict office affirmed and granted certificate. Nansha economic cooperative thereby sued the Subdistrict office for its administrative decision. Nansha alleged that according to article 15 of the Article of Stockholding of the Precinct of Yongxin: women married before December 31, 1992 shall be regarded as “out-married” women and shall not be given the right to share dividends, nor their shareholder qualification. The trial court finds that according to Article 61, section 3 of Law of the People's Republic of China on the Organizations of Local People's Congresses and Local People's Governments, Article 27, 36 of Law of the People's Republic of China on the Organization of the Villagers Committees; and Article 4 of rural collective economic organization regulation of Guangdong Province, the distribution of rural collective property shall not violate other laws and regulations of China, and shall not infringe other people’s legal rights. Article 15 of the Stockholding Article is in violation of the equal right of women and therefore invalid. The intermediate court affirmed the judgment.


Unknown v. Austria Asylum Court (2012)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices

A female minor applicant whose home state was Afghanistan, together with her parents and four minor siblings, applied for international protection in Austria. The Federal Asylum Agency refused and the applicant appealed. The Asylum Court upheld the appeal and granted asylum. In particular, the Asylum Court noted that on return to Afghanistan, the applicant would, among other things, (1) receive no education, (2) be married to a man chosen by her father or grandfather, (3) not have the opportunity to lead an independent life in line with her beliefs, and (4) not have the opportunity to protect herself against violence and undesired restrictions.



KKO 2010:74 Supreme Court of Finland (2010)

Gender discrimination

The issue here was whether the crime of discrimination, as set forth in Section 9 (currently Section 11) of Chapter 11 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), could be committed in connection with the practice of religion by way of a refusal to participate in public worship with a female priest. In the case, A, a male priest and a member of a traditionalist evangelist association that was against women serving as pastors, was invited by B, the chairman of the local chapter of this association, to preach at a parish church. C, a female priest, had been scheduled to participate in the worship by assisting in the communion. Prior to the commencement of the worship, A and B had announced to C that, because of their conviction, C could not join A in the worship, after which C had left the church. In its ruling, the Supreme Court noted that Section 11 of the Finnish Constitution (731/1999, as amended) sets forth that everyone has the right to freedom of religion and conscience. The Court, however, clarified that this right is not absolute and that one cannot plead this right to justify actions that violate human dignity or other basic human rights or that are against the principles of the Finnish legal system. The Court further noted that, under the Finnish fundamental rights system, the prevention of discrimination can justify limiting the rights of the autonomous authority of religious organizations and their right to determine the methods of practicing religion. The same reason, prevention of discrimination, is also a justifiable reason to limit the rights of an individual in connection with the practice of religion. On this basis, the Court held that the elements of the crime of discrimination are generally applicable and do not exclude discrimination based on gender or discrimination that takes place within a parish in connection with the practice of religion. The Court also found that the elements of the crime, including a person having, without a justified reason, in the arrangement of a public function placed someone in a clearly unequal or otherwise essentially inferior position owing to his or her gender, were present in the case. Therefore, A was sentenced to pay 20 days-fine. While it found B also guilty, due to B’s level of guilt being determined to be lower than that of A as well as because of certain mitigating circumstances, the Court decided to waive the punishment of B.



HelHo 2009:10 Court of Appeal of Helsinki (2009)

Employment discrimination, Gender discrimination

The issue here was whether a representative of an employer can be guilty of work discrimination, as set forth in Section 3 of Chapter 47 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), by temporarily laying off an employee on the employee’s return from family leaves, and whether a justifiable cause for such discrimination existed in the case. In the case, B, who had been working at a company since 1998, had been on a two-year maternity leave between 2004 and 2006 and on a subsequent nursing leave after the maternity leave ended. During these family leaves, the company had, initially temporarily and subsequently on a permanent basis, employed C to carry out tasks that B had been responsible for before the family leaves. Upon her return to work in early 2007, B was temporarily laid off by A, the CEO of the company. A claimed that the work that C had been tasked with doing had changed while B was on the family leaves and that B could therefore not return to her old position. A further stated that the company was not able to offer B another position due to the company’s financial difficulties, and more specifically, that the company was not able to simultaneously employ both B and C. According to the Criminal Code, an employer, or a representative of the employer, that during employment without an important and justifiable reason puts an employee in an inferior position because of the employee’s gender, is guilty of criminal work discrimination. The Court of Appeal held that B had under the Finnish Employment Act (55/2011, as amended) the right to return to her old position after her family leaves ended or, if this was not possible, be offered other work in accordance with her employment contract. The Court further held, in accordance with A’s own statement, that the company could have trained B for the new type of work within only a brief period of time and, therefore, that laying off B and continuing to employ B’s substitute C (that had been made a permanent employee just before B’s return) was based on B’s gender and her family leaves. Due to these reasons, and despite the company’s financial difficulties, the Court held that there was no justifiable reason for the discrimination and, therefore, found A guilty of criminal employment discrimination. A was sentenced to pay 30 days-fine and damages to B of 1,200 Euros.



In re M Insa, Decision No. 12/PUU-V/2007 Constitutional Court of Indonesia (2007)

Gender discrimination, Harmful traditional practices

Petitioner, an Indonesian male, challenged the constitutionality of a marriage law requiring monogamy with an exception that allows polygamy only with the consent of the wife and the permission of the court (Law Number 1 Year 1974 regarding Marriage). The law requires the husband to submit an application to the court of his domicile with his wife’s consent in order to engage in polygamy. Petitioner argued that because the law required the husband to obtain consent from his wife and the court before engaging in polygamy, it violated his right to freely exercise his religion because the teachings of Islam allow polygamy. The government argued that Islamic principles encourage monogamy and only allow polygamy when a wife allows her husband to re-marry for the benefit of their marriage. The court held that the practice of polygamy historically had degraded the status of women and the teachings of Islam required the preservation of the dignity of women. In addition, since the purpose of marriage is to “achieve peacefulness (sakinah),” men are required to first obtain their wives’ consent before engaging in polygamy, thus respecting their wives as legally equal partners. Therefore, the Court rejected petitioner’s claims and held the laws constitutional as they guarantee the recognition of women’s rights and allow husbands to exercise polygamy in accordance with the teachings of Islam.



Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) Court of Appeals Seventh District (2013)

Gender discrimination, Sexual violence and rape, Trafficking in persons

Cece, a young Albanian woman fled Albania to avoid trafficking and prostitution rings which target young women living alone. While living alone in Korce, Cece caught the attention of one of the leaders of a well-known prostitution ring. He followed, harassed, and threatened Cece. Her reports of the assault to the authorities were perfunctorily dismissed. Thereafter, Cece fled to the United States (“U.S.”) using a fraudulently procured Italian passport, whereupon she filed for asylum and withholding of removal within the one-year statutory period. Her claim was based on fear of returning to Albania as a young woman living alone. The immigration judge granted Cece’s asylum claim finding that her fear of returning to Albania was well founded because she belonged to a particular social group composed of “young Albanian women who are targeted for prostitution by traffickers” and that the government of Albania was unable or unwilling to protect such women. The Board of Immigration Appeals vacated the judge’s decision, holding that the judge erred in finding that Cece had established membership in a particular social group. On appeal, the Seventh Circuit Court of Appeals found that Cece was a member of particular social group cognizable under 8 U.S.C. § 1101(a)(42)(A) and therefore eligible for asylum. Specifically, the Court found that the particular social group identified by the immigration judge – young Albanian women living alone and thus vulnerable to being trafficked – met the immutability requirements of 8 U.S.C. § 1101(a)(42)(a) because it is based on common characteristics that members of the group either cannot change or should not be required to change.



KHO 2013:46 Supreme Administrative Court (2013)

Employment discrimination, Gender discrimination

The issue here was whether the concept of presumption of discrimination, as set forth in the Finnish Equality Act (609/1986, as amended) (the “Equality Act”), applied in the case where a less-merited male applicant had been appointed over two female applicants, and whether there was a justifiable reason for discrimination. In the case, the Regional Council of Lapland, a politically steered joint municipal board, had appointed V, a male applicant, as its director of development. Two female applicants, E and H, had disputed the council’s decision to appoint V on the basis that the appointment was based on V’s political affiliations and also because the decision breached the Equality Act. The Supreme Administrative Court considered (i) whether the threshold for presumed discrimination had been exceeded and, if this were the case, (ii) if there were grounds for the rebuttal of the presumption. The Court found that both E and H had been adequately qualified for the position and had more merits relevant to the position than V. On this basis, the Court held that E and H had sufficiently shown that they had not been appointed because of their gender and that, as a result, a presumption of discrimination, as set forth in Section 8 of the Equality Act, had arisen. Under the Equality Act, to rebut a presumption of discrimination an employer must show that its actions are attributable to a justifiable reason not connected to gender or that the actions were based on weighty and acceptable grounds related to the nature of the job or the task. The Regional Council of Lapland claimed that, in this case, the justifiable reason not connected to gender was V’s having more socio-political experience. The Court, however, held that socio-political experience was not specifically mentioned in the pre-established selection criteria for the position and was, therefore, part of the general merit assessment of the applicants. As discussed, the Court had found that, based on this assessment, both E and H had more merits relevant to the position than V. Therefore, the Court held that V’s socio-political experience was not a justifiable reason for his appointment. For these reasons, the Supreme Administrative Court agreed with the earlier holding of the Administrative Court of Rovaniemi that the decision of the Regional Council of Lapland to appoint V as its director of development was made in breach of the Equality Act and, therefore, ordered the decision to be annulled.



Sentencia Numero 740/06 High Court of the Basque Country Contentious-Administrative Chamber (2004)

Employment discrimination, Gender discrimination

During a staff selection process for the Basque Health Service, in particular for the substitution of the chief of psychiatry services in the Santiago de Vitoria Hospital for a period of six (6) months, Mrs. Elena who had had a baby fifteen (15) days before the above mentioned selection process, was obliged by the Basque Health Service authority to renounce to the post she had the right to. The Basque Health Service authority deprived Mrs. Elena from a post that corresponded to her by the position she had in the list of temporary recruitment. The Basque Health Service authority forced Mrs. Elena to renounce to the post because of her recent maternity when she had expressly said that she wanted to accept that job. Art. 48 of the Statute of Workers Right (Estatuto de los Trabajadores) damage the worker depriving them from an appointment that corresponds to the worker. The maternity leave is not equal to a lack of capacity for the performance of their duties for the post under Spanish law. Law 30/1999 of 5th October of selection of temporary workers of the Health Service, does not exclude the recruitment of a person during the maternity leave. The decision of the High Court of the Basque Country was to appoint Mrs. Elena as temporary worker for the Basque Health Service (in particular for the substitution of the chief of psychiatry services in the hospital Santiago de Vitoria) for the remaining period until the fulfillment of the six (6) months period of the vacant position.

Durante un proceso de selección de personal para el Servicio de Salud Vasco, en particular para la sustitución del jefe de servicios de psiquiatría en el Hospital Santiago de Vitoria por un período de seis (6) meses, la Sra. Elena, que había tenido un bebé quince (15) días antes del proceso de selección mencionado anteriormente, fue obligada por la autoridad del Servicio Vasco de Salud a renunciar al cargo al que tenía derecho. La autoridad del Servicio Vasco de Salud privó a la Sra. Elena de un puesto que le correspondía y le otorgó la posición a alguien en la lista de reclutamiento temporal. La autoridad del Servicio Vasco de Salud obligó a la Sra. Elena a renunciar al cargo debido a su reciente maternidad cuando había dicho expresamente que quería aceptar ese trabajo. Artículo 48 del Estatuto de los Trabajadores (Estatuto de los Trabajadores) establece un daño al trabajador que ha sido privado de una cita que le corresponde. La licencia de maternidad no es igual a la falta de capacidad para el desempeño de sus funciones para el puesto bajo la ley española. La Ley 30/1999, de 5 de octubre, de selección de trabajadores temporales del Servicio de Salud, no excluye el reclutamiento de una persona durante la licencia de maternidad. La decisión del Tribunal Superior del País Vasco fue designar a la señora Elena como trabajadora temporal del Servicio Vasco de Salud (en particular para la sustitución del jefe de servicios de psiquiatría en el hospital Santiago de Vitoria) por el período restante hasta el cumplimiento del período de seis (6) meses del puesto vacante.



Cole, et al. v. Dixon Supreme Court of Liberia (1938)

Gender discrimination, Property and inheritance rights

This case established that a wife’s dower is not an asset of her husband’s estate. After Mr. Dixon died intestate, his widow claimed that she held title to real property that had been conveyed to her as a deed of gift from her husband. The executor, appointed by the county, argued that the property was an asset of the estate because the right of dower accrues only after the death of the husband. The court disagreed, holding that “[the] inchoate right of dower is so vested in the wife as against the husband immediately on the marriage that no conveyance or act of the husband can deprive her of it,” including any creditors’ claims against the husband.



Williams v. Wynn Supreme Court of Liberia (1914)

Gender discrimination, Property and inheritance rights

This case established a precedent for property rights of a widow when her husband dies intestate. On appeal, the Supreme Court excluded from probate ten acres of land to which Ms. Williams claimed title. Ms. Williams’ husband died intestate and the executor of his estate, appointed by the Probate Court, included all real and personal property from the marriage in determining the assets of the estate. Ms. Williams claimed that she held title to ten acres of property that her husband had purchased through a third party, with title vesting in the wife. The executor argued, and the trial court held, that all property acquired through the husband could be made liable for his debts. The trial court relied upon the Constitution of Liberia, which states “The property of which a woman may be possessed at the time of her marriage and also that of which she may afterwards become possessed, otherwise than by her husband shall not be held responsible for his debts.” The court reasoned that this clause implies that property acquired through her husband could be held liable for his debts. The Supreme Court disagreed, holding that if a husband acquires property in the name of a third party, who becomes the medium through which title vests in the wife, the wife has an absolute right in that property and is not liable for the claims of the husband’s creditors. The court failed to apply this holding to personal property of the marriage, however, stating that instead personal property procured and owned by the deceased for the common use of the household is an asset of the estate.



Dlyon v. Lambert, et al. Supreme Court of Liberia (1884)

Gender discrimination, Property and inheritance rights

This early case established the precedent that a married woman may own and convey property independent of her husband. On appeal, the Supreme Court reversed the lower court’s decision denying ownership of a half-acre of land. Ms. Dlyon bought the property from a sheriff’s auction after it was repossessed for the payment of the owner’s debts. The Lamberts argued both that the previous possessor of the land never gained title of the property because he failed to obtain a fee simple deed so could not be used to pay his debts, and that even if he did have title, a married woman could not purchase land. On the first point, the court held that while the previous possessor did not have perfect title to the land, it could still be reached by creditors. On the second point, the court unambiguously declared that Ms. Dlyon had the right to purchase the property: “Under the Constitution, a femme couverte [married woman] may convey property she is possessed of otherwise than through her husband and this fact admits the inference that she may also bargain and buy property independent of her husband.”



Equal Opportunities Comm’n v. Dir. of Educ. High Court of the Hong Kong Special Administrative Region (2001)

Gender discrimination

The Equal Opportunities Commission (the “Commission”), which is an entity formed pursuant to Hong Kong’s Sex Discrimination Ordinance, Chapter 480 (the “Ordinance”), brought a challenge against the Director of Education (the “Director”), alleging that the system for transferring students from primary to secondary school (the “SSPA System”) discriminated against students on the basis of sex in violation of the Ordinance. The discrimination affected both sexes, but it primarily affected females. There were three structural elements of the SSPA system that allegedly discriminated against students: (1) A scaling mechanism, which scaled the scores of all primary students in their school assessments to ensure that they could be fairly compared with scores given by other primary schools; (2) a banding mechanism, which banded all students into broad orders of academic merit; and (3) a gender quota, which ensured that a fixed ratio of boys and girls were admitted to individual co- educational secondary schools. Though the structural elements were facially neutral, they were being employed on a gender basis. The Director argued that there were legitimate differences between boys and girls at younger ages, which justified the SSPA’s contested elements and, therefore, the SSPA simply removed initial gender bias inherent in the system. The High Court of Hong Kong Special Administrative Region held that all three allegedly discriminatory elements of the SSPA system were in fact discriminatory and contrary to the Ordinance. The Court ordered—as requested by the Commission—that the Director eliminate sex discrimination against girls within a reasonable time and that a user-friendly mechanism be put in place to deal with and remedy complaints of sex discrimination by individual parents on behalf of their children.



Supreme Court Decision 2009Da19864 Supreme Court of South Korea (2011)

Gender discrimination

The Supreme Court upheld lower court’s decision finding that the Seoul Young Men’s Christian Associations (“YMCA”), a private organization, violated the Constitution when it excluded female from general membership. The Supreme Court found sexual discrimination, which excludes women from general membership qualification, to be against “social order exceeding tolerable limits in light of our community’s sound common senses and legal sentiment.” Accordingly, the Supreme Court found YMCA to have violated the Constitution despite its private organization status.



Hickie v. Hunt & Hunt Human Rights and Equal Opportunity Commission (1998)

Employment discrimination, Gender discrimination

Marea Hickie, a solicitor, claimed unlawful discrimination by her employer, the partnership of Hunt & Hunt, during and after her maternity leave. Shortly after returning from maternity leave, the firm decided not to renew Hickie's contract. At issue was a requirement that Hickie work full-time to maintain her position at the firm. Hickie claimed that the firm’s non-renewal constituted unlawful discrimination on the basis of sex, marital status, pregnancy, potential pregnancy and family responsibility. Upon review of the case, the Commission noted that such a requirement was “likely to disadvantage women” and therefore the firm’s non-renewal resulted from “an act of [indirect] discrimination.” The respondent firm was ordered to pay Hickie $95,000 in compensation.



Corneau v. Canada (Minister of Citizenship and Immigration) Refugee Protection Division of the Immigration and Refugee Board (2011)

Domestic and intimate partner violence, Gender discrimination

This case concerns a decision of the Refugee Protection Division of the Immigration and Refugee Board. In response to an application for protection by Ms. Corneau, who sought protection from domestic violence perpetrated by her partner in Saint Lucia, the Board held that authorities in Saint Lucia were “capable of providing the applicant with adequate protection.” The applicant sought review of this determination. The Federal Court held that the Board’s finding was unreasonable, noting that “[t]he good intentions of a state to protect its citizens do not constitute state protection where in practice protection does not exist.” The Court stated that the Board failed to give adequate weight to contrary evidence and further noted that applicants for state protection are “not required to seek protection or assistance from non-governmental organizations or administrative agencies in order to rebut the presumption of state protection.”



Nawakwi v. Attorney General High Court of Zambia (1991)

Gender discrimination

Ms. Nawakwi was an unmarried mother of two who applied to have her children included in her passport. For her first child, the Passport Office required a birth certificate, which could only be obtained by Ms. Nawakwi swearing by affidavit that (1) she was the mother of the child and (2) the child was born out of wedlock. When the passport was then issued, she was required to swear a new affidavit to the same effect. However, the inclusion of her second child was approved immediately because his Tanzanian father had completed the relevant documents abroad. Ms. Nawakwi challenged this practice as discriminatory, because it recognized a foreign father, and not a Zambian mother, as the parent of a child. The High Court found that the mother of a child was not regarded by the government as equal to the father with respect to the passport application process. Accordingly, the High Court ruled that Ms. Nawakwi had been discriminated against on the grounds of sex. In addition to the foregoing, the High Court also held that (1) a single parent family headed by a male or female is a recognized family unit in the Zambian society and (2) a mother of a child does not need the consent of the father to have her children included in her passport or for them to be eligible to obtain passports or travel documents.



Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc Court of Appeal of New Zealand (2014)

Gender discrimination

The work of caring for the elderly is “predominately performed by women.” Caregivers employed by Terranova alleged that both male and female caregivers were being paid less “than would be the case if caregiving of the aged were not work predominantly performed by women.” Terranova appealed the judgment of the Employment Court. On appeal, Terranova argued that the Act referred specifically to equal pay, rather than pay equity. The Court of Appeal rejected their argument, stating that “Pay equity is about equal pay. It is equal pay for work of equal value.” The Court relied on 3(1)(b) of the Equal Pay Act which “requires that equal pay for women for work predominantly or exclusively performed by women, is to be determined by reference to what men would be paid to do the same work abstracting from skills, responsibility, conditions and degrees of effort as well as from any systemic undervaluation of the work derived from current or historical or structural gender discrimination.” Terranova’s appeal was dismissed.



Ayoub v. AMP Bank Limited Court of Appeal of Australia (2011)

Employment discrimination, Gender discrimination, Sexual harassment

Ms. Ayoub claimed harassment and discrimination following a performance appraisal after which her position was made redundant. She also sought worker’s compensation for anxiety/distress caused by the alleged conduct. An arbitrator found for Ms. Ayoub on the basis that the company had failed to consult her on the redundancy decision and mishandled the performance appraisal and these actions caused her mental injuries. A court overturned the arbitrator, finding that first, while it would be unreasonable for an employer to inform a worker of her redundancy in a callous way, the redundancy decision was unrelated to Ms. Ayoub’s performance, and second, Ms. Ayoub’s position was such that she did not legally have to be consulted ahead of time. The Court of Appeals affirmed the Acting Deputy President’s decision, finding no error of law.



Gaylene Jessica Helen Main v. Kim Richards Topless Human Rights Review Tribunal (2004)

Employment discrimination, Gender discrimination

The plaintiff was a milker employed by a dairy farm. The plaintiff complained that she was not considered for promotion or training opportunities because she was female. The plaintiff also alleged sexual harassment, in the form of unwelcome comments and jokes. The court found that the plaintiff did not establish that she had been a victim of unlawful discrimination on the ground of her sex. The court was satisfied that the plaintiff had made out her claim for sexual harassment and that the employer was vicariously liable for the acts of the employees because it had failed to take any adequate steps to prevent sexual harassment in the work place.



Jesus C. Garcia v. The Honorable Ray Alan T. Drilon, et al. Supreme Court of Philippines (2013)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general

The plaintiff successfully sought a Temporary Protection Order against her husband under Republic Act No. 9626 Against Women and Their Children. The husband appealed, claiming the Act to be unconstitutional and the order therefore invalid because the Act favored women over men as victims of violence and abuse to whom the State extends its protection. The Supreme Court held that the Act was valid, highlighting the unequal power relationship between women and men; that women are more likely than men to be victims of violence; and the widespread gender bias and prejudice against women, which all make for real differences justifying the law.



NSW Registrar of Births, Deaths, and Marriages v. Norrie High Court of Australia (2014)

Gender discrimination

After undergoing a sex affirmation procedure, Norrie registered as “non-specific” with the NSW Registrar. After initially approving this registration, the NSW informed Norrie that the registration was invalid. The Administrative Decisions Tribunal of New South Wales agreed with this determination, and the Tribunal’s appeal panel dismissed Norrie’s appeal. At this point, Norrie appealed to the Court of Appeal of New South Wales, which remitted the matter to the Tribunal for determination of Norrie’s sex classification. The Registrar appealed to the High Court. The issue on appeal to the High Court was whether the NSW Registrar was in fact confined to registrations of “male” or “female,” which would preclude Norrie’s registration as “non-specific.” The High Court noted that the Transgender (Anti-Discrimination and Other Acts Amendment) Act of 1996, which amended the Births, Deaths, and Marriages Registration Act of 1995, recognized “ambiguities.” Furthermore, the Court pointed to its holding in AB v. Western Australia, where it stated that "the sex of a person is not ... in every case unequivocally male or female." On this basis, the High Court held that individuals do not have to affirmatively select “male” or “female” following a sex affirmation procedure, and may instead register as “non-specific” with the NSW Registrar.



Patricia Halagueña, et al. v. Philippine Airlines Incorporated Supreme Court of Philippines (2009)

Employment discrimination, Gender discrimination, International law

Female flight attendants employed by Philippine Airlines alleged their collective bargaining agreement was discriminatory due to unequal grooming standards and a compulsory retirement requirement at fifty-five years of age for women but sixty years of age for men. At issue was whether the claim was a labor grievance such that the Regional Trial Court would lack jurisdiction to hear the claim. The Supreme Court held that the regional court had jurisdiction, because the action was not a grievance, but instead a civil action to annul a provision of the contract, and that the question for decision did not involve any determination of labor or union actions.



Richardson v. Oracle Corporation Australia Pty Ltd Federal Court of Australia (2014)

Gender discrimination, Sexual harassment

Rebecca Richardson brought a sexual harassment suit against a former co-worker, Randol Tucker. Before Richardson left the company, Richardson and Tucker were colleagues at Oracle Corporation Australia. At trial, Ms. Richardson prevailed and was awarded $18,000 in damages for which Oracle Corporation Australia was vicariously liable. Ms. Richardson appealed, arguing that the award was inadequate. The High Court highlighted the difficulty in formulating awards of general damages in sex discrimination cases, but acknowledged that harassment can cause severe physical and mental strain. The Court noted that more significant awards were granted to the victims of workplace bullying than the victims of sexual harassment despite “comparable” damage caused by both types of conduct. Based on the distress Richardson experienced because of Tucker’s conduct, the Federal Court found that the $18,000 award was inadequate and substituted an award of $100,000 to compensate Ms. Richardson for psychological injury caused by the sexual harassment.



1 BvR 1409/10 Federal Constitutional Court (Bundesverfassungsgericht) (2011)

Gender discrimination

The Court held that it was in breach of the right to equal treatment enshrined in the German constitution that periods of maternity leave (which affects women only) were not counted towards certain pension benefits whereas periods of sick leave (which affects both men and women) were.



1 BvR 774/02 Federal Constitutional Court (Bundesverfassungsgericht) (2005)

Employment discrimination, Gender discrimination

The Court held that it was unconstitutional to require an attorney without earnings to continue to make compulsory pension contributions during time taken out to care for children (up to the age of three years). Requiring such compulsory pension contributions was viewed as in breach of the right to equal treatment enshrined in the German constitution because it disproportionately affects women who are in the vast majority of cases the ones taking time out to care for small children.



Constitutionality of Social Security Minimum Payment Provision as Applied During Maternity Leave: ADI 1946-5 (in Portuguese) Brazilian Federal Supreme Court (2003)

Employment discrimination, Gender discrimination

The Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) reviewed the constitutionality of the 1998 Amendment 20 of the federal Social Security Law. The amendment imposed a maximum value on the amount of social security benefits that could be paid to a beneficiary under the general social security system at R$1,200 per month. On its face, the R$1,200 maximum applied equally to a number of eligible benefit categories, including maternity or pregnancy-related leave. The amendment was challenged on the grounds that, when read together with Article 7, Section XVIII, of the 1988 Brazilian Constitution, the amendment had a discriminatory effect on women. This provision essentially guarantees that an employee is paid her full salary during maternity leave. By imposing a cap on social security coverage during maternity leave, Amendment 20 would require the employer to cover the difference between the R$1,200 cap and the employee’s full pay. The party challenging the amendment argued that this created a negative incentive to employers who would discriminate in hiring women or in setting women’s salary by paying women less in order to stay under the R$1,200 cap. The Court agreed that Amendment 20 was discriminatory in its effect. In a unanimous decision, the STF held that the effect of Amendment 20 conflicted with the Brazilian Constitution’s equal protection provisions that prohibit discrimination on the basis of sex. The Court therefore ordered that Amendment 20 be interpreted in a manner consistent with the Article 7 of the Constitution such that implementation of the social security cap does not extend to maternity and pregnancy-related leave.



Migdal Insurance Company Ltd v. Abu-Hana Supreme Court of Israel (2005)

Gender discrimination

The court held that loss of earnings damages for minor children should be based upon the national average wage. Factors that might warrant deviation from this presumption include the child’s age, when there is a real chance the child would have worked in another country, and other concrete characteristics of the injured child. Here, because the child in question was injured when she was only five months old, assumptions regarding her future were inappropriate.



Mme Florence B…/IBM, RG 02/00504, Arret n. 635 2003 Cour d’appel de Montpellier (2003)

Employment discrimination, Gender discrimination

Florence B, an employee of SA IBM France, was promoted to the rank of “coefficient 285” in March 1986. She remained in this position for a total of 12 years. Company statistics demonstrated that the average period of employment for male employees of the company in this position was only 4.11 years. Florence B claimed that the company failed to promote her based on grounds of sexual discrimination. IBM France SA was unable to justify Florence B’s lack of career advancement and refused to provide documentation to show that Florence B’s lack of advancement was justified. Florence B was awarded damages of 30,000 euros to compensate her for the lack of career advancement and the court ordered her promotion to “coefficient 114.” The costs of the case were to be determined in accordance with Article 700 of the New Civil Code of Procedure, in favor of the appellant.

Florence B, une employée chez SA IBM France a été promue au rang “coefficient 285” en mars 1986. Elle a resté à ce rang pendant 12 ans. Les statistiques de la compagnie démontrait que les employés mâles restaient à ce rang pour une moyenne de 4.11 ans avant d’être encore promus. Florence B prétendait que la compagnie ne l’a pas promue en conséquence de sexisme. IBM France SA n’a pas pu justifier la manque d’avancement de Florence B et a refuse de fournir des preuves démontrant que cette manqué était justifiée. La cour a ordonné que Florence B reçoit 30,000 euros comme recompension pour la manqué d’avancement. La cour a aussi ordonné qu’elle soit promue au rang “coefficient 114.” Les coûts de litige devaient être determines en accordance avec l’Article 700 de la nouvelle code civile de procedure, en faveur de l’appelant.  



Shakdiel v. Minister of Religious Affairs Supreme Court of Israel (1988)

Gender discrimination

The petitioner, a female resident of Yerucham and an Orthodox Jew, was disqualified from the local religious council because of a stated tradition of not appointing women as members of religious councils. The court found, however, that although the religious council provided services that were religious in character, the qualifications of the council were solely dictated by the general legal system. Thus, the exclusion of the petitioner based upon her gender was discriminatory.



Dr. Naomi Nevo v. National Labour Court Supreme Court of Israel (1990)

Gender discrimination

The petitioner challenged a pension rule requiring women to retire at age 60 while requiring men to retire at age 65. The court held that the rule was discriminatory, because it treated women differently from men where there was no relevant difference between men and women such that the rule served a legitimate purpose. In addition, the fact that the Male and Female Workers (Equal Retirement Age) Law, which corrected the difference, came into force subsequent to the judgment of the lower court did not preclude a showing of discrimination prior to the law coming into effect.



Cour de cassation, N. de pourvoi: 02-44904, 2004 Cour de Cassation, chambre sociale (2004)

Gender discrimination

Contract of employment – dismissal – sexist and racist remarks – real and serious cause. Mr. X, employed as a chef by the company “Pavillion Montsouris”, was dismissed by a letter dated 4 June 1999 for gross negligence following several instances of alleged sexist and racist remarks made at the workplace towards several members of staff. The Court of Appeal of Paris dismissed the case, interpreting the comments made by Mr. X as “out of place” and “of bad taste” but not serious enough to warrant his dismissal. The Court of Cassation rejected this decision, reaffirming that Mr. X’s actions were nonetheless very serious and real (although this was not considered to amount to gross negligence, which only applies if there is an intention to harm towards an employer and cannot be applied between co-workers). The court confirmed that the severity of Mr. X’s sexist and racist comments were such that his dismissal was justified. This case marks the courts’ rejection of the trivialization of serious sexist and racist remarks towards female employees at the workplace.

M. X a été démis de son travail suivant plusieurs allegations d’instances de commentaires sexists et racists qu’il a fait dans son milieu de travail envers plusieurs collègues. La cour d’appel de Paris a rejeté l’affaire, trouvant les commentaires simplement hors de propos et de mauvais goût mais pas aussi sérieux pour justifier son démis. Par la suite, la cour de cassation a rejeté cette decision, affirmant que les actions de M. X ont étés très sérieux (mais pas au niveau de negligence grave, ce qui est seulement applicable s’il existe l’intention de faire mal à un employeur, mais pas à un collègue. La cour a confirmé que la sévèrité des commentaires de M. X envers les employés femelles dans le milieu de travail étaient tells que son démis était justifié.



Ruth Nahmani v. Daniel Nahmani Supreme Court of Israel (1996)

Forced sterilization, Gender discrimination, Gender-based violence in general

A married couple was unable to conceive child naturally. They underwent in-vitro fertilization in Israel for purposes of implanting the fertilized ova in a surrogate mother in the United States. Before the ova could be implanted in a surrogate mother, however, the husband left the wife. The wife applied to the Israeli hospital for release of the fertilized ova, intending to move forward with the surrogacy plan in the United States. The husband opposed the release of the ova. The court held that the husband was estopped from opposing the surrogacy procedure, because he had consented to it and the wife reasonably relied on his consent by going through with the fertilization process. In addition, Jewish heritage is a cornerstone of the Israeli legal system, which values the procreation of children. Relatedly, the right to have children under Israeli law is secondary to the desire not to have unwanted children.



Appeal Concerning an Application for Permission to Revise a Family Registration, ID 28212731 Third Petit Bench of the Supreme Court (2013)

Gender discrimination

Person X1 was female and underwent surgery to become a man. X1 registered as a male and married a woman X2 in 2008. In 2009, X2 bore a child. In 2012, X1 applied to have the family registry reflect that X1 was the child’s father and that the child was born while X1 and X2 were married. The ward mayor in charge of changes to family registries held that there was a problem with the application because Article 774 of the Civil Law was inapplicable to the child’s situation as the child was not related by blood to X1. X1 did not comply with the ward mayor’s request to fix the application, so the ward mayor filled in the family registry for the child with a blank for father and a note that the child was X2’s oldest son. X1 and X2 filed suit to have X1 added as the child’s father on the grounds that the child should be presumed to be a “legitimately” born child based on Article 772 of the Civil Law. The Supreme Court held that the child should be presumed to be the son of X1, overruling the lower court and the ward mayor’s decision. The court reasoned that under Article 3.1 of the Gender Identity Disorder Law, a transgender man should be treated for all purposes under the law as a man. The court held that this includes being able to marry and have a “legitimate” child. Following this decision, the Ministry of Justice issued a notification on 27 January, 2014 directing that this procedure be followed for any similarly situated families. Subsequently, the state changed the family registry for forty-five such couples to reflect that both parents are their children’s parents.



Ali v. State & Ors Delhi High Court (2013)

Gender discrimination

The court declared the current gate pass regime, which required litigants to provide a photo identification when entering the court premises, unconstitutional, because it violates the open court principle by restricting court access to only parties to cases listed on particular day or parties who seek to inspect the record in their cases. The Court noted that the gate pass application would disproportionately affect the economically weak, inter alia, women and children, to access courts.



Delhi High Court Bar Association v. Govt. of NCT of Delhi Delhi High Court (2013)

Gender discrimination

The court held that the Legislative Assembly of the National Capital Territory of Delhi lacked the power to amend central statutes, thereby declaring the Court Fees (Delhi Amendment) Act of 2012, through which the Delhi government had sought to increase court fees payable in Delhi, as void. The court reaffirmed that only the Parliament is empowered to amend or repeal central statutes by virtue of Article 246(4), and the procedure prescribed under the Constitution for obtaining presidential assent must be strictly followed. In addition, the court observed that the Amendment Act adversely impacts fundamental rights and results in violation of Article 38 and 39A of the Constitution of India on various count, such as reducing women’s access to court.



Midwa v. Midwa Court of Appeal of Kenya at Nairobi (2000)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

A woman was being divorced by her husband on the grounds that her testing HIV-positive endangered his life. Although her salary contributed to the mortgage payments for the house, the High Court ordered that she be consigned to the servants’ quarters and denied custody of her children, pending the hearing for her husband’s petition for divorce. She sought a stay of execution of the High Court’s order in her application. The Court of Appeal noted that it is trite law that children be placed with their mother unless there were good reasons not to do so. It also ruled that it was inconceivable that a woman be turned out of a house for which she is a 50% holder. The Court decided in favor of the application and granted a stay of execution.



Decriminalization of Abortion in Cases of Anencephaly: Claim For Disobeying a Fundamental Constitutional Dispositive No. 54/2004 (in Portuguese) Brazilian Federal Supreme Court (2012)

Gender discrimination

In 2004, the Brazilian Federal Supreme Court (Supremo Tribunal Federal or “STF”) considered a claim brought by the National Trade Union of Health Workers and ANIS (Institute of Bioethics, Human Rights, and Gender) to determine whether terminating a pregnancy in which the fetus suffers from anencephaly (absence of major portion of the brain, skull, and scalp) violates the prohibition on abortion as set forth in Brazil’s Penal Code. On April 12, 2012, the STF rendered an 8-2 decision (with one abstention) that abortion in the circumstance of anencephaly is not a criminal act under the Penal Code. The majority extended a woman’s right to terminate her pregnancy to cases of anecephalic fetuses because the fetus does not have the potential for a viable life outside of the womb, and to force a woman to carry such a pregnancy to term is akin to torture. Justice Marco Aurelio and the majority held that to interpret the Penal Code to prohibit such abortion would violate a woman’s constitutional guarantees of human dignity, autonomy, privacy, and the right to health. A woman therefore may seek and receive treatment to terminate the anencephalic pregnancy without risk of criminal prosecution and without judicial involvement.



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.



Claimants (on their own behalf and on behalf of their minor children) v. the Secretary of State for Justice, Immigration and Naturalization Service District Court of the Hague (2010)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Honor crimes (or honour crimes), Sexual violence and rape

The claimants, on behalf of themselves and their two minor daughters, sought residence permits under the Aliens Act 2000. The claimants stated that if they returned to Afghanistan, the mother and daughters would be subjected to inhuman treatment under Article 3 European Convention on Human Rights. The claimants noted that women were systematically disadvantaged and discriminated against in Afghanistan. Women were subject to violence throughout the country, including the claimants’ area of origin, and had no protection from the government (if they even had the opportunity of access to the courts). Women suffer domestic violence, sexual violence, honor crimes, and arranged marriage. Women do not have the same rights as men (even though the constitution states that men and women are equal), are seen as property, and have little to no access to education or health care. The District Court found the mother’s and daughters’ appeals well-founded and ordered the government to consider the applications.



Case Number E.2006/156, K.2008/125 Constitutional Court of Turkey (2008)

Gender discrimination

The Constitutional Court found that a Labour Law that states that an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married is constitutional and not discriminatory. Under Article 14.1 of the Turkish Labour Law, an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married. The Izmir 6th Labour Court found that this provision is discriminatory under the Constitution as it treats male and female workers differently. Using Article 41 and Article 50 of the Turkish Constitution, the Constitutional Court, however, ruled that the law is not discriminatory and does not violate the Constitution. Under Article 41, Turkey has the power to “take necessary measures” to ensure the “peace and welfare” of the family, specifically in regards to the protection of mothers and children. Article 50 allows women, and other protected groups, to enjoy “special working conditions.” The Court found that the goal of the Labour Law to protect both female workers and the family union aligned with these two Articles, and thus was neither discriminatory nor in violation of the Constitution.



Constitutionality of Lei Maria da Penha (Federal Domestic Violence Law ) (ADC 19 and ADI 4424) (in Portuguese) Brazilian Federal Supreme Court (2012)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general

Following a request to Brazil’s Federal Supreme Court (Supremo Tribunal Federal or “STF”) by then-President Luiz Inácio Lula da Silva, the STF reviewed and upheld the constitutionality of the Lei Maria da Penha (“LMP”). The LMP is Brazil’s first law to address the problem of domestic violence against women on a national scale. The law’s provision for the creation of special courts, as well as the law’s differentiated protection of women, had come under scrutiny in many of Brazil’s lower courts as unconstitutional. The STF, however, has previously held that those articles were constitutional. President Silva argued that the LMP was constitutional due to Article 226, § 8 of the Federal Constitution, and Brazil’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women. The Justices agreed that the LMP does not create a law of unequal treatment as between men and women, but addresses the reality of longstanding discrimination and aggression directed at women, and offers substantive mechanisms to promote equality without impinging on the rights of males. The Court also found that the provision of specialized courts is constitutional and not in conflict with state control of the local courts. Finally, with a majority vote of 10-1, the Justices held that the office of the public prosecutor can prosecute domestic violence cases even when the victim fails to appear or file a complaint against her aggressor. The majority reasoned that state intervention is necessary to guarantee the victim’s protection from the risk of ongoing violence, which may be aggravated by the victim appearing in the action against her aggressor.



R. v. Morgentaler Supreme Court of Canada (1988)

Gender discrimination

Prior to this case, a woman had to get the approval from the therapeutic abortion committee of an approved hospital before she could get an abortion in Canada. Abortions performed without this approval were illegal. Three doctors, including Dr. Morgentaler, set up a clinic to perform abortions for women who did not have the necessary approval and the doctors were criminally charged. They argued that the abortion laws violated a woman’s right to security of the person. The Supreme Court of Canada decided that the Criminal Code’s restrictions on abortion were unconstitutional because they increased health risks to women, depriving them of the right to security of the person. Since this decision, no abortion laws have been enacted. Therefore, this decision has had the practical effect of giving women the freedom of choice.



Prakash Mani Sharma and Others v GON, Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (1999)

Gender discrimination

Citing the prevalence of uterus prolapse in pregnant women in Nepal, the petitioner filed that the government should be responsible for providing infrastructures to support women’s reproductive health under Article 20 of the Interim Constitution of Nepal which guarantees the right to reproductive health for all women. The Court ruled that reproductive health was a right tied to all other basic human rights but that, unlike freedom of speech and others, it requires positive infrastructures to be upheld, therefore ordering that a bill be passed providing reproductive health services to pregnant women. In this ruling the Court emphasized that proactive measures must be taken to ensure that women, who face different societal and health challenges, are given the same rights as men; this marks an important distinction between guaranteeing rights and practicing equality.



Sapana Pradhan and Others v. Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

The Forum for Women, Law and Development in Nepal petitioned the Supreme Court to revise a law allowing men to take second wives if their first wife is significantly ill or handicapped and gives consent. The Court found that this law was inconsistent with Article 11 of the Constitution of the Kingdom of Nepal, which guarantees equal rights for women, and with international women’s rights conventions, including CEDAW. In its ruling, the court stated that a husband should care for a sick or handicapped spouse and that requiring consent could promote domestic violence. By taking action to change this law the Court showed a dedication to real reform based on the Constitutional mandate for gender equality, crucially recognizing that accepted traditional practices must be reappraised.



Punyabati Pathak and Others v Ministry of Foreign Affairs and Others Supreme Court of Nepal (2005)

Gender discrimination

The Court upheld a petition to quash a provision of the Nepalese Passport Act that requires women under the age of 35 to procure a letter of consent from a guardian before obtaining a passport. The Court ruled that the provision was contrary to Article 11 of the Constitution because it infringed on equal treatment between men and women, was contrary to the mandate for positive discrimination to ensure equality for women, and inhibited a woman’s right to enjoy the freedoms guaranteed by the Constitution and international human rights treaties. Thus, the Court quashed this provision and directed the Ministry of Foreign Affairs to issue passports to Nepali women without a letter of permission, putting an end to a highly prejudiced practice that had prevented women from accessing education, employment, and cultural enrichment outside of Nepal.



Meera Dhungana and Others v. Office of the Prime Ministers and Others Supreme Court of Nepal (2004)

Gender discrimination

After hearing a petition from the Forum for Women, Law and Development in Nepal, the Supreme Court ruled to invalidate a law allowing men to seek a second wife if, after 10 years of marriage, they have not had a child with their first wife. The Court recognized that this law gave unequal treatment to women and men by not giving comparable recourse to women and implying that infertility was the fault of the woman. The law was therefore inconsistent with Article 11 of the Constitution of the Kingdom of Nepal and with international gender rights conventions including CEDAW. This ruling represents an important step in reevaluating widely accepted laws from a gender equality standpoint. In addition, the Court acknowledged that it was constitutional to employ positive discrimination to guarantee equal rights for women, allowing for proactive defense of women’s rights in Nepal.



Meera Dhungana v Prime Minister and Office of Council of Ministers and Others Supreme Court of Nepal (2005)

Gender discrimination

Meera Dhungana, an important women’s rights advocate in Nepal, petitioned the government to deem void a provision of the Bonus Act in the Constitution of the Kingdom of Nepal that prevents married daughters of a deceased from receiving compensation upon his death. The petitioner claimed that this provision discriminates against women based on their gender and marital status, thus contradicting the Constitution and international gender rights conventions. The Court denied the petition, finding that the Bonus Act treats male and female successors equally unless a daughter is married, in which case she has equal inheritance rights with her husband. This case marks the limitations to legal reforms that the Supreme Court will consider in the defense of gender equality, showing a consideration of Constitutional law, international conventions, and practical outcomes for women.



Meera Dhungana v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)

Gender discrimination, International law

A petition on behalf of the Forum for Women, Law and Development in Nepal called for revision of a law prohibiting dowries. The law imposed a much stricter sentence on the bride’s family than the grooms, making it inconsistent with the equal rights provisions in Article 11 of the Constitution of the Kingdom of Nepal and international human rights standards. The Court’s decision to revise the law, which cited earlier rulings based on Article 11, shows a continued dedication to transforming the Nepalese legal code in the interest of gender rights and equality.



Rama Panta Kharel and Others v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition to replace the existing limitations on dowry size in the Interim Constitution of Nepal (2007) with a prohibition of all dowries based on the mandate for gender equality in Article 11 of the Constitution and international conventions such as CEDAW was quashed on grounds that there was not sufficient proof that allowing limited dowries was discriminatory. However, in recognition of the social harm caused by large dowries including impoverishment, competitiveness, and negative views of women, the Court directed that current laws limiting dowries be enforced more effectively and that sensitization on the harmful aspects of dowries be implemented. This ruling demarcates the limits of petitioning for gender equality against traditional and constitutional law while still showing the willingness of the Court to promote women’s rights through means outside the Constitution.



C.K. & 11 Others v. Commissioner of Police High Court of Kenya at Meru (2013)

Gender discrimination, International law, Statutory rape or defilement

The petitioners are eleven minors and the non-governmental organization that shelters, educates, and cares for the eleven minors. Each child claims to have been subjected to child abuse and defilement in Meru County, where police "neglected...or otherwise failed" to investigate or protect the children in any way.  The High Court of Kenya held that the police have a duty to investigate allegations of sexual abuse made by female complainants, stating that “by failing to enforce existing defilement laws, the police have contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity.”



Chile v. Rodrigo Gacitua Escobar, Criminal Court of Viña del Mar, 2013 Criminal Court of Viña del Mar (2013)

Gender discrimination

The Criminal Court of Viña del Mar sentenced Rodrigo Gacitúa Escobar to life imprisonment for a series of robberies, rapes, and other crimes committed between 2010 and 2012. The prosecutor, Vivian Quiñones, expressed satisfaction at the result, and pointed out the impact of the testimony from the victims. The defense unsuccessfully attempted to discredit the victims’ testimony, including using postings on social media.



In Re Estate of Lerionka Ole Ntutu (Deceased) High Court of Kenya at Nairobi (Family Division) (2008)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.



Achyut Prasad Kharel v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition to require consent from the woman’s husband in a law in the Constitution of the Kingdom of Nepal allowing women to have an abortion on fetuses of less than 12 weeks cited CEDAW conventions mandating equality between men and women on matters relating to family planning. The Court dismissed the petition emphasizing that CEDAW is intended to promote and protect women’s rights and to consider the wording of equality in such absolute terms would, in fact, be contrary to this original intent. With this ruling, the Supreme Court of Nepal shows remarkable dedication to protecting and empowering women as the primary goal in interpreting legal conventions on women’s rights.



Incorporated Law Society v. Wookey, 1912 AD 623 Appellant Division (1912)

Employment discrimination, Gender discrimination

A firm of attorneys was willing to enroll Madeline Wookey as an articled clerk, but Wookey met with opposition from the Cape Law Society, which refused to register her articles. Wookey submitted an application to the Cape Supreme Court, which ordered the Society to register her. The Law Society appealed this decision to the Appellate Division, arguing that Wookey could not be admitted as an attorney because she was a woman. The Appellate Division was called upon to decide whether the term “persons” used in the statute governing admission of attorneys to the bar included only “male persons” or also included women. They determined that “persons” included only male persons, thus excluding women from the legal profession.



In re Maddox Maryland Court of Appeals (1901)

Employment discrimination, Gender discrimination

This case addressed the claims of Etta Haynie Maddox that she should be allowed to sit for the bar examination and receive admission to the bar despite a Maryland state statute limiting bar admission to “male citizens of Maryland.” The Maryland Court of Appeals denied her application, stating that the court did not have the power to enact legislation. Thus until the legislative branch declared that women could be admitted to the bar, the court did not have any power to admit Maddox.



Schlesin v. Incorporated Law Society, 1909 TSC 363. Transvaal Supreme Court (1909)

Employment discrimination, Gender discrimination

In 1909, Judge Bristowe of the Transvaal Supreme Court presided over Schlesin v. Incorporated Law Society, the first case in South Africa to consider whether women had a right to enter the legal profession. The Transvaal Supreme Court held that women were barred from admission to legal practice based on historical practice in South Africa, Holland, and England. Judge Bristowe explained that the Interpretation of Laws Proclamation 15 of 1902 provided that “words of the masculine gender shall include females…unless contrary intention appears” and found that given long historical practice, it was evident that contrary intention did indeed appear in the legislation governing admission to the bar.



In re Goodell Supreme Court of Wisconsin (1875)

Employment discrimination, Gender discrimination

In Goodell, the Supreme Court of Wisconsin refused to include women within the construction of the word “person” and denied Goodell admission to the bar because she was a woman. Judge Ryan noted that that extending the meaning of “person” to include females as well could result in perverse interpretations of the law, and provided examples of the ridiculous results he foresaw, including the “prosecution [of a woman] for the paternity of a bastard…” In support of his conclusion that a gender-neutral statute did not mean that women could be admitted to the bar, Judge Ryan also maintained that the admission of women to the bar was not something contemplated by the state legislators who enacted of the legislation in question; thus he found “no statutory authority for the admission of females to the bar of any court of [Wisconsin].”



In re Lockwood United States Supreme Court (1894)

Employment discrimination, Gender discrimination

The Supreme Court stated that a woman could not be admitted to the bar because she was under a common law disability: she did not have the right to enter into contracts with third persons without the permission of her husband.



Bebb v. Law Society Court of Appeals of the United Kingdom and Northern Ireland (1914)

Employment discrimination, Gender discrimination

Gwyneth Bebb, upon being denied admission to the Law Society to take the preliminary examination to become a solicitor, took the matter to court. In Bebb v. Law Society, the Court of Appeal stated that the question of whether the gender-neutral language of the statutes meant that women could gain admission to the bar was settled through “long usage” in the common law and found that women were not included under “persons” in the Solicitor’s Act of 1843. Additionally, women were considered to have an additional disability at common law, namely that after marriage they are not able to enter into contracts with third parties. As every woman held the potential of being married, this disability was also applied to unmarried women.



Bradwell v. The State United States Supreme Court (1872)

Employment discrimination, Gender discrimination

Myra Bradwell petitioned to be admitted to the bar and to be allowed to practice law, but was denied by the Supreme Court of Illinois. The United States Supreme Court upheld this decision, noting that a woman’s freedom to pursue the occupation of a lawyer was not a “privilege and immunity” of Untied States citizenship that was protected from state restriction by the 14th amendment to the United States Constitution. Thus the court found that excluding women from the bar did not violate the U.S. Constitution.



Hall v. Incorporated Society of Law Agents Court of Sessions (1901)

Employment discrimination, Gender discrimination

Margaret Hall appealed to the Court of Sessions regarding the decision of the Society of Law Agents in Scotland to deny her permission to take the preliminary examination for the Society. Hall argued that she should be given permission because the statute permitted “persons” to become law agents and so, by its terms, did not exclude women. The Society had found that women did not have a legal right to practice law given that “[a]ccording to inveterate usage and custom in Scotland, that practice has in all departments of the law been hitherto confined exclusively to men.” Upon Hall’s appeal, the Court of Sessions also refused to grant her permission because the statute did not explicitly include women, even though it did not explicitly exclude them either. In support of its decision, the court stated that the word “persons” had to be interpreted according to its customary usage; because women had been ineligible to become law agents when the statute was enacted in 1873, the court found the customary usage of “persons” to mean “male persons” and accordingly refused Hall’s appeal.



Talleys Fisheries Ltd. v. Lewis High Court of New Zealand (2007)

Employment discrimination, Gender discrimination

This case concerns the application of §§22(1)(b) and 21(1)(a) of the Human Rights Act of 1993 (‘the Act’). It was first heard before the Human Rights Review Tribunal. The plaintiff, Ms. Lewis, claimed that the defendant, Talleys Fisheries, had engaged in employment discrimination on the basis of gender, alleging that they offered her less favorable terms than her male counterparts who had substantially similar capabilities for substantially similar work. At the defendant’s fish processing plant, there was a noticeable divide between the roles for which male employees were hired and those for which female employees were hired. The roles of male employees included that of filleter, which was more difficult and had a higher rate of pay. Female employees were rarely hired for this role, despite being qualified for it. The Tribunal held that this disparity amounted to gender discrimination. Expert witness for the defendant testified that such gender disparity among roles in fish processing plants was standard industry custom, and, therefore, that the defendant had not engaged in gender-based employment discrimination. The Tribunal rejected both the factual finding of the existence of industry custom, as well as the conclusion that industry custom would be dispositive in this case. It held that mere existence of an industry custom of gender-based hiring practices would not justify gender-based employment discrimination. On appeal, the High Court of New Zealand affirmed.



Easton v. Broadcasting Commission High Court of New Zealand (2008)

Gender discrimination

Plaintiff sought to challenge what he saw as state-sponsored and supported gender bias against men. He alleged that the New Zealand Bill of Rights Act of 1990 is discriminatory because it specifically requires that a range of broadcasts be available to provide for the interests of women while failing to include men, and that in doing so, the Act implicitly discriminates against men. The High Court dismissed the case based on the defendant agencies’ lack of standing to defend the claim, and therefore lack of jurisdiction by the High Court to hear the case.


D.S. Grewal v. Vimmi Joshi Supreme Court of India (2008)

Employment discrimination, Gender discrimination, Sexual harassment

Vimmi Joshi was the principal of a public school who alleged her superior had sent her love letters and made sexual advances towards her. She brought a complaint to the School Managing Committee and was asked to bring the complaint in writing. Subsequently, the Committee received two anonymous complaints against Joshi and her employment was terminated. She challenged the termination claiming sexual harassment. The High Court held that this was a clear case of sexual harassment and ordered disciplinary actions to be taken. The Supreme Court reversed and remanded the High Court’s decision because the Supreme Court had previously laid out guidelines for sexual harassment complaints in Vishaka v. State of Rajasthan; a complaint committee must have been formed to inquire into the complaint further. The Supreme Court held that since the High Court did not fully look into the matter, they could not have found that this was a clear-cut case of sexual harassment. The High Court was directed to appoint a three-member committee, which must be headed by a woman, to hear the case.



In re A-T United States Executive Office for Immigration Review (EOIR) (2011)

Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, International law, Sexual violence and rape

After over six years in immigration court, an immigration judge reversed his previous judgment to give a woman from Mali asylum protection in the United States. As a child in Mali, the woman was subjected to female genital mutilation (FGM). She studied in the United States; her father then ordered her back to Mali to marry her first cousin, despite the fact that she already had three children in the U.S. Fearing forcible marriage and rape for herself and forced FGM for her daughters, the woman applied for asylum. The immigration court denied her request initially in 2004. On appeal, the Board of Immigration Appeals reasoned that FGM is a one-time occurrence, making future persecution unlikely. However, in 2008, the Attorney General intervened, pointing to the interconnectedness of sexual violence and the possibility of future persecution. The Attorney General directed that the case be reconsidered, and after a new trial, the judge granted the woman asylum, indicating that the threat of spousal rape alone was enough to constitute persecution. The case is important for asylum applicants, because violent acts like FGM are no longer to be considered isolated events unlikely to lead to further persecution.



Joseph v. Canada Federal Court of Canada (2006)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general

Ms. Joseph is a citizen of Grenada who fled to Canada in order to escape a violent common law relationship she had been involved in for 15 years. During Ms. Joseph’s relationship with her common law spouse, she tried to leave him several times; however, he always found her and the abuse would continue. She applied for protection in Canada pursuant to the Gender-Related Guidelines of the Immigration and Refugee Protection Act, which aids determination of the risk facing women who are fleeing gender-specific persecution. Ms. Joseph based her claim on the ground that there is a substantial risk that she would face torture and cruel and unusual treatment at the hands of her former common law spouse, and there is more than a mere possibility that she would face gender-based persecution, if forced to return to Grenada. Despite the fact that the officer reviewing Ms. Joseph's application found her testimony and evidence to be credible, her application for protection was denied on the ground that she had failed to rebut the presumption of state protection in Grenada. When Ms. Joseph was informed that removal arrangements had been made, she brought a motion for a stay of removal, which was granted. The court ordered that Ms. Joseph’s application for judicial review be allowed, due to “discrepancies in logic” regarding the officer’s estimation of her evidence and his decision on her application, and remitted the matter to a different state officer for redetermination of her application for protection.



Mashita Katakwe v. Hakasenke High Court of Zambia (2006)

Gender discrimination, Gender violence in conflict, Sexual harassment, Sexual violence and rape, Statutory rape or defilement

Rosaria, a thirteen-year-old schoolgirl, was raped by defendant teacher, and consequently contracted a venereal disease. The rape occurred in the defendant's home, which Rosaria entered with the intent of picking up some past school papers that the defendant had failed to bring to school on multiple occasions. After bringing this incident to the Head Teacher's attention, it was uncovered that the defendant had done this before, that measures had been taken to warn or protect students from the defendant, that the defendant had only received a verbal warning, and that the previous student victim had transferred to another school. In his defense, the defendant claimed that he was in a relationship with Rosaria, to which she consented, as evidenced by a Valentine's Day card that Rosaria had given him. The High Court held that the defendant breached the duty of care that he owed to his pupils and was therefore negligent, noting that it is the duty of a school teacher to care for his pupils, as would a father for his family. The Court reasoned that school teachers are in a position of moral superiority, and a young schoolgirl's "consent" is fictitious in light of the ethics compelling a teacher to not engage in sexual relations with schoolgirls, a young girl's cognitive inability to truly consent, as well as Section 138 of the penal code, which states that defilement of a girl under the age of 16 is an offense. Notably, the Court held that society's indignation of this type of behavior ought to be reflected in the amount of damages awarded. The Court entered a judgment in favor of Rosaria for K 45,000,000 for her pain and suffering, medical expenses, aggravated damages, and mental torture. Furthermore, the Court held that the School, Ministry of Education, and the Attorney General are vicariously liable for this judgment, noting that the government is responsible for all school going children in the care of its agents, including teachers like the defendant.



Scuncio Chevrolet, Inc. v. Salandra Rhode Island Superior Court (1988)

Employment discrimination, Gender discrimination

Plaintiff worked for the defendant and sold cars. Following termination of her employment, she filed a complaint with the Humans Rights Commission. The Commission found she was entitled to back pay, fringe benefits, interest, and that the defendant was to cease and desist its unlawful employment practices. In response to defendant’s appeal, the court found that the plaintiff’s testimony that she was never confronted for unsatisfactory work performance, and she neither received formal evaluations, nor written or oral warnings was credible. Notwithstanding her positive performance, the plaintiff was terminated. The defendant argued that she was “laid-off,” and that the Commission failed to take into account that the defendant did not hire a male replacement for the plaintiff’s position. However, the defendant did hire a male employee a day before it fired the plaintiff. The court found that the Commission was entitled to reject the defendant’s testimony and find that it was clear that the plaintiff was replaced by a male employee. Thus, the Commission’s finding of liability was affirmed.



Allen v. Dep't. of Employment and Training Vermont Supreme Court (1992)

Gender discrimination, Sexual harassment

Plaintiff was denied unemployment benefits by the Employment Security Board because prior to quitting her job, she did not notify her business manager that she was being sexually harassed by her supervisor. The plaintiff appealed. Plaintiff worked as a secretary for housekeeping and maintenance.  For several months during her employment, the plaintiff’s supervisor made repeated sexual advances towards her by grabbing her, kissing her, and apologizing thereafter.  Plaintiff complained once, but otherwise never complained to anyone other than her supervisor, and eventually quit her job out of fear of further unwanted sexual advances.  She testified that she had never received a personnel policy, never knew of the existence of such a policy, and believed that she was to complain to her immediate supervisor.  Notwithstanding, the Board found the plaintiff did not show that she had “good cause” to quit her job, since her business manager had no knowledge of the harassment.  Under 21 V.S.A. § 1344(a)(2)(A), a party may not receive unemployment benefits where she quits voluntarily unless she shows she quit with “good cause.”  On appeal, the court found that if there were a personnel policy in effect, there was no evidence that it was ever made known or available to the defendant’s employees.  The court found that the plaintiff could not adhere to a policy (to notify a manager) that is not “sufficiently disseminated by the employer to employees.”  Thus, the court reversed the Board’s conclusion and remanded the matter.



In re Grievance of Butler Vermont Supreme Court (1997)

Gender discrimination, Sexual harassment

Plaintiff worked for the defendant as a police officer. During training where plaintiff was one of three women amongst twenty-four participants, plaintiff started to feel that she could never raise complaints because of her gender as a result of comments such as how the male troopers had better “watch out” or she would charge them with sexual harassment, or about another female trooper whose sex discrimination complaint had been dismissed by the Board. Plaintiff also received lewd and sexually inappropriate comments from a male officer in training who also attacked her in a kick-boxing fashion, and ridiculed her when she protested. After completing training, plaintiff was the only female full-time officer in her department and continued to experience more harassment, including exposure to openly-displayed pictures of semi-nude women, an officer telling his girlfriend that plaintiff was his sex slave, personnel and supervisors frequently discussing plaintiff’s marital difficulties, and interfering with her personal relationship with a former police officer. During the plaintiff’s first evaluation, she received a good score for her work performance but her overall score was lowered due to comments from others. Further, when it was a male colleague’s birthday, he demanded the plaintiff kiss him and when she refused, he made fun of her appearance. When plaintiff’s supervisor did not respond to her complaints regarding these incidents, she met with the Commissioner, setting forth her sexual harassment claims. She was offered an unfeasible transfer far from her home and children as the only alternative. When the plaintiff failed to report to the transfer location, she was terminated. Plaintiff subsequently filed claims for sexual harassment and hostile work environment with the Board. The Board found there was discrimination and ordered her reinstatement and reimbursement of back pay. In response to the state’s appeal, the court agreed with the Board and found that the plaintiff’s work environment, characterized by her colleagues’ and supervisor’s attitudes towards her as a woman, established that she was judged more harshly than her male colleagues. The court found the evidence supported the Board’s conclusion that there existed a hostile work environment and that the plaintiff was sexually harassed.



Motsinger v. Lithia Rose-Ft, Inc. Oregon Court of Appeals (2007)

Employment discrimination, Gender discrimination, Sexual harassment

Plaintiff, who was employed for fourteen months by defendant as a part-time receptionist, alleged that she was subjected to repeated acts of sexual harassment by several male employees. Plaintiff also alleged that her employment was terminated in part as retaliation for reporting this sexual harassment to management. Plaintiff brought a wrongful termination action against the employer, alleging claims of sexual harassment under Or. Rev. Stat. § 659A.030(1)(a), retaliation under Or. Rev. Stat. § 659A.030(1)(f), wrongful discharge, battery, and intentional infliction of emotional distress. The trial court denied defendant's petition to abate the proceeding pending arbitration, ruling that the arbitration clause contained in plaintiff's employment contract with defendant was unenforceable because it constituted an unconscionable contract of adhesion. The appellate court found that the employee did not show that the contract formation carried indicia of procedural and substantive unconscionability other than an unequal bargaining power. Consequently, the Court of Appeals of Oregon reversed and remanded the case.



Ettner v. City of Medford Oregon Court of Appeals (2001)

Employment discrimination, Gender discrimination

Although plaintiff had satisfactorily completed her firefighter-training year and had been highly recommended for advancement, she was found to have allegedly failed five final task tests and her employment was terminated shortly thereafter. Plaintiff filed an action against defendant City of Medford for unlawful employment practice alleging she was unlawfully discharged as a firefighter on the bases of gender and of perceived impairment in violation of ORS 659.030 which provides, in pertinent part, “(1) It is an unlawful employment practice: (a) For an employer, because of an individual's . . . sex, . . . to . . . discharge from employment such individual. However, discrimination is not an unlawful employment practice if such discrimination results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer's business.” Plaintiff was required to prove only that she was treated less favorably than male candidates because of sex, which is sufficient to establish a discriminatory motive. The Circuit Court found for the employee on the gender discrimination claim, and the appellate court affirmed. Here, the grading was unfair to plaintiff because it was highly subjective and allowed for too much internal bias. Furthermore, because two of the evaluators were officers who had previously expressed reservations regarding a gender-integrated department on behalf of other firefighters, it was a permissible inference that those evaluators attempted to give effect to the line firefighters' animus by giving plaintiff lower scores than she deserved. These testing problems existed within a context, revealing a general animosity toward female firefighters as firemen had told plaintiff that they were having problems with their wives over the hiring of a woman and had expressed concerns about plaintiff’s ability to ably assist the other firefighters during a fire despite plaintiff’s proven physical ability. Finally, plaintiff's success as a firefighter before and after her experience in Medford provided circumstantial evidence of discriminatory treatment. Thus, the appellate court affirmed the judgment, concluding that plaintiff satisfied her burden in proving that gender was a substantial and impermissible factor in the city's decision to discharge her.



A.L.P. Inc. v. Bureau of Labor & Indus. Oregon Court of Appeals (1999)

Gender discrimination, Sexual harassment

Here, petitioner, a male employer, sought review of a final order of the Commissioner of the Bureau of Labor and Industries, which found petitioner had created an intimidating, hostile and offensive working environment based on respondent’s gender, in violation of Or. Rev. Stat. § 659.030(1), which provides, “(1) [i]t is an unlawful employment practice: (B) [f]or an employer, because of an individual's . . .  sex . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”  The statute does not require that the unlawful employment practice be “sexual” in nature to be actionable.  It requires only that the practice have occurred “because of” the employee’s sex.  Furthermore, no independent corroboration of a complaining witness is required to establish an unlawful employment practice claim. Petitioner, the owner of a store selling adult toys and gifts, only referred to his employee, respondent Theresa Getman, using derogatory terms.  Petitioner also frequently passed derogatory comments on the appearance of female customers and directed a number of sexually inappropriate remarks towards Getman.  Additionally, petitioner frequently threatened Getman that he was going to “bitch slap” her and on several occasions slapped Getman on the top of her head and across her face.  Throughout the duration of the employment, Getman was physically ill. She had a stomach ache and found herself unable to sleep because of the stress.  The appellate court affirmed the finding that respondent was the victim of gender discrimination in her employment, as there was substantial evidence to support the finding that all of petitioner’s offensive conduct had occurred because respondent was a woman.



Roberts v. Dudley Washington Supreme Court (2000)

Employment discrimination, Gender discrimination

Appellant-employer filed an appeal from a decision of the Court of Appeals, which reversed a ruling entered in the Superior Court, granting appellant’s motion for partial summary judgment and dismissing appellee-employee’s wrongful discharge claim. The Supreme Court of Washington affirmed the appellate court’s decision, holding that appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment. When appellee was on unpaid maternity leave, appellant discharged appellee, claiming that the position was no longer available due to a business slowdown. Appellant re-advertized the position one year later, but when appellee applied she was refused reemployment. Appellee claims the reason given for her discharge (i.e., economic slowdown) was pretextual, whereas the real reason for her discharge was that she was pregnant. Appellee filed a claim for common law wrongful discharge in violation of the public policy against sex discrimination. Although an indefinite employment contract is generally terminable at will, an exception to the at-will rule exists in the form of a common law cause of action in tort for wrongful discharge of an employee where the discharge contravenes a clear mandate of public policy. In this case, public policy against gender discrimination is grounded in the constitution, statute, and prior court decisions. Therefore, the Supreme Court of Washington affirmed the judgment of the Court of Appeals, as appellee properly stated a cause of action for the tort of wrongful discharge based on the clearly articulated public policy against sex discrimination in employment.



Mackay v. Acorn Custom Cabinetry Washington Supreme Court (1995)

Employment discrimination, Gender discrimination

Plaintiff-ex-employee challenged the jury instruction given by the Superior Court, which directed the jury to find in plaintiff’s favor in a discrimination case brought pursuant to Wash. Rev. Code § 49.60.180(2), only if it concluded, inter alia, that gender was the determining factor in the decision by defendant ex-employer to discharge plaintiff. RCW 49.60.180(2) provides that “[i]t is an unfair practice for any employer . . . (2) [t]o discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained guide dog or service dog by a disabled person.” The Supreme Court of Washington declined to read the “because of” language of the statute, as requiring proof that one of the attributes enumerated in RCW 49.60.180(2) was a “determining factor” in the employer’s adverse employment decision. Rather, the Supreme Court reversed the lower court’s decision, holding that in order to prevail on a discrimination claim brought pursuant to RCW 49.60.180(2), plaintiff only needed to prove that her gender was a “substantial factor” in defendant’s decision to terminate her employment.



Hat Six Homes, Inc. v. State Wyoming Supreme Court (2000)

Gender discrimination, Sexual harassment

Appellant-employer challenged the decision from the District Court, affirming findings of appellee, Wyoming Department of Employment, Unemployment Insurance Commission, holding, among other things, that appellee employee had quit her employment with appellant employer for good cause under Wyo. Stat. Ann. § 27-3-311(a)(i) (1997).  In this case, appellee-employee left her employment because of sexual harassment and hostile work environment. This included the president of appellant-employer touching her under her shirt and behind her knees in an unwelcome manner and continuing this behavior after appellee employee asked him to stop. Additionally, conduct of the vice-president created a tension that “could [be] cut . . . with a knife . . .” On several occasions, the vice-president threw around staplers and cellular phones and yelled at customers and other employees. The Supreme Court of Wyoming affirmed the District Court’s decision and held that this conduct on the part of appellant-employer sufficed for the determination that appellee-employee had quit her employment for good cause.


Allegheny County v. Wilcox Pennsylvania Commonwealth Court (1983)

Gender discrimination

The defendant-appellant, the Court of Common Pleas, appealed a ruling by the Pennsylvania Human Relations Commission (“PHRC”).  The PHRC had ruled that the defendant discriminated against female secretaries with respect to compensation and directed them to upgrade the secretaries’ wages and to pay them back pay.  The defendant argued that the PHRC could not require it to increase the wages and also that it was not considered an “employer” under 43 P.S. § 954(b).  The defendant argued that the definition of employers does not include a reference to courts and that any application of the Pennsylvania Human Relations Act violates the doctrine of separation of powers by allowing the executive and legislative branches to interfere upon the judicial branch. The court found that the defendant failed to show how its authority was encumbered by the Human Relations Act.  The court also found that compelling the upgrade or equalization of pay was proper where, inversely, a court could compel a legislative body to spend money that is reasonably necessary for the body’s proper operation and administration.  Thus, the court affirmed the PHRC’s finding and ruled that the PHRC could require the defendant to increase the female secretaries’ wages and order back pay.



Haddad v. Wal-Mart Stores, Inc. Supreme Judicial Court of Massachusetts (2009)

Employment discrimination, Gender discrimination

Here, the plaintiff worked as a staff pharmacist for the defendant for ten years.   At a subsequent point, she became temporary pharmacy manager.  Until the plaintiff was terminated thirteen months later, she was paid at a lower rate as a pharmacy manager than her male counterparts.  She was told by the defendant that she would receive the difference in pay but never did.  She complained numerous times and finally received a check for the pharmacy manager bonus that others received, but never received the thirteen months’ worth of additional pay.  Prior to her termination, the plaintiff was questioned about two prescriptions that were fraudulently written—one while she was on duty and the other was written while a male pharmacist was on duty.  The pharmacy technician immediately admitted that she falsified the prescription from when the plaintiff was on duty.  The plaintiff denied knowledge of the fraud, but she was terminated based on her failure to secure the pharmacy.  The pharmacy technician was also terminated. The male pharmacist however was not fired or disciplined for failing to secure the pharmacy area.  At the time of the plaintiff’s termination, twenty of the twenty-one managers above the pharmacy manager level were male and all pharmacy technicians were female.  The court found that the evidence was sufficient to show that the defendant discriminated against the plaintiff in terminating her.  The court reasoned that a reasonable jury could have disbelieved the defendant’s reason for terminating the plaintiff; that the plaintiff’s base wage was lower than her male counterparts, and that there was discrimination based upon the fact that the male pharmacist on duty when another prescription was falsified was not disciplined or terminated.  The court found an award of compensatory damages was supported by the evidence, but that punitive damages amounting to $1 million were not warranted because the defendant’s conduct was not so outrageous or egregious.



College-Town, Div. of Interco, Inc. v. Mass. Comm’n Against Discrimination Supreme Judicial Court of Massachusetts (1987)

Employment discrimination, Gender discrimination, Sexual harassment

Here, an employer appealed the superior court’s decision that it discriminated against an employee on the basis of sex.  A few weeks after College-Town hired the employee, Rizzi, Rizzi’s supervisor began making sexually suggestive comments to her.  Once he touched her back, and another time he put his hand over a slit in her dress and told her to fix her skirt.  On one occasion, Rizzi asked her supervisor to review her performance in a meeting and he told her that she handled it well and that he “liked the way [her] tits stood out in the red shirt.”  Once, he asked her if she was a good f----.  Rizzi then spoke to the director of manufacturing, who told her he was “not qualified to go into these things,” and refused to talk to her.  Rizzi had to wait several days before she could tell someone else at work.  A College-Town executive finally spoke with the supervisor about the allegations, which were denied.  A meeting was held to determine the truth of the allegations, which the supervisor and all other women in the department attended except for Rizzi.  She was not asked to the meeting or notified of its occurrence.  At the meeting, the supervisor explained the allegations and Rizzi’s co-workers were generally supportive of the supervisor.  College-Town made no further investigation.  Prior to that meeting, Rizzi sought a promotion to a position in another department.  After the meeting was held, Rizzi was informed she was not qualified for the promotion and College-Town hired someone with more knowledge and experience.  Soon thereafter, College-Town attempted to transfer Rizzi as tension in the office was affecting productivity and she declined.  Rizzi was never told the transfer was mandatory, and within weeks of her denial, she was discharged. The trial court found that College-Town’s supervisor created a sexually harassing work environment, it failed to remedy the situation, and it retaliated against the employee in its attempt to transfer her and discharge her once she declined the transfer.  Id. at 158.  The Massachusetts Supreme Court affirmed the decision and found that sexual harassment may constitute discrimination under Gen. L. C. 151B, §4(1), which prohibits employment discrimination on the basis of gender.



Jackson v. Birmingham Board of Education United States Supreme Court (2005)

Gender discrimination

Mr. Jackson, a teacher and basketball coach, brought suit against the Birmingham Board of Education (“Board”), alleging that the Board retaliated against him because he had complained about sex discrimination in the high school’s athletic program. Specifically, Mr. Jackson complained to his supervisors that the girls’ basketball team was not receiving equal funding and equal access to athletic equipment and facilities. After the Board terminated Mr. Jackson’s coaching duties, he filed suit in the United States District Court for the Northern District of Alabama. He alleged that the Board violated Title IX by retaliating against him for protesting the discrimination of the girls’ basketball team. The district court dismissed Mr. Jackson’s complaint on the ground Title IX did not cover claims retaliation, and the Court of Appeals for the Eleventh Circuit affirmed. The Unites States Supreme Court reversed, holding: “We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” The Court reached this conclusion, in part, because “[r]eporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished.” In response to the Board’s claim that it had no notice that Title IX prohibited retaliation, the Supreme Court held that Title IX itself supplied sufficient notice to the Board, as did previous Courts of Appeals decisions that had considered the issue.



Strickland v. Prime Care of Dothan United States District Court, M.D. Alabama, Southern Division (2000)

Gender discrimination, Employment discrimination

Ms. Strickland sued her former employer, Prime Care of Dothan, on the theory Prime Care terminated her employment as a medical assistant because of her pregnancy. Prime Care filed a motion for summary judgment on the sole issue of whether Ms. Strickland had sufficient evidence to create an issue of fact on the question of pretext. In order to rebut the inference of discrimination, Prime Care was required to articulate a legitimate nondiscriminatory reason for its decision to terminate Ms. Strickland. To this end, Prime Care asserted that it based its termination decision on violation of work rules, including that Ms. Strickland was rude and/or unprofessional on several occasions, was frequently tardy, and failed to return to work after attending a doctor’s visit. Because, if true, the reasons asserted by Prime Care were nondiscriminatory, the burden shifted back to Ms. Strickland to show that the proffered reasons were really pretext for unlawful discrimination. Ms. Strickland achieved this by showing her conduct did not violate Prime Care’s established policies, and presenting circumstantial evidence that, if true, demonstrated her supervisor harbored a discriminatory animus toward unmarried pregnant women. Prime Care also argued that even if it did discriminate against unmarried, pregnant women, such discrimination did not violate Title VII because the differential treatment was not based on sex. Rather, Prime Care claimed such a policy was neutral toward women, since women were both members of the group of married pregnant women and unmarried pregnant women. The court held that Congress and the Supreme Court had expressly rejected this argument, finding that the terms “because of sex” or “on the basis of sex” include because of or on the basis of pregnancy. Thus, an employer violated the Pregnancy Discrimination Act when it premises an employment decision, in whole or in part, on the fact that one of its female employees or applicants was pregnant out of wedlock. For these reasons, the court denied Prime Care’s motion for summary judgment.


Kopenga v. Davric Maine Corp. Maine Supreme Court (1999)

Employment discrimination, Gender discrimination

The plaintiff applied for a job to work at the defendant’s race track as a security officer. The defendant’s director of security informed the plaintiff that he normally did not hire women and instead employed her in the dispatch hour to answer telephones and complete paper work. The plaintiff had a bachelor’s degree in criminal justice and experience in security work. The plaintiff subsequently requested to work the late night security shift at the stable gate to work additional hours. Her request was denied as the director did not hire women for this position. When the general manager learned of the incident, he informed the director that he violated company policy and directed him to change his discriminatory practices. Ultimately, the plaintiff left the company due to disputes over her work assignments and she filed a complaint with the Maine Human Rights Commission and sued the defendant. The trial court determined that but for the director’s gender discrimination, the plaintiff could have worked an additional sixteen hours each week for thirty-three weeks and that she would have earned overtime. The Supreme Court of Maine held that the plaintiff was entitled to back pay for these lost wages under 5 M.R.S.A. § 4613.



Hill v. Ford Motor Co. Missouri Supreme Court (2009)

Gender discrimination, Sexual harassment

Cynthia Hill worked under the supervision of various people including Kenny Hune. Mr. Hune often made sexual comments to Ms. Hill and asked her inappropriate personal questions. Ms. Hill told Mr. Hune that she was offended by his comments and she repeatedly rejected his sexual advances. Upon receiving a complaint about Mr. Hune from Ms. Hill and another female employee, group leader Pete Wade raised these complaints with Mr. Hune. A few months after this, Ms. Hill was assigned to Mr. Hune’s supervision, where Mr. Hune refused to work with her, branded her a hostile worker, and created problems over small or non-issues. When Ms. Hill sought to bring a complaint to Mr. Edds, the labor relations supervisor, Mr. Edds told Ms. Hill to get psychiatric help and not return to work until she had done so. Upon receiving such treatment Ms. Hill resorted to the company’s 24-hour “Hotline” to report Mr. Edds and Mr. Hune. An hour later, Mr. Edds had suspended Ms. Hill from work for three days for a minor mistake. Upon Ms. Hill’s return to work, Mr. Edds told her she had been fired. The Missouri Supreme Court held that there were genuine issues of material fact to preclude the grant of summary judgment in favor of the employer. There was enough evidence for a jury to find that Mr. Hune had created a hostile work environment through his constant sexual harassment, which would constitute gender discrimination under MHRA 213.055.


Lacey v. State Nebraska Supreme Court (2009)

Gender discrimination, Sexual harassment

Lacey worked at the Department of Correctional Services as a temporary employee. Lacey’s supervisor was known for “creating a fun atmosphere” by “giving each other a hard time in a joking manner.” The supervisor’s jokes and questions were often sexual in nature, including inquiring Lacey about the frequency, locations, and types of sex she and her boyfriend had. Towards the end of Lacey’s temporary placement, the jokes and questions were made daily and became increasingly vulgar. Supervisor also subjected Lacey to unwanted touching. Lacey eventually complained and the supervisor was ordered to stay away from here. Soon after, Lacey was terminated under questionable circumstances. Lacey filed a complaint against the Department of Correctional Services on June 7, 2006, alleging, among other things, sexual harassment in violations of the Nebraska Fair Employment Practice Act (NFERA). The trial court awarded Lacey $60,000 in damages for her sexual harassment claim. The State appealed.



FBG Serv. Corp. v. Anderson Nebraska Court of Appeals (1993)

Employment discrimination, Gender discrimination

Anderson worked the night shift at FBG Service Corp (“FBG”). A review conducted in November 1988 stated that Anderson’s work was “excellent.” In early or mid-July 1989, a coworker recommended Anderson for the recently vacated job of daytime supervisor, and Anderson expressed interest. The person with hiring authority told coworkers that he preferred a man for the job as it involved heavy lifting. A month later, the firm hired a man with 21 years of experience in the military and 18 years of experience in repairing machinery for a “janitorial” position at a rate of $4 an hour.



Mancini v. Township of Teaneck New Jersey Supreme Court (2004)

Gender discrimination, Sexual harassment

Plaintiff was hired as a police officer. Since the beginning of her employment she felt that other members of the Department were unhappy because they felt it was not a job for women. Plaintiff also suffered sexual harassment. During her first four years there, plaintiff had a locker in the men’s room as there were no women’s locker rooms, and male co-workers would shower and walk around naked in the locker room. Plaintiff’s boss told her that he did not expect her to make it as an officer, that he did not want women on the job, and that he would not accommodate her, but that he had a mattress waiting for her in his closet. The plaintiff interpreted this as a sexual advance. Plaintiff also received other inappropriate remarks, for example, in response to plaintiff’s complaint about not having a shower, her boss told her several times that he would wash her. Officers also kept pornographic magazines and pinups both at work and in patrol cars. The plaintiff also received in her mailbox at work panties, a motel key, and a note reading, “back stabbing c-t.” There were also sexual cartoons, some pertaining to her and others to other women. Plaintiff ultimately sued for sexual harassment and sex discrimination. At trial, the jury awarded the plaintiff $1 million in compensatory damages and $500,000 in punitive damages. The trial court vacated the punitive damages and reduced the compensatory damages. The defendant appealed, asserting laches – that the plaintiff unreasonably delayed in filing the suit. The court found the defendant did not make an adequate factual record in this defense and it otherwise affirmed the holding finding the defendant liable.


Gallucio’s v. Kane Delaware Superior Court (1995)

Gender discrimination

Here, the defendant-employer appealed the decision of the Equal Employment Review Board that it had discriminated against the plaintiff because of her sex, in violation of 19 Del. C. § 711.  The plaintiff was a waitress for almost four years when she requested maternity leave to the restaurant’s owner and general manager.  She was granted maternity leave and told she could return to work to her previous schedule when physically able.  Id. at *1.  When the plaintiff attempted to return to work three months later, she was told there were no positions available, but at that time, six part-time waitresses were hired.  Id.  When the plaintiff applied for unemployment compensation, she was offered a position but with a reduced schedule, and which gave her less time serving on the patio, where greater tips could be yielded than inside.   The plaintiff was never replaced by a male employee but did lose income as a result of her reduced schedule.  Id.  The Equal Employment Review Board found the defendant discriminated against the plaintiff.  On appeal, the court noted that to prove a prima facie case of gender discrimination, a plaintiff must satisfy a four-prong test as articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Id.  Under the test, the plaintiff was required to show that she “(1) was within the protected group; (2) that [she] was qualified for the position in question; (3) that despite [her] qualifications, [she] was rejected or discharged; and (4) that after [her] rejection, the employer continued to seek applicants from persons with the same qualifications, or that [she] was replaced by a person outside of the protected group.”  Id.   However, if at that point, the employer could show a reason for its actions that were non-discriminatory, a plaintiff may not necessarily prevail on a gender discrimination claim.  The court found that the Board did not consider the employer’s rebuttal of the plaintiff’s showing of gender discrimination—testimony from five witnesses that the defendant often switched waitresses from the patio to the inside of the restaurant, and that other employees who returned after a leave of absence returned on a reduced pay arrangement.  Id.  Thus, the court remanded the case to the Board to more carefully review the defendant’s rebuttal.



AD 1996 nr 79 Supreme Court of Sweden (1996)

Gender discrimination

"An employer may not discriminate against a person who, with respect to the employer,1. is an employee; 2. is enquiring about or applying for work; 3. is applying for or carrying out a traineeship; 4. is available to perform work or is performing work as temporary or borrowed labour. (…)"].  In AD 1996 nr 79 the Swedish Labour Court (Sw: Arbetsdomstolen) ruled that a municipality was applying a salary development system that constituted gender-based discrimination.  A female head of department had received, for four time periods, a lower wage than a male head of department who was employed by the same municipality. The municipality argued that the differences in salary were justified by differences in the two jobs.  However, the court rejected this claim, finding that during the last two time periods, the employees' jobs had in effect been equivalent.



Craine v. Trinity College Supreme Court of Connecticut (2002)

Employment discrimination, Gender discrimination

Here, the plaintiff was hired by the defendant as an assistant professor. Throughout her employment, she was reappointed and complimented by the appointments and promotions committee. In her positions, the plaintiff taught, researched, and participated in service efforts for the defendant. Id. at 629-30. Despite that the plaintiff published several articles, taught students and supervised student research, during her tenure review in her sixth year of employment, she was denied tenure. Id. at 632-33. The tenure committee found the plaintiff was a “good teacher but not an extraordinary one,” and found her service to the school to be adequate. However the committee found her research and scholarship was inadequate, since she had only published one article in a refereed professional journal (notwithstanding that she had other publications). Id. at 634. The plaintiff claimed that the tenure process as it applied to her was discriminatory. The court noted that to establish a prima facie case of gender discrimination in the work environment, a plaintiff must show: “(1) she was a member of a protected class; (2) she was qualified for her position; (3) she was discharged; and (4) the termination occurred under circumstances giving rise to an inference of discrimination.” Id. at 225-26. The court noted to meet the fourth element, the plaintiff must show that “she was treated less favorably than comparable male employees in circumstances from which a gender-based motive could be inferred.” Id. at 638. Once a prima facie case is established, to succeed on a gender discrimination claim, the plaintiff must go further to show that the defendant was motivated by an intent to discriminate against the plaintiff in its acts.



Okun v. Misiewicz Connecticut Superior Court (2001)

Gender discrimination

Here, the plaintiff filed a claim of sexual harassment against the defendant under Gen. Stat. § 46a-60, alleging that the harassment caused low self esteem, damage to the plaintiff’s career and reputation, lost wages, lost insurance, lost fringe benefits, and physical and mental pain and suffering. The defendant argued that the plaintiff could not bring a claim for a hostile working environment because under § 46a-82, the plaintiff was required to exhaust administrative remedies prior to seeking redress in court. Id. at *1. Specifically, the plaintiff was required to file a complaint with the Commission on Human Rights and Opportunities and obtain a release from the Commission to file an action in court. Id. at *2. The plaintiff failed to do either of these and claimed she was exempt; she claimed the Commission’s remedies were inadequate because the Commission has no authority to award compensatory and punitive damages, both of which the plaintiff sought. Id. The court dismissed the plaintiff’s complaint as it found that the Commission’s authority is not based upon a plaintiff’s preferred remedy; she must still file a complaint with the Commission and obtain a release to bring an action in court. Id. at *4.



KKO 1995:152 Supreme Court of Finland (1995)

Gender discrimination

The issue here was whether the employer was allowed to lay off an employee returning from maternity leave due to a change of duties. During Ms. Mari Karjanoja's maternity and parental leave, her duties as a product manager had changed as a result of the company restructuring, and the employment relationship of her substitute, Ms. Tuulia Pärkö, had been made permanent. When Ms. Karjanoja returned from maternity leave, she was not offered back her duties as a product manager as the employer regarded Ms. Pärkö to be better qualified to take care of such duties in the changed situation. Later, for financial and production related grounds, the employer laid off Ms. Karjanoja.  Section 34 h of the Old Finnish Employment Contracts Act (320/1970, as amended) (the "Old Employment Contracts Act") prevented the displacement of an employee returning from maternity and parental leave on the basis that a substitute to the employee would be able to carry out the work duties better than the employee. Therefore, the Supreme Court considered that the employer should have offered Ms. Karjanoja the changed work duties of the product manager which were comparable to her previous duties. Since the ground of Ms. Karjanoja's termination was the employer acting against Section 34 h of the above-mentioned Old Employment Contracts Act, the employer did not have sufficient grounds for the termination. On these grounds, the Supreme Court, upholding the decisions of the District Court and the Court of Appeal, ordered the employer to pay damages to Ms. Karjanoja.



KKO 1992:7 Supreme Court of Finland (1992)

Gender discrimination

The issue here was whether the employer company was guilty of discrimination in working life. Marja-Liisa Laukkanen had been working at Oy Kolmeks Ab. During her four months trial period, she got pregnant on which she informed her employer. Soon after that, she was dismissed on the grounds that she was on her trial period. Ms. Laukkanen claimed that her pregnancy was the ground for the dismissal which was against Section 8 of the Finnish Equality Act (609/1986, as amended) (the "Equality Act") on the basis of discrimination in work life.  In addition, Ms. Laukkanen claimed that the dismissal was against Section 3 of the Old Finnish Employment Contracts Act (320/1970, as amended) (the "Old Employment Contracts Act"), which states that employment cannot be revoked on inappropriate grounds. The District Court ruled against Ms. Laaukkanen but the Court of Appeals reversed.  It held that the dismissal of Marja-Liisa Laukkanen was against both the Old Employment Contracts Act and the Equality Act and ordered the company to pay damages. The grounds for the Court of Appeals' decision were that, when the employer and Ms. Laukkanen had negotiated on the employment, the employer had had significant interest on the fact if Laukkanen was planning to get pregnant. Further, the company had not been able to prove that Ms. Laukkanen had started neglecting her work duties as soon as she had found out about her pregnancy. The Supreme Court agreed with the opinion of the Court of Appeals and held that the dismissal violated Section 3 of the Old Employment Contracts Act. However, it did not consider the dismissal to be against the Equality Act because, according to the government proposal (57/1985) for the Equality Act, discrimination in working life only means discrimination based on the gender and, therefore, gender has to be the immediate reason behind the dismissal.



KKO 1991:14 Supreme Court of Finland (1991)

Gender discrimination

The issue here was whether the Finnish State was guilty of 4 in selecting an applicant for a job. Ms. Risse Serén claimed that she was more qualified for the position of the head of the office at the Ministry of Agriculture and Forestry than Mr. Paavo Mäkinen, who had been selected for the position. She claimed that she had been discriminated during the application process because of her gender. According to Section 8 of the Finnish Equality Act (609/1986, as amended) (the "Equality Act"), an action of an employer is deemed to constitute discrimination if, inter alia, the employer selects a less qualified person of the opposite sex for the position unless there is a justifiable reason for such selection other than the applicant's gender or the selection was based on weighty and acceptable ground related to the job or the task. The District Court evaluated the assessment of education, work experience, and other qualifications of the both applicants prepared by the Ombudsman for Equality and concluded that Ms. Serén was more qualified for the position. Since the state of Finland did not show that there were any acceptable reasons described in the Equality Act, the District Court ordered the state pay damages to Ms. Serén for the discrimination. The Court of Appeals and the Supreme Court upheld the decision of the District Court.



S.A. v. I.G.R Bucharest Court of Appeal (2010)

Gender discrimination

Ms. S.A. was dismissed by I.G.R. based on the fact that she was reaching the standard age for retiring although she chose to continue working. The court of first impression held that the decision of the employer was illegal due to 4 given that it has decided to terminate the employment contract of the claimant solely due to the fact that she had exceeded the standard age for retiring in case of women (58 years) while a man born on the same year could work until the age of 64. The first court held that the national law may establish different ages for state pensions for women and for men, as a social protection measure, but women only have the right and not the obligation to retire at the respective age. Romanian Law No. 202/2002 regarding the equal treatment between women and men prohibits 4 by an employer. On appeal, the Appeal Court maintained the decision of the first court, considering that dismissal solely based on reaching the qualifying age for a state pension, for which the age is different under national legislation for men and for women, constitutes discrimination on grounds of sex. A general dismissal policy of an employer implying the dismissal of a woman having as sole reason the standard retiring age, which is different for women and men, is 4 prohibited by the national and European legislation. Given the priority of European legislation over the national legislation, the court cited in its reasoning the case, Marschall v. Southampton and South – West Hampshire Area Health Authority of the Court of Justice of the European Union dated 26 February 1986.



Kelley Co., Inc. v. Marquardt Wisconsin Supreme Court (1992)

Gender discrimination

Plaintiff Marquardt took eight weeks off for maternity leave and vacation.  During that time, her supervisor reorganized the division in which she worked and redefined her responsibilities.  He did not inform her of these changes.  Included in the reorganization was the elimination of plaintiff’s position as credit manager.  The position was divided into two positions, and Marquardt’s supervisory responsibilities decreased.  Her new position also involved 25% clerical work, whereas in her old position, she had no clerical work.  She received the same pay and benefits and had the same office as her prior position.  The Court found that the plaintiff in this case was not returned to her equivalent employment position after her return from maternity leave, which is required under the Family Medical Leave Act (FMLA).  It held that although an employer may reorganize a department while an employee is on leave, and give an employee new job duties, it must still give the employee equivalent job duties.  An equivalent employment position “means a position with equivalent compensation, benefits, working shift, hours of employment, job status, responsibility and authority.”  It also held that the plaintiff was properly awarded back pay and that plaintiff’s “interim earnings and amounts earnable with reasonable diligence should be considered when back pay is awarded under the FMLA.”



AD 2011 nr 2 Supreme Court of Sweden (2011)

Gender discrimination

"An employer may not discriminate against a person who, with respect to the employer, 1. is an employee, 2. is enquiring about or applying for work, 3. is applying for or carrying out a traineeship, or 4. is available to perform work or is performing work as temporary or borrowed labour. (…)" Chapter 2 Section 1 of the Swedish Discrimination Act.]  A woman had applied for employment at the farm where she was doing an internship. During the internship the woman had had a miscarriage, which she told the farmer about. She was later denied employment. The farmer claimed that he denied her employment due to her insufficient capacity for work. However, the Swedish Labour Court (Sw: Arbetsdomstolen) found that the decision to deny the woman employment did not completely lack connection with a possible future pregnancy. Hence, Swedish Labour Court ruled that the denied employment constituted a violation of the Discrimination Act and granted the woman compensation for the damage suffered from the discrimination.



Menefee v. McCaw Court of Appeals of Texas – Dallas Division (2003)

Gender discrimination

Sherri Menefee filed an employment sex discrimination and retaliation case against her employer, McCaw Cellular.  Sherri was hired as the manager of the IT department for the company’s southwestern region.  She alleged that her boss discriminated against her and that she was subjected to a less favorable environment based on her sex and was terminated shortly after complaining about the discrimination.  Under the Texas Commission on Human Rights Act (Texas Labor Code § 21.051(1)), an employer commits an unlawful employment practice if, because of sex, the employer discriminates in any manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.  The Act is modeled after the federal Title VII and therefore Texas courts may look not only to cases involving the state statute but also to cases interpreting the analogous federal provisions.  In discrimination cases based upon circumstantial evidence, the plaintiff must first establish a prima facie case by showing: (1) she was a member of the protected class, (2) she was qualified for the position she held, (3) she was discharged or suffered an adverse employment action, and (4) she was replaced with a person who is not a member of the protected class or she was otherwise treated differently from persons outside the protected class.  Once the plaintiff makes this “minimal” showing, the burden of production shifts to the employer to produce evidence that the plaintiff was terminated for a legitimate, nondiscriminatory reason.  Then the plaintiff must establish that the legitimate reason was a “pretext” by showing that a discriminatory motive move likely motivated the employer’s decision, such as through evidence of disparate treatment or that the employer’s explanation is unworthy of credence.  In this case, Sherri established a prima facie case, and McCaw met its burden by producing evidence that Sherri was fired because she was not a “good fit” for her team.  Sherri sufficiently evidenced that this reason for her termination was a pretext because the reason she could not create a cohesive team was due to the discriminatory conduct and disruptive behavior of her boss and the failure of her supervisors to take action when she complained; moreover, she presented evidence that she had been told she was doing a good job.  Thus, Sherri sufficiently raised a factual issue to survive summary judgment.



Madam F v SA Schenk Labour Court of Appeal Brussels (2009)

Gender discrimination

A female employee was dismissed with severance pay due to a period of incapacity resulting from two consecutive miscarriages.  In the circumstances of the case, it was not possible to apply article 40 (protection against dismissal for pregnant women) of the Labour Law of 16 March 1971, because the employer was not informed of the pregnancy. However, because the dismissal followed right after the second miscarriage, the female employee was discriminated against based on her sex.  This was not refuted by the employer. Given the timing of the events and the timing of the termination of the employment relationship, the dismissal violated the law of 7 May 1991 on equal treatment for men and women with regard to working conditions, access to employment, and promotion, access to independent professions and supplementary social security schemes. This law does not provide for a fixed amount of damages. The moral damages were estimated at EUR 5,000.



ARY v International Association of the European Labor Institute Labor Court of Appeal (2004)

Gender discrimination

A female employee claimed that she was discriminated against with regard to her salary at the time of her recruitment and subsequently as she became more senior in the company.  She argued that she was granted a lower salary at the beginning of her employment than male employees with equal qualifications and that she was not later granted a higher salary in the same way as male employees who received such higher salary only based on their seniority.The Court of first instance rejected the claims of the female employee. On appeal however, the Court applied the case “Danfoss” (Court of Justice, 109/88 of 17.10.1989) to the case at hand.  Regarding her salary at the time of the beginning of the employment, it ruled that there was no discrimination. However, in terms of the subsequent increase of the salary, the Court held that there was indeed discrimination.



KKO 2010:1 Supreme Court of Finland (2010)

Gender discrimination, Sexual harassment, Sexual violence and rape

The issue here was whether A, the CEO of a company for which the victims worked, was guilty of sexual abuse, of a work safety offense, and of employment discrimination. A had performed sexual acts on his subordinates while they were resting in the break room. These acts included touching intimate parts such as breasts and bottom. The District Court and the Court of Appeal held A guilty of these charges, and A appealed to the Supreme Court.  The Supreme Court considered whether the public prosecutor had a cause of action given that the injured party had not reported the offense within the statute of limitations period.  According to Chapter 20 Section 11 of the Finnish Criminal Code (39/1889, as amended) (the "Criminal Code"), the public prosecutor may not bring charges for the offenses referred to in Sections 3 or 4 or Section 5(1)(2) or 5(1)(4), unless the injured party reports the offense for the bringing of charges or unless a very important public interest requires that charges be brought.The Court held that since A was the victim's supervisor, important public interest required the case to be brought to court by the prosecutor. Turning to the merits of the case, the Court found that A had abused his position in violation of Chapter 20 Section 5(1) of the Criminal Code.  It therefore held A guilty of sexual abuse towards B, C, D and E.  In addition, the Court upheld A's convictions for a work safety offense under Chapter 47 Section 1(1) of the Criminal Code and Section 27 of the Finnish Occupational Safety and Health Act (738/2002, as amended).  Finally, the Court upheld A's conviction for employment discrimination in violation of Section 8(2)(4) of the  Finnish Equality Act (609/1986, as amended), in accordance with Chapter 47 Section 3(1) of the Criminal Code.



O’Loughlin v Pinchback Florida 1st District Court of Appeal (1991)

Gender discrimination

After disclosing her pregnancy to her employers, Pinchback, a correctional officer at a county jail, was terminated. As a reason for the termination, Sheriff O’Loughlin explained that while pregnant, Pinchback could not perform the duties of a correctional officer and was placing her baby’s health in danger. Pinchback petitioned Florida’s Human Rights Commission for relief, resulting in a finding that O’Loughlin had wrongfully terminated Pinchback in violation of Florida’s Human Rights Act. The Court upheld the determination, explaining that O’Loughlin’s actions were indefensible as there was no evidence that Pinchback (or any pregnant employee) could not perform her work as before. As a result, the Court found Pinchback entitled to back pay.



Sangamon County Sheriff’s Department v. Illinois Human Rights Commission Iliinois Supreme Court (2009)

Gender discrimination, Sexual harassment

Donna Feleccia was a records clerk with the county sheriff’s department. A coworker sent her a letter that appeared to be from the Illinois Department of Public Health informing her that she may have been exposed to a sexually transmitted disease. When Feliccia read the letter, she became very upset and started shaking. The letter was sent by Yanor, a coworker of Feliccia’s, as a practical joke. Feliccia’s coworkers heard about the letter and/or that Feliccia had a sexually transmitted disease and Feliccia missed work and sleep over the incident. Yanor was only lightly disciplined and advised not to have any contact with Feliccia. Prior to the letter, Feliccia had endured several incidents of sexual harassment by Yanor, including once incident when he grabbed her and asked for a kiss and another when he asked her to go to a motel with him. Feliccia filed a charge of sexual harassment and retaliation against the sheriff’s department and Yanor. The court held that, under section 2-102(D) of the Illinois Human Rights Act, the sheriff’s department (i.e. the employer) was strictly liable for Yanor’s (i.e. a supervisory employee) “hostile environment” sexual harassment regardless of whether it was aware of the harassment or took measures to correct the harassment. It was irrelevant that Yanor did not have direct supervisory authority over Feliccia’s working conditions; in other words, an employer’s liability is not limited based on the harasser’s relationship to the victim. In addition, the court held that a sexual harassment claim is timely as long as it is filed within 180 days of any act that is part of the hostile work environment and that a factfinder may consider all of the conduct that makes up the hostile environment claim. Feliccia’s sexual harassment claim was meritorious because Yanor’s forged letter and other harassing conduct caused Feliccia to miss work and sleep.



Donajkowski v. Alpena Power Co. Supreme Court of Michigan (1999)

Gender discrimination

The Supreme Court held that under the Michigan Contribution statute, M.C.L. § 600.2925a, an employer sued for sex discrimination due to the terms of a collective bargaining agreement can seek contribution from the union that is party to the agreement.  Female employees brought a 4 claim against employer, Alpena Power Company, based on the collective bargaining agreement which created a new job classification for two female employees.  Previously, the two females had the same classification as their male counterparts.  Under this new classification, their pay was frozen.   Defendant filed a third party complaint seeking contribution from the union because defendant negotiated the agreement with the union.   The appellate court upheld the decision of the trial court allowing the third party complaint against the union, and the company and union appealed.  The Court found that defendant could seek contribution from the union; nothing in the language of the Michigan Civil Rights Act prohibited this.  Although generally, the statute was analogous to Title VII of federal law, the court noted that the state statute provided for a right to contribution, whereas federal law did not.  It also found that allowing for contribution did not oppose the legislative policy behind the statute, which among others, is that “discrimination in employment on the basis of sex is forbidden.”



Aleem v. Aleem Maryland Supreme Court (2008)

Divorce and dissolution of marriage, Gender discrimination

Court held that divorce obtained by husband under Islamic religious and secular Pakistani law would not be recognized and afforded comity in Maryland.  Petitioner argued that because he performed “talaq,” (which under Islamic law, allows a husband to divorce his wife by stating “I divorce thee” three times) the Circuit Court for Montgomery County lacked jurisdiction “to litigate the division of the parties’ marital property.”  “The trial court found that the marriage contract entered into on the day of the parties’ marriage in Pakistan specifically did not provide for the division of marital property and thus, for that reason alone, the agreement did not prohibit the Circuit Court for Montgomery County from dividing the parties’ marital property under Maryland law.”  The Court of Special Appeals agreed and stated, “[t]hus, the Pakistani marriage contract in the instant matter is not to be equated with a premarital or post-marital agreement that validly relinquished, under Maryland law, rights in marital property.”  It explained that the default under Pakistan law is that the wife does not have rights to marital property, while under Maryland law she does.  Applying Pakistani law, according to the court, would violate Maryland public policy.  The court also noted that a “procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife . . . summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife.  Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.”



Kroh v. Continental General Tire, Inc. Supreme Court of Ohio (2001)

Gender discrimination

Plaintiff Kroh filed a suit against Continental General Tire, Inc., claiming that it discriminated against her based on her gender, in violation of R.C. 4112.02 and 4112.99.  After trial, the jury found for Kroh, awarding her $ 708,000 in damages.  The appellate court reversed, finding that Kroh did not demonstrate that she was treated differently from similarly situated male employees.   Kroh was promoted to cash manager after working for approximately twenty years for General Tire.  Kroh was the only cash manager so she couldn’t compare herself to anyone with exactly the same duties.  However, Ohio Supreme Court found that the male managers to whom she compared herself reported to the same boss, had similar titles, were at a similar level on the company’s organizational chart and had the same salary classification.”  The court concluded that Kroh was similarly situated to non-protected employees in all relevant respects and concluded that therefore, there was credible evidence based on which reasonable minds could reach different conclusions, and thus did not reverse a jury verdict.



Roberson v. University of Tennessee Tennessee Supreme Court (1992)

Gender discrimination

Employee filed suit against her employer, the University of Tennessee, alleging sex discrimination under the Equal Pay Act and the Tennessee Human Rights Act (“THRA”).  She also alleged that her employer retaliated against her for filing an EEOC charge.  The Court of Appeals held that there was sufficient evidence to support the verdict that she had suffered discrimination and that her employer retaliated against her.  Plaintiff was an employee of the University’s Agricultural Extension Service since 1980.  She was eligible for a promotion in 1986, but was not promoted.  Her co-worker, however, who started in 1979, was promoted.  Plaintiff filed an EEOC charge.  She then brought an action for sex discrimination under the Equal Pay Act and THRA and alleged that defendant retaliated against her for filing the EEOC charge.  The Court found sufficient evidence to uphold the jury verdict granting plaintiff $13,600 on her discrimination claim, $50,000 on her retaliation claim, and $26,000 in attorney’s fees.  The Court noted evidence that plaintiff’s evaluation scores were adjusted downward after she signed off on them and before they were given to the Dean who made decisions regarding pay and promotion.  There was also evidence that complaints against her were taken more seriously than complaints against her peers.  One of her supervisors admitted that he stopped recommending her for promotions after she filed the EEOC charge, and that management took much more time and effort over small matters that related to the plaintiff.



Burton v. State Florida 1st District Court of Appeal (2010)

Custodial violence, Gender discrimination

Dubreuil proceedings (state legal proceedings used to compel a pregnant woman to undergo medical confinement, treatment, and procedures against her wishes for the benefit of the unborn fetus) were initiated against Burton on a finding that she had ignored her physician’s recommendations, creating a high-risk pregnancy that may result in the death of her baby. A Florida circuit court ordered Burton to forced medial treatment and confinement in a hospital until delivery. Holding that such a determination was inappropriate, the Court reasoned that all individuals have a fundamental right to privacy. The Court explained that Dubreuil proceedings were insufficient to compel a pregnant woman to forcibly undergo medical detention and treatment for the benefit of her unborn child. To overcome Burton’s right to refuse medical intervention in her pregnancy, the State must show a compelling interest and a method for pursuing that interest that is narrowly tailored. The State had failed to do so.



Ollier v. Sweetwater Union High School District United States District Court for the Southern District of California (2009)

Gender discrimination

Plaintiffs brought a class action lawsuit against Sweetwater Union School District (the “District”) and several individuals, alleging unequal participation opportunities for females at Castle Park High School (“CPHS”).  Plaintiffs argued that Defendants violated Title IX’s provision that prohibits excluding or discriminating against anyone on the basis of sex in educational programs or activities that receive federal financial assistance.  The court applied a three-part test to determine whether the District complied with Title IX which included: (1) substantially proportionate athletic opportunities for females; (2) continuing practice of program expansion for females; and (3) the accommodation of females’ interest and abilities.  First, the court held that Defendants failed to provide females with substantially proportionate opportunities to participate in athletics, as the number of female students denied the opportunity to participate could have sustained several viable competitive teams.  Second, the court held that there was no steady increase in female athletic participation.  Even though, as Defendants argued, athletic programs for girls had expanded over the past decade and CPHS had two more teams for girls than for boys, the number of female participants, not the number of teams, determined whether programs had expanded.  Third, the court held that Plaintiffs demonstrated evidence of unmet interest and of the ability of CPHS females to participate in field hockey, tennis, and water polo.  Defendants’ argument that they could not obtain coaches for the teams was not a valid excuse.  The court held that Defendants allowed significant gender-based disparity in violation of Title IX and found for Plaintiffs on their claim of unequal participation opportunities for females.



Melani v. Bd. of Higher Educ., United States United States District Court for the Southern District of New York (1983)

Gender discrimination

Plaintiffs sued the board of trustees of the City University of New York (“CUNY”), alleging that CUNY discriminated against its female professors because it paid them less than its male professors, pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. section 2000e (“Title VII”). As evidence, Plaintiffs provided statistics about the faculty’s pay that demonstrated that the female professors were paid less. Defendant argued in response that the female staff were paid less based on merit, specifically because women devoted more time to child-rearing, had fewer publications, and worked in academic fields for which the market demand was less. The court found that Defendant failed to successfully counter Plaintiffs’ claim because its testimony was little more than generalizations: its evidence did not relate to the CUNY female faculty and did not explain the salary disparity between the male and female faculty. Thus, the court found that Defendant violated Title VII by paying Plaintiffs a lower salary because of their sex.



Badih v. Myers California Court of Appeal (1995)

Gender discrimination

In 1987, Fatmeh Badih (“Badih”), a recent immigrant from Sierra Leone, was hired by the medical offices of Dr. Leonard Myers (“Myers”) as a medical assistant. Almost three years later, Badih told Myers she was pregnant. He immediately fired her. According to Badih, when she told Myers the news he replied, “If you told me you were going to get married and have babies, I wouldn’t have hired you in the first place. I need an office girl when I need her, not a person that has responsibilities the way you do now. . . . You’re going to have to go.” Badih filed a compliant against Myers and alleged pregnancy discrimination, among other claims. Myers denied that he fired Badih because she was pregnant. The jury found that Myers had terminated Badih because of her pregnancy, awarded her $20,226 in damages, and granted Badih’s motion for attorney fees. Myers appealed the judgment and attorney fees order. He argued that because he employed less than five people he was not subject to the pregnancy discrimination provisions of California’s Fair Employment and Housing Act (“FEHA”). He also argued that no other constitutional or statutory provisions prohibited pregnancy discrimination. The Court of Appeal affirmed the trial court’s judgment and attorney fees order. It held that pregnancy discrimination in employment was a form of sex discrimination. Because article I, section 8 of the California Constitution prohibits sex discrimination in employment regardless of the employer’s size, those who work for employers not covered by FEHA can maintain pregnancy discrimination claims under the California Constitution.



U.S. v. Virginia Supreme Court [United States] (1996)

Gender discrimination

The Court was asked to determine the constitutionality of Virginia's decision to only admit men to the Virginia Military Institute (VMI), asking women to instead enroll at the all-women Virginia Women's Institute for Leadership (VWIL). In a 7-1 decision, the Court held that banning women from VMI was in violation of the 14th amendment. The Court held that Virginia had failed to give adequate reasoning for its decision to not admit women, and that women would not receive the same level of instruction at VWIL that they would receive at VMI.



McCormick v. School District of Mamaroneck United States Court of Appeals for the Second Circuit (2004)

Gender discrimination

Two school districts scheduled their girls’ high school soccer season in the spring and the boys’ high school soccer in the fall. The effect of that schedule was that boys but not girls were able to compete in the regional and state championship games. Parents of the female students sued the school districts pursuant to Title IX of the Education Amendment of 1972 and 20 U.S.C. section 1681 (“Title IX”), which requires schools, among others, to provide equal athletic opportunities to its male and female students. The appellate court held that the schools violated Title IX when they scheduled girls’ soccer in the spring because it denied female students an equal athletic opportunity. The court noted that because the females could not compete in championship games, it implied that the schools did not value their athletic abilities as much as it valued the boys’ athletic abilities, which is illegal.



Gregory v. Daly United States Court of Appeals for the Second Circuit (2001)

Gender discrimination

Plaintiff alleged that she was subjected to a hostile work environment and that when she complained, her employer fired her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff argued that her executive director subjected her to sexual ridicule, advances, and intimidation. He also intensified his harassment in response to her complaints, deprived her of work responsibilities, undermined her ability to do her job, and ultimately fired her. The lower court dismissed her case. On appeal, however, the Second Circuit Court of Appeal reversed that decision. It found that Plaintiff could reasonably have found her workplace to be both physically and sexually threatening, based on her allegations about the executive director. It reasoned that the alleged environment could have hurt Plaintiff’s job performance, discouraged her from remaining on the job, or kept her from advancing in her career. Thus, the court concluded, the conduct alleged was contrary to Title VII’s objective of promoting workplace equality. The appeals court also found that Plaintiff could proceed with her case against her employer for retaliation because he fired her after she complained about his behavior.



State v. Human Rights Commission Court of Appeals Fourth District (1989)

Gender discrimination, Sexual harassment

Lynda Savage filed a complaint against the Illinois Department of Corrections alleging that she had been sexually harassed by her immediate supervisor, Nicholas Howell, and discharged in retaliation. Howell would describe women by their physical attribut


Northtown Ford v. Illinois Human Rights Commission Court of Appeals Fourth District (1988)

Employment discrimination, Gender discrimination

The Illinois Human Rights Commission (HRC) filed a suit against Northtown Ford alleging discrimination against an employee who had been terminated with regard to sick leave benefits and salary, sex discrimination for reduction in salary, and retaliation. The administrative law judge entered a judgment in favor of the employee for salary claims and sick leave benefits, and the HRC affirmed. The Court of Appeals decided that the employee was allowed to amend the complaint because the amended claim was reasonably related to the original claim.



J.Y. Interpretation No.365 (1994)

Gender discrimination

Article 1089 of the Civil Code, which stipulates that in situations of parental disagreement in exercising parental rights over a minor, the father has the right of final decision, is in violation of both Article 7 of the Constitution (stating that both sexes are equal under the law) and Article 9 of the Amendment (eliminating sexual discrimination).  Therefore, Article 1089 should be examined and amended.  The current Article is void within two years of this interpretation.



J.Y. Interpretation No.410 Supreme Court of Taiwan (1996)

Gender discrimination, Property and inheritance rights

A Supreme Court precedent from 1966 held that property obtained by a wife during the continuance of a marriage, but which cannot be proved separate property or contributed property, belongs to the husband.  The amendment of the Civil Code in 1985 under the authority of Article 7 of the Constitution emphasizes gender equity and invalidates this Supreme Court precedent.



Ephrahim v. Pastory and Kaizingele High Court of Tanzania (1990)

Gender discrimination, Property and inheritance rights

The respondent, Ms. Pastory, inherited clan land from her father by a valid will and sold the land to a man who was not a member of her clan.  The next day, the appellant, Mr. Ephrahim, filed suit seeking a declaration that the sale of land by Ms. Pastory was void under the customary law that a woman has no power to sell clan land. The Court held that the customary law regarding women's property rights discriminated on the ground of sex in violation of CEDAW, the African Charter on Human and Peoples' Rights and the ICCPR as well as the Tanzania Constitution.



Uganda Association of Women Lawyers and 5 Others v. The Attorney General Constitutional Court of Uganda (2004)

Divorce and dissolution of marriage, Gender discrimination

The petitioners sued to have several provisions of the Divorce Act declared void on the grounds that they discriminated on the basis of sex.  The Court held that sections 4, 5, 21, 22, 23, 24 and 26 of the Divorce Act are void in so far as they discriminate on the basis of gender, so the grounds for divorce as listed are available to both sexes and the compensation for adultery, costs against a co-respondent, alimony, and settlement are applicable to both sexes.  



Exp. No. 018-96-I/TC Constitutional Tribunal (2007)

Gender discrimination

A public defender challenged the constitutionality of Article 337 of the Civil Code, which stated that in domestic disputes, a judge could take into consideration the education, custom and conduct of both spouses when dealing with cases of cruelty, dishonest behavior or grave injury. He argued that such a law violated the constitutional right of equality before the law. The Constitutional Tribunal agreed in part and disagreed in part, holding that such considerations could only be examined when dealing with cases of grave injury.



Media 24 Ltd. & Another v. Grobler (2005)

Gender discrimination, Sexual harassment

The respondent won a judgment against the appellant for 13 by a manager trainee employed  by the appellant.  On appeal the appellant claimed (1) it could not be held liable for its employee's actions that occurred off work premises, (2) it had no knowledge of the harassment incidences, and (3) the employee was not acting within the scope of employment.   The court held that employers have a legal duty to protect their employees from physical and psychological harm caused by co-employees.



SONKE Gender Justice Network v. Malema Equality Court for the District of Johannesburg (2009)

Gender discrimination, Sexual harassment, Sexual violence and rape

The respondent made comments at a political rally regarding the consent of the complainant in Jacob Zuma's rape trial. Specifically, he opined that a rape victim would leave early in the morning, but the complainant in this case had stayed for breakfast and requested money for a taxi. The plaintiff, a gender justice organization, sued him for hate speech, unfair discrimination, and harassment of women. The court found that the respondent's comments were based on prohibited grounds as outlined in South Africa's Equality Act, specifically sex and gender. The court also found the comments expressed by the respondent constituted "generalizations about women, rape, and consent which reinforce[d] rape myths." Moreover, the respondent's words suggested "that men need not obtain explicit [sexual] consent from women." The court found the respondent liable for hate speech and harassment.  For these reasons, the court concluded the respondent infringed the rights of women and ordered him to pay a fine and make a public apology.



Case on the House Head System Constitutional Court of South Korea (2005)

Gender discrimination, Harmful traditional practices

The petitioners requested the constitutional review of Civil Code provisions which establish the traditional "house head system" (Ho-jue jae-do) which holds that a household is formed around the male, and passes down only through direct male descendants serving as successive house heads.  Under this system, male members are always recorded as the head of family in the Family Registry, and hold superior inheritance rights over female members. The Court held that the provisions which establish the "house head system" are unconstitutional.  The Court held that this system is a "statutory device to form a family with  male lineage at the center and perpetuate it to successive generations."  Furthermore, the system discriminates both men and women because it determines the order of succession, and effects marital relations and parent-children relationships.  The Court held that family relationships are changing, from authoritarian to democratic relationships, where "all family members are equally respected as individuals with dignity regardless of sex."



Use of Paternal Family Name Case Constitutional Court of South Korea (2005)

Gender discrimination

Petitioners applied for constitutional review of Article 781(1) of the Civil Code which stated that "a child shall follow the family name of the father."  The Constitutional Court held that the civil code provision requiring a child to follow the father's family name is unconstitutional.  The court held that "such unilateral requirement to follow the father's family name and disallow use of the mother's name violates individual dignity and sexual equality."  In addition, the court held that "forcing one to use only his original father's family name and not allowing a name change infringes on the individual's right to personality." The concurring opinion stated that the civil code provision also results in discrimination against women, and found no legislative purpose for such discrimination.  (Article 36(1) of the South Korean Constitution guarantees individual dignity in marriage and family.)



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.



Andrew Manunzyu Musyoka (Deceased) High Court of Kenya at Machakos (2005)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The applicants are the sons and wife of the deceased and are seeking to apply the Kamba customary law that would not permit a daughter to inherit her father's estate if she is married.  The Court held that the Kamba customary law is discriminatory insofar as it seeks to prevent a married daughter from inheriting her father's estate under the Succession Act.  It specifically noted that although the Kenyan constitution specifically provides for customary law to take precedence over the Constitution in matters dealing with property inheritance after death and other personal issues, Kenya is also obligated to end discriminatory practices under CEDAW and the UDHR. 



Nkabane v. Nkabane High Court of Lesotho (1987)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, Gender-based violence in general, Property and inheritance rights

The plaintiff wife sought a decree of divorce on the grounds of the defendant's desertion on the grounds that the defendant abused her and drove her out of the matrimonial home to live with another woman.   The Court found that the defendant was previously married through Lesotho customary law to the other woman at the time of the marriage to the plaintiff; thus, the defendant's marriage to the plaintiff was null and void. However, the Court declared that the relationship was a "putative marriage" for the purposes of dividing the plaintiff and defendant's joint property.



Vaux v. Vaux High Court of Malawi (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.  



Uke v. Iro Court of Appeal of Nigeria (2002)

Gender discrimination

The Court of Appeal held that the Nnewi Customary Law that precluded a woman from giving evidence in land matters was unconstitutional because it discriminated against women.



Affaire Zabsonre Asseta C/ Direction Regionale de la Santé de Tenkodogo Court of Appeal of Burkina Faso at Ouagadougou (2001)

Employment discrimination, Gender discrimination, Sexual harassment

Mrs. Z.A. contended that she had been unfairly dismissed for having refused sexual advances by the personnel manager.  The Court found that Mrs. Z.A. did not have the obligation to prove that she had been the subject of sexual harassment.  Her employer had the burden of proof to show that she had been dismissed fairly.  The Court found that Mrs. Z.A. had been dismissed because she did not submit to her personnel manager's sexual advances, and therefore awarded her punitive damages in addition to six months pay.



Mandal v. Deen Dayal Harinagar Hospital Supreme Court of India (2010)

Gender discrimination

A public interest litigation was initiated to urge the Indian government to address the issue of high levels of maternal mortality in the country. The Court ordered the government to correct discriminatory actions in programs intended to reduce maternal mortality, to report on what corrective steps will be taken to monitor and improve current programs, and to create additional programs if necessary.



Sentencia C-101/05 Constitutional Court of Colombia (2005)

Gender discrimination

Explaining that the right to marry or remarry is a fundamental right, the Court held that wills and testaments that required a woman to remain single or widowed were unconstitutional. 



Sentencia C-507/04 Constitutional Court of Colombia (2004)

Forced and early marriage, Gender discrimination

The Court was asked to examine the constitutionality of Article 34 of the Colombian Civil Code, which established the minimum age of marriage for women as 12, while the minimum age for men as 14. The Court struck the wording from the Civil Code that differentiated in age based on gender, and set the minimum age of marriage at 14.



Sentencia C-534/05 Constitutional Court of Colombia (2005)

Gender discrimination

The Court held that 4, while prima facie unconstitutional, is acceptable if done with the constitutional purpose of furthering the rights of women, considered a constitutionally-protected class, and not with the purpose of maintaining traditional societal roles. The Court held that "the special protection of women allows for discriminatory treatment with constitutional ends." The Court also affirmed that minors are a protected class, protected both by the Colombian Constitution but also by the international treaties to which Colombia is a signatory.



Sentencia C-667/06 Constitutional Court of Colombia (2006)

Gender discrimination

The Court held that existing legal provisions and international treaties that provide women with special rights and considerations were not in violation of the Colombian Constitution's equal rights provision. The Court reasoned that such provisions were not aimed at withholding rights from men, but instead were aimed at correcting any shortcomings in the rights owed to women. 



Sentencia T-058/08 Constitutional Court of Colombia (2008)

Gender discrimination

Reversing an appellate court ruling and affirming a trial court ruling, the Court reaffirmed the rights to employment of pregnant and nursing women.  



Sentencia T-549/08 Constitutional Court of Colombia (2008)

Gender discrimination

Reversing a lower court's finding, the Court ordered defendant to reinstate plaintiff in her prior place of employment after it found that defendant had improperly fired plaintiff due to her pregnancy, thereby violating her rights as a pregnant woman. 



Sentencia T-877/07 Constitutional Court of Colombia (2007)

Gender discrimination

The Court affirmed that an employer is not only constitutionally-required to provide adequate maternal leave for pregnant workers, but also bound by regional and international treaties to which Colombia is a signatory, such as the Additional Protocol to the American Convention on Human Rights  ("Protocol of San Salvador").



Sentencia 10341, Expediente: 04-006937-0007-CO Sala Constitucional de la Corte Suprema de Justicia (2004)

Gender discrimination

Plaintiff claimed that she was dismissed from her employment as a psychologist because she was pregnant, thereby violating her constitutional rights. The Court disagreed, finding that her position was of a temporary nature, her employer replaced her with a more qualified psychologist, and that plaintiff's dismissal was not based on her pregnancy.

La demandante discutió que fue despedida de su empleo de psicóloga porque estaba embarazada, lo cual es una violación de sus derechos constitucionales. La Corte no estuvo de acuerdo, al descubrir que su posición era de carácter temporal, su empleador la reemplazó con un psicólogo más calificado, y el despido de la demandante no se basó en su embarazo.



Sentencia 14572, Expediente: 05-002606-0007-CO Sala Constitucional de la Corte Suprema de Justicia (2005)

Gender discrimination

Plaintiff, a pregnant school teacher, asked the Court to order the General Director of Personnel of the Department of Public Schools to rehire her after her employment was not renewed when she became pregnant. Plaintiff had been employed in that position for six years. Plaintiff argued that failing to rehire her violated her right to employment stability and motherhood. The Court ordered the defendant to rehire the plaintiff and to provide her with paid maternity leave. 

La demandante es una maestra de escuela embarazada que solicitó a la corte que le ordene a la Directora General de Personal del Departamento de Escuelas Públicas que la vuelva a contratar, pues a la expiracion del contrato, este no fue renovado cuando quedó embarazada. La demandante había estado empleada en ese puesto durante seis años. Ella demandante argumentó que no revar su contrato violó su derecho a la estabilidad laboral y la maternidad. El tribunal ordenó a la Directora que volviera a contratar a la demandante y ademas le proporcionara una licencia de maternidad pagada.



Affaire B.S. C/ Comission de P Court of Appeal of Burkina Faso at Ouagadougou (2003)

Employment discrimination, Gender discrimination

The Court found that the employer had acted inconsistently in offering Mrs. B.S. one-month extensions on her fixed term contract and then ending her contract at a time when she would otherwise have begun maternity leave on the grounds that there were no more project-related funds to cover her employment.  This inconsistent behavior supported the finding that Mrs. B.S. had been unfairly dismissed because of pregnancy.  Under Article 33 of the Labor Code, the Court awarded damages to Mrs. B.S. for unfair dismissal.  Furthermore, the Court faulted the employer for having violated Article 84 of the Labor Code which states that pregnant employees must enjoy maternity benefits under the Caisse Nationale de Sécurité Sociale, including 14 weeks of paid leave, and awarded Mrs. B.S. the maternity benefits that she would have received had she not been unfairly dismissed.



Sentencia: 01383, Expediente: 06-011087-0007-CO Sala Constitucional de la Corte Suprema de Justicia (2007)

Gender discrimination

The Court ordered defendant, a hospital, to rehire a pregnant worker who was fired one week after informing the hospital of her pregnancy. The Court reasoned that the short period of time between plaintiff's announcement and her firing established a causal relationship between her pregnancy and her firing, thereby violating plaintiff's constitutional right to remain employed while pregnant. 

El tribunal ordenó a un hospital, el cual estaba bajo demanda, que volviera a contratar a una trabajadora embarazada que fue despedida una semana después de informarle al hospital sobre su embarazo. La Corte razonó que el corto período de tiempo entre el anuncio de la demandante y su despido estableció una relación causal suficiente para probar que el despido era consecuencia del embarazo, en violacion de su derecho constitucional a permanecer empleada durante el embarazo.



Sentence of the Constitutional Court 936-95 Constitutional Court [Guatemala] (1996)

Gender discrimination

Court held that a criminal law that punished female adultery more severely than male adultery was unconstitutional, in violation of the idea of equality among persons, as well as equality between married people.

El tribunal sostuvo que una ley penal la cual castigaba el adulterio femenino más severamente que el adulterio masculino era inconstitucional y violaba la idea de igualdad entre las personas, así como la igualdad entre las personas casadas.



Air India v. Nargesh Meerza Supreme Court of India (1981)

Abortion and reproductive health rights, Gender discrimination

Air India, a state-owned company, required female flight attendants to retire under three circumstances: (1) upon reaching 35 years of age, (2) upon getting married, or (3) upon first pregnancy. The Court struck the rules down, holding that these requirements constituted official arbitrariness and hostile discrimination.



Ashok Kumar v. Birakishore High Court of India (2004)

Gender discrimination, Harmful traditional practices

A father alleged that his son-in-law had kidnapped his daughter.  The daughter showed that she was of age and had married of her own free will.  The court held that a family can have no control over who an adult chooses to marry.



Cour d'appel, Bruxelles No. 96AR1629 Court of Appeals of Belgium (1998)

Gender discrimination

With regard to the marriage of persons of different nationality Belgian courts will ordinarily look to the national statutes governing each person to determine whether the conditions of marriage have been met.  Here, however, the Court refused to look to Algerian law to determine whether the conditions for marriage had been met when called upon to decide whether the marriage between an Algerian Muslim woman and an Italian non-Muslim man could be declared null.  The Brussels Court of Appeal stated that Algerian law, which includes the prohibition for a Muslim woman marrying a non-Muslim, must be rejected as being contrary to international public policy as it results in discrimination regarding the freedom of marriage based on gender and/or their religion.  The Court therefore refused to consider Algerian law with regard to the law applicable to both parties of the marriage.



Attorney General v. Unity Dow Court of Appeal of Botswana at Lobatse (1992)

Gender discrimination, International law

The respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. The respondent had one child with an American man prior to their marriage and two children after. Botswana's citizenship requirements allowed only children born outside of marriage to inherit their mother's citizenship, so the respondent's first child was a citizen of Botswana while the two born during her marriage were not. Though not the central issue of the case, the Court noted that an immediate effect of the law could be the expulsion of the husband and non-citizen children from Botswana. The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act discriminated on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it punishes a female citizen for marrying a non-citizen male. In addition, the Court considered similar cases in different countries in reaching its opinion.  (High Court decision available at: https://www.law.cornell.edu/sites/www.law.cornell.edu/files/women-and-ju...)



Masusu v. Masusu High Court of Botswana at Lobatse (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The appellant-wife sought and was granted a divorce from her husband on the grounds of domestic violence and that he did not financially support her or their two children. The wife appeals a decision by the Customary Court of Appeal granting the house to the respondent-husband on the grounds that under customary law, a wife who divorces her husband is at fault because a wife is supposed to remain in her marital home regardless of her husband's actions. The High Court found that the Customary Court's reasoning discriminated against women because it automatically faulted the wife for filing a divorce no matter what her husband did and ordered the marital home be sold and the profits given to the appellant-wife.   



Thomas v. Union of India (2010)

Gender discrimination

Ms. Saumya Ann and Mr. Thomas, who were Christians by faith, had applied for a decree of divorce by mutual consent under Section 10A of the Divorce Act. The lower court rejected the application because the Divorce Act requires that the filing couple shall have lived in separate residences for a minimum period of two years, but Ms. And Mr. Thomas had been living apart for only one year. On appeal, the couple argued that the law was a violation of their right to life and liberty guaranteed under Article 21 of the Indian Constitution. They also argued that such law was discriminatory and in violation of Article 14 of the Constitution because Hindus and Parsis were entitled to divorce by mutual consent after living apart for only a year. The Government argued that the law in question pertained to Christians and was their personal religious law, granting it complete insulation from any form of interference by courts. The Kerala High Court rejected the government’s contention. The Court held that the couple was entitled to seek a decree of divorce by mutual consent, that the requirement of two years violated the right to seek a divorce as guaranteed under Article 21 of the Indian Constitution, and that the constitutional right to equality includes the right to divorce as persons from other religions are. Instead of declaring the law unconstitutional, the Kerala High Court read down the two-year requirement to one year, like the laws applicable to Hindu and Parsi divorces. This case is significant because it demonstrates that customs and laws, even if religious in nature, can be invalidated if they violate the fundamentals rights guaranteed by the Indian Constitution.



Legislation

Constitution of Belarus (2004)

Employment discrimination, Gender discrimination

The Constitution provides for the general principles of equality and non-discrimination. Article 4 provides that democracy shall be exercised based on diversity of political institutions, ideologies and opinions. It also provides that the ideologies of different entities may not be made mandatory for citizens. Article 14 provides that the State shall regulate relations among social, ethnic and other communities on the basis of principles of equality before the law and respect of rights and interests. Article 16 states that religions and faiths shall have equality before the law. Article 22 provides that “all shall be equal before the law and have the right to equal protection of their rights and legitimate interest without any discrimination.” Further, Article 32 of the Constitution contains general protections with respect to marriage, family, motherhood, fatherhood and childhood. In particular, it provides that “on reaching the age of consent, a woman and a man shall have the right to enter into marriage on a voluntary basis and found a family. Spouses shall have equal rights in family relationships” and women shall be guaranteed equal rights as men in their opportunities to receive education and vocational training, promotion in labor, social and political, cultural and other spheres of activity as well as in creating conditions safeguarding their occupational health and safety. Finally, Article 42 provides a right to equal pay. Unofficial English translation available here.



Employment Ordinance (1968)

Employment discrimination, Gender discrimination

The Employment Ordinance regulates the general conditions of employment and related work matters. Part III of the Ordinance provides for maternity protection, including provisions for maternity leave.



Family Status Discrimination Ordinance (1997)

Gender discrimination

The Family Status Discrimination Ordinance (“FSDO”) prohibits direct and indirect discrimination based on family status. The principles used by courts applying the FSDO are very similar to those of the Sex Discrimination Ordinance.​



Sex Discrimination Ordinance (1996)

Gender discrimination

The Sex Discrimination Ordinance (“SDO”) prohibits discrimination on the grounds of sex, pregnancy, and marital status. Both direct and indirect discrimination are prohibited. Direct discrimination occurs where a party treats a person “less favorably” than another person in similar circumstances, except for the attribute of sex/pregnancy/marital status. Courts use a “but for test,” asking whether the complainant would not have received the less favorable treatment but for his/her sex/pregnancy/marital status. Indirect discrimination occurs where a seemingly uniform condition is applied, but the burden disproportionately falls on a group defined by sex/pregnancy/marital status.



Bill of Rights Ordinance (1991)

Gender discrimination, International law

The Bill of Rights Ordinance is the local legislation incorporating the International Covenant on Civil and Political Rights into Hong Kong law. The rights recognized under it are to be enjoyed “without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The ordinance also provides that “[m]en and women shall have an equal right to the enjoyment of all civil and political rights set forth in [the ordinance].”



Anti-Discrimination Act (1998)

Employment discrimination, Gender discrimination, LGBTIQ

The Anti-Discrimination Act 1998 makes it unlawful to directly or indirectly discriminate on the basis of certain grounds (“attributes”) in connection to public life; including employment, education and training, and provision of facilities, goods and services. The various unlawful grounds of discrimination include: sexual orientation, lawful sexual activity, gender, gender identity, intersex variations of sex characteristics, martial status, relationship status, pregnancy, breastfeeding, parental status, family responsibilities, irrelevant medical record, association with a person who has, or is believed to have, any of these attributes. Additionally, the Act prohibits inciting hatred towards a person on the grounds of their race, disability, religious beliefs, sexual orientation, or gender identity, as well as harassment, sexual harassment, and victimization towards a  person based on protected attributes or their intent to file a claim under this Act. It also prohibits a person from promoting discrimination through a sign, notice, or advertisement. The Act also establishes the Anti-Discrimination Commissioner to investigate and  resolve complaints. Complaints can be initiated by the person targeted by the discrimination, a trade union, or another representative for the targeted person. The Commission can also investigate any discrimination ex officio. If the Commissioner believes that the complaint cannot be resolved by conciliation or that the nature of the complaint is such that it should be referred to the Tribunal, the Commissioner can refer the complaint to the Anti-Discrimination Tribunal. If the Tribunal finds that a complaint is substantiated, it may, among other remedies, order the respondent to pay the complainant an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct.



Justice and Related Legislation (Marriage and Gender Amendments) Act (2019)

Gender discrimination, LGBTIQ

The Act was adopted to amend several major pieces of legislation in Tasmania, including the Adoption Act 1988, the Anti-Discrimination Act 1998, and the Births, Deaths and Marriages Registration Act 1999, with the purpose of improving and strengthening the rights of trans people. The new provisions make it possible to change legal gender through statutory declaration and remove the previous requirement of having completed gender reassignment surgery before amending a birth certificate. Additionally, gender is now allowed to be taken of birth certificates altogether. The Act entered into force on 5 September 2019.



Gender Equity Education Act (2018)

Gender discrimination, Sexual harassment, Sexual violence and rape

The Gender Equity Education Act (the “GEEA”) aims to encourage respect for gender diversity, eliminate gender discrimination and promote substantive gender equality through education. The GEEA charges the competent authorities (as well as schools) with establishing gender equity education committees whose tasks include drafting regulations and policies, coordinating resources, supervising gender equity-related activities and promoting research and development of curricula, teaching and assessments. Under the GEEA, schools must provide a safe, gender-fair learning environment by respecting, giving due consideration to, and not discriminating against prospective students, students, faculty, and staff of different genders. Schools shall strive towards this objective by taking steps such as integrating gender equity education into their curriculum, providing gender equity education when training new staff members, reporting known incidents of sexual assault, sexual harassment or sexual bullying within 24 hours and promptly handling and investigating such cases. Schools and any principal, faculty or staff member found to be in violation of the GEEA may be subject to a fine. Persons may also be dismissed or discharged from employment.



Nigeria Penal Code Act (1960)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Sexual violence and rape, Statutory rape or defilement

The Penal Code applies to the northern states of Nigeria. Section 55(1)(d), subject to customs that have been recognized as lawful, allows a husband to “correct[] his wife” as long as it does not amount to “grievous hurt.” Section 55(2) goes on to state that the correction must be reasonable in kind or degree with regards to the age, physical, and mental conditions of the person being corrected. Grievous hurt is defined in section 241 as “(a) emasculation; (b) permanent deprivation of the sight of an eye, of the hearing of an ear or the power of speech; (c) deprivation of any member or joint; (d) destruction or permanent impairing of the powers of any member or joint; (e) permanent disfiguration of the head or face; (f) fracture or dislocation of a bone or tooth; (g) any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.” The law concerning abortion is found in sections 232. Referenced in the law as the causing of a miscarriage, abortion is only legal to save the life of the mother. Any person, including the mother, can be guilty of the offense and will be punished with up to 14 years in prison, a fine, or both. Sections 233-235 discuss the causing of a miscarriage intentionally or unintentionally through acts against the mother. These offenses also carry a penalty of imprisonment, fines, or both. Section 282 discusses rape and specifies that sexual intercourse by a man with his wife is not rape if she has gone through puberty.



Labour Act (1990)

Employment discrimination, Gender discrimination

Under Section 55(1), women are prevented from working at night in any industrial or agricultural position. However, under 55(2) female nurses in either sector are allowed to work at night, as are women working in management positions not “ordinarily engaged in manual labour.”  Women who work at night because of unforeseeable and nonrecurring work interruptions or who work with materials that require night work because of rapid deterioration are provided with a possible defense to the law. Under Section 56, no woman may be employed in any work that requires time in any underground mine unless they hold positions of management and do not perform manual labor, are employed in health and welfare services, or are working as part of their courses of study. Under Section 57, the Minister, at any time, may prohibit or restrict women from employment in any particular industry or in any process or work carried out. Violations under any of sections 55-56 of the Act carry with them a fine, imprisonment for a term not to exceed one month, or both.



Same Sex Marriage (Prohibition) Act (2013)

Gender discrimination, LGBTIQ

The Same Sex Marriage (Prohibition) Act makes it illegal for  same-sex individuals to marry, enter into a civil union, or gain entitlement to any benefits of a valid marriage. Additionally, it prohibits the public display of same-sex relationships. Any marriage or union entered into legally outside Nigeria is considered void within the country and no related benefits are recognized.  The Act specially defines marriage as between a man and a woman and establishes criminal penalties against people who solemnize, witness, or aid various events supporting homosexuality. Sections 2-3; 5(3). The act also prohibits registering any same sex organizations and public displays of same sex romantic affection. Section 4. Punishments include imprisonment for 10-14 years depending on the offense. Section 5.



Matrimonial Causes Act (1990)

Divorce and dissolution of marriage, Gender discrimination, Property and inheritance rights

The Matrimonial Causes Act governs marriages, dissolution of marriage, and custody of children. According to Section 5(d) a marriage is voidable if at the time of marriage “the wife is pregnant by a person other than the husband.” However, by Section 35(c), only the husband can nullify the marriage because of pregnancy; the wife has no right to petition to do so. Under Section 47, both husband and wife have grounds for a decree of restitution of conjugal rights, if either refuse to cohabitate with and render conjugal rights to the other. With respect to the wife, if the husband has paid any money to her with respect to a decree under Section 47 and she refuses to comply with the decree within a reasonable time, the money paid becomes a debt due and payable by the wife to the husband and recoverable by action in court.



Trafficking in Persons (Prohibition) Enforcement and Administration Act (2015)

Gender discrimination, Trafficking in persons

The Trafficking in Persons (Prohibition) Enforcement and Administration Act, originally passed in 2003 and amended in 2005 and 2015, criminalizes human trafficking and related abuses. The Act provides trafficked persons with access to adequate health services and protection against discriminatory treatment. The Act establishes a National Agency for the Prohibition of Trafficking in Persons (Part II), establishes Agency Transit Shelters for rescued trafficked persons, and establishes a Victims of Trafficking Trust Fund to provide compensation for victims (Part X). The Act provides protections against discriminatory treatment, barring discrimination on account of gender or sex or on the basis of the victim "having worked in the sex industry." Part IX, Section 61(a). The Act serves as implementing legislation for Nigeria’s international obligation under the Trafficking in Persons Protocol Supplementing the Transnational Organized Crime Convention (TOC), to which Nigeria became a signatory on December 13, 2000. Part Two available here.



National Commission for Women Act (1992)

Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The National Commission for Women Act established the National Commission for Women to promote the general welfare of Nigerian women, “promote the full utilization of women in the development of human resources and bring about their acceptance as full participants in every phase of national development, with equal rights and corresponding obligations,” and “work towards total elimination of all social and cultural practices tending to discriminate against and de-humanise womanhood.” Some of the Commission’s objectives include “mobilizing women collectively in order to improve their general lot and ability to seek and achieve leadership roles in all spheres of society” and “raising consciousness about the rights of women, the availability of opportunities and facilities, their social, political, and economic responsibilities.”



Criminal Code Act (1990)

Abortion and reproductive health rights, Gender discrimination, Sexual violence and rape

The Criminal Code applies to the southern states of Nigeria. The Criminal Code Act distinguishes between the treatment of assault on men and assault on women, with Chapter 29 (Sections 351-356) addressing “Assaults” and Chapter 30 (Sections 357-362) addressing “Assaults on Females: Abduction.” Notably, indecent assault on a man is considered a more serious offense and carries a higher sentence than does indecent assault on a woman. Under Section 353, “[a]ny person who unlawfully and indecently assaults any male person is guilty of a felony, and is liable to imprisonment for three years.” In contrast, under Section 360, “[a]ny person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanor, and is liable to imprisonment for two years.” Rape is defined in section 257. It is defined as “unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband.” Abortion is criminalized by sections 228-230. Abortion is defined in Section 228 as an attempt to procure a miscarriage. A mother trying to cause her own miscarriage is liable for imprisonment for seven years, while anyone who administers to her a poison or otherwise induces a woman’s miscarriage is liable for imprisonment for 14 years, and anyone who supplies or obtains any item with the knowledge of its intended use to cause an abortion is liable for imprisonment for three years. Sections 228-230. The laws derive culpability from intent and apply regardless of whether the woman is actually pregnant.



Constitution of the Federal Republic of Nigeria (1999)

Employment discrimination, Gender discrimination

Sections 15(2) and 42(1) prohibit sex-based discrimination.  Section 17 of the Constitution outlines the elimination of demographically derived disparities as a fundamental objective of state policy. Section 17(3)(e), focuses on gender-based disparity and states that the state shall direct its policy towards ensuring that “there is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever.” Section 26 of the Constitution, which relates to citizenship, specifically provides for extension of a Nigerian man’s citizenship to his foreign-born wife while making no reference to a similar path to citizenship for the foreign-born husband of a woman who is a Nigerian citizen. Section 26(2) provides that the president may confer Nigerian citizenship on “any woman who is or who has been married to a citizen of Nigeria.” By implication, this section limits the right of a Nigerian woman to transmit her nationality to a foreign husband.



Children's Protection and Welfare Act (2011)

Divorce and dissolution of marriage, Gender discrimination

The Children’s Protection and Welfare Act of 2011 aims to address issues of child custody. Stated goals of the act are to give women the right to raise their children and to protect the right of children to be supported by both of their parents.



National Assembly Election (Amendment) Act (2011)

Gender discrimination

The National Assembly Election (Amendment) Act, 2011 repeals and replaces the National Assembly Elections Act of 1992. Section 47(2)(b) states that political parties shall “arrange the candidates in order of preference from top to bottom, with a female or male candidate immediately followed by a candidate of the opposite sex; and (c) include equal numbers of “women and men.”

 



Companies Act (2011)

Employment discrimination, Gender discrimination

The Companies Act of 2011 enshrines in law the right of women to serve as directors of companies. According to the law, women are allowed to establish companies on their own, and the law removes the onus on women of securing spousal consent through Section 5(2), which establishes that “anything contained in the customary or common law” that pre­vents a married person from acting as promoter of a company “without his or her spouse’s con­sent” be disregarded and overridden.



Education Act (2010)

Gender discrimination

The Education Act of 2010 makes primary education free and compulsory for male and female children. Part 2(4)(2)(C) states that “The Minister, Principal Secretary, Teaching Service Commission, proprietors of schools, teachers and school boards shall promote the education of the people of Lesotho” and “ensure that the learner is free from any form of discrimination in accessing education.” While Part 9, Section 41 of the act establishes that at least two of the five members of the proposed Teaching Service Commission must be women.



Legal Capacity of Married Persons Act (2006)

Gender discrimination

The Legal Capacity of Married Persons Act, 2006 (“LCOMP”) removes the minority status of married women and other incidental matters. LCOMP removed the marital power that a husband has over the person and the property of his wife. In addition, LCOMP removes certain restrictions which the marital power places on the legal capacity of a wife, including entering into a contract, suing or being sued, registering immovable property in her name, acting as an executrix of a deceased’s estate, acting as a director of a company, binding herself as surety, and performing any other act that was restricted by any law as a result of the marital power before the commencement of the Act.



Local Government (Amendment) Act (2004)

Gender discrimination

The Local Government (Amendment) Act of 2004 amends the Local Government Act of 1997. It maintains Lesotho’s quota system and mandates that 30% of the total number of seats in municipal, urban, and community councils be reserved for women. It deletes instances of the words “he,” “his,” and “him” throughout the prior act and replaces them with "he or she," "his or her," and "him or her"; reiterates in Section 3 that “not less than one third of the seats in a council shall be reserved for women”; and section 4(3) calls for the creation of a Tender Board, which must have a third of its members be women.



Constitution of Lesotho (1993)

Employment discrimination, Gender discrimination

Section 18(1) of the Constitution makes any law with discriminatory provisions or effect presumptively invalid. Discriminatory is defined as “affording different treatment to different persons attributable wholly or mainly” to their respective descriptions by race, colour, sex, language, and so on. However, Section 18(1) is limited in its scope by the exceptions enumerated in Section 18(4). Section 18(4)(a) exempts any analysis of discrimination for laws pertaining solely to non-citizens of Lesothol; Section 18(4)(b) allows for discriminatory laws related to “adoption, marriage, divorce, burial, devolution of property on death or other like matters which is the personal law of persons of that description”; and Section 18(4)(c) identifies customary law as exempt from evaluation according to Section 18(1). Section 26(1) calls for Lesotho to adopt “policies aimed at promoting a society based on equality and justice for all its citizens regardless of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Section 30 of the Constitution provides for just and favorable conditions of work for women and calls for the creation of particular policies toward the completion of this end, including fair and equal pay, safe working conditions, equal promotion opportunities, and pregnancy and childbirth protections.



Constitution of the Republic of Uganda (1995)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Article 21 of the Constitution of Republic of Uganda prohibits gender discrimination generally and enshrines the principle of equality before the law. It states that “[a]ll persons are equal before and under the law in all spheres of political, economic, social and cultural life”; that they “shall enjoy equal protection of the law”; and that a “person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.”
In Article 31, the Constitution sets the minimum age for marriage at 18 and specifies that “men and women are entitled to equal rights in marriage, during marriage and at its dissolution.” Article 33 pertains specifically to the rights of women and provides that “The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement”; that “Women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities”; and that “Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status, are prohibited by this Constitution.”



Employment (Amendment) Act of 2010 (2010)

Employment discrimination, Gender discrimination

Sections 113-118 of the Employment (Amendment) Act pertain to the rights of women to maternity leave from their employers. The amendment compels employers to pay employees on maternity leave not less than 50% of their salary, establishes the right to maternity allowance unaffected by notice of termination of contract of employment, and prohibits serving notice of termination of contract of employment during maternity leave. It establishes in Section 117 that female employees are entitled to only one maternity allowance per woman. Section 118 mandates that an employer permit a female employee for a half hour twice a day to “suckle her child o