Women and Justice: Topics: Employment discrimination, Gender discrimination, Sexual harassment

Reports

Analysis of the precedents of the Cantonal Courts on the Gender Equality Act (2017)

Employment discrimination, Gender discrimination, Sexual harassment

The study is an in-depth analysis of 190 records of cantonal conciliation hearings and judgments under the Federal Gender Equality Act, 1996 (the “Act”) over the period of 2004 to 2015 by authors Karine Lempen (Law Professor, University of Geneva) and Aner Voloder (Lawyer, Office for Gender Equality of the Municipality of Zurich).  Among the major findings and conclusions reached in the study are the following:

Proceedings under the Act are nearly always brought by private individuals (mainly women) and very rarely by organizations, notwithstanding the provision of the Act authorizing court actions relating to gender discrimination to be brought by organizations. Individuals bringing a case of gender discrimination to the courts most commonly complain of pay discrimination or discriminatory dismissal, and in the vast majority of cases employment has ceased before the court issues its judgment.  Bringing an action under the Act very often entails losing one's job. Almost one-third of discrimination cases relate to pregnancy or maternity, with discrimination often occurring on return to work after maternity leave and the mother being dismissed by the employer. Discriminatory or constructive dismissal cases are often adjudged solely under Swiss employment laws rather than under the specific provisions of the Act. In some cases this has resulted in a failure to relax the plaintiff’s burden of proof as provided in the Act. Most persons bringing proceedings for gender-based discrimination do not win their cases, with the analysis showing that 62.5% of rulings enforcing the Act find mostly or entirely against the claiming employee. Similarly, it is not unusual for the employee in the action to be ordered to pay costs which may amount to several thousand Swiss francs. The protection in the Act against constructive dismissal has proved to be fairly ineffective in practice, with court actions rarely being brought under that provision and all but one of such actions failing. The failure rate is particularly high (82.8%) when the alleged form of discrimination is sexual harassment, with the courts often failing to recognize that the intention of procuring sexual favors is not necessary to a finding of a hostile working environment, and therefore of sexual harassment under the Act.  Moreover, it is rare for judgments to assess the extent to which the employer has met its obligation to prevent harassment. The special compensation allowed under the Act for sexual harassment is rarely awarded.

Based on the conclusions reached in the study, the authors make a number of recommendations -- for amendments to the Act and other specific legislative changes, improved training of the judiciary with regard to the Act, actions by Swiss equality offices (including improved data collection, more in-depth study of maternity-based discrimination in Switzerland and actions to raise awareness generally of the Act and the rights it provides), and universities (to require study of the Act as part of the bachelor’s degree course of study in law) -- in order to improve access to justice for people discriminated against on grounds of gender in working life.



Our Time to Sing and Play: Child Marriage in Nepal, Human Rights Watch (2016)

Domestic and intimate partner violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Statutory rape or defilement

While there are certain legal protections in place, such as a law establishing the minimum age of marriage at 20, enforcement is weak. Police and local governments rarely intervene to prevent child marriages. Nepal’s Post-2015 Sustainable Development Goals, Goal 5, targets ending child marriage by 2030. Further developing the National Plan of Action to End Child Marriage would advance Nepal’s National Strategy to End Child Marriage. 37% of girls in Nepal marry before age 18, 10% percent marry before age 15, and many marry around the time they begin menstruating. Child marriage, mostly resulting from forced marriage arrangements, is most prevalent in marginalized and lower caste communities. The key factors contributing to child marriage include poverty, lack of access to education and reproductive healthcare, child labor, social pressures and gender inequality, and the institution of dowry, which is payment by a bride’s family to the husband’s family for the marriage. In Nepali society, girls are often seen as a burden to a family, because they are expected to live with the husband’s families, as opposed to staying with and financially providing for their own families. The negative impact of child marriage includes dropping out of school, bearing and raising children too early in a child’s life, and domestic violence by the husband or husband’s family.



Avon Global Center 2013 Women and Justice Conference Report (2014)

Acid violence, Gender discrimination, Female genital mutilation or female genital cutting, Harmful traditional practices, Gender violence in conflict, Forced and early marriage, Gender-based violence in general

In December 2013, the Avon Global Center hosted its annual conference in New York, NY on "State Responsibility to End Violence Against Women: The Due Diligence Principle and the Role of Judges."


Lessons Learnt and Experiences Gained in the UNFPA Supported WPC Project on Addressing Sex Selection (2012)

Gender discrimination, Harmful traditional practices

During a three-year project (2008-2011) in India, the WPC assessed the circumstances surrounding and methods to address growing sex selection in India. A systematic process was put into place to set up multiple local-level implementing partners to collect data; increase education and awareness; and launch and maintain programs to induce long-term change of the traditional practices that lead to sex selection.


Exclusion of women from the legal profession in the United States of America, the United Kingdom, and South Africa (2012)

Employment discrimination, Gender discrimination, Harmful traditional practices

Although great strides have been made in breaking down the barriers that have previously kept women from being able to have the same rights and privileges to work in the legal profession that men enjoy, there is still progress to be made.



"They are Destroying Our Futures" Sexual Violence Against Girls in Zambia's Schools (2012)

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

A report by the Avon Global Center for Women and Justice at Cornell Law School, Women and Law in Southern Africa-Zambia, and the Cornell Law School International Human Rights Clinic examining the problem of sexual violence against girls in school in Zambia.



Global Gender Gap Report 2010 (2010)

Gender discrimination

Report published by the World Economic Forum presenting the scope of gender-based disparities and tracking their progress by providing benchmarks of national gender gaps on economic, political, education- and health-based criteria (2010).


Handbook for Legislation on Violence Against Women (2010)

Gender discrimination

Department of Economic and Social Affairs, Division for the Advancement of Women



Human Rights and Gender Equality in Health Sector Strategies: How to Assess Policy Coherence (2011)

Gender discrimination

Report providing a tool to consider practical options and posing critical questions for policy-makers to identify gaps and opportunities in the review or reform of health sector strategies as well as other sectoral initiatives. Developed by the World Health Organization, the Office of the High Commissioner for Human Rights (OHCHR) and the Swedish International Development Cooperation Agency (2011).


Minority Rights: International Standards And Guidance for Implementation (2010)

Gender discrimination

Report by the Office of the United Nations High Commissioner for Human Rights (OHCHR)(2010).



Progress of the World's Women 2008/2009: Who Answers to Women? (2008)

Gender discrimination

UN Women report presenting innovative measures states and international institutions are taking to increase accountability to women, focusing on politics and governance, access to public services, economic opportunities, justice, and the distribution of international assistance for development and security (2008).


Nowhere to Turn: Failure to Protect, Support & Assure Justice for Darfuri Women (2009)

Gender discrimination, Sexual violence and rape

By Physicians for Human Rights with Harvard Humanitarian Initiative.



The Role of the Judiciary in Promoting Gender Justice in Africa (English) (2008)

Gender discrimination

Report of the Partners for Gender Justice Conference, Accra, Ghana 19-21 Nov. 2008. English version.


Hidden in the Mealie Meal (2007)

Gender discrimination, Gender-based violence in general, Property and inheritance rights, Sexual violence and rape

Human Rights Watch Report on the Zambian government's failure to meet its international obligations to combat violence and discrimination against women. The report documents abuses that obstruct women's ability to start and adhere to HIV treatment regimens, including violence against women and insecure property rights (2007).



The Role of the Judiciary in Promoting Gender Justice in Africa (French) (2008)

Gender discrimination

Report of the Partners for Gender Justice Conference, Accra, Ghana 19-21 Nov. 2008. French version.


African Statistical Journal: A Special Issue on Gender (2010)

Gender discrimination

Special journal issue of the African Development Bank focused on gender statistics.


Women's Empowerment Principles: Equality Means Business (2010)

Gender discrimination

UNIFEM report offering practical guidance to business and the private sector on how to empower women in the workplace, marketplace and community (2010).


CEDAW and Muslim Family Laws (2010)

Gender discrimination

Report published by MUSAWAH for Equality in the Family on States' parties justifications for their failure to implement CEDAW with regard to family law and practices that discriminate against Muslim women.


GENDER 2010 Report Card on the International Criminal Court (2011)

Gender discrimination, Sexual violence and rape, Harmful traditional practices

Report by The Women's Initiatives for Gender Justice assessing the implementation by the ICC of the Rome Statute, Rules of Procedure, Evidence and Elements of Crimes, and in the gender mandates they embody.


Global Financial and Economic Crisis and its Impact on Women: a Human Rights Perspective (2008)

Gender discrimination

Report by Programme on Women's Economic, Social and Cultural Rights (PWESCR)on a South Asian Regional workshop hosted by PWESCR, UNWomen and Heinrich Boll Foundation, presenting a gendered view of human rights in South Asia (2010).


You Dress According to Their Rules (2010)

Gender discrimination, Harmful traditional practices, Sexual harassment

Report by Human Rights Watch documenting acts of violence, harassment, and threats against women in Chechnya to intimidate them into wearing a headscarf or dressing more "modestly."



In Pursuit of Peace (2010)

Gender discrimination

Launched in tandem with the June 2010 Review Conference of the Rome Statute of the International Criminal Court; includes recommendations for improving gender sensitivity at the ICC, and particular statements by activists from DR Congo, Central African Republic and Uganda.


Legislation

Article 164 of the Swiss Civil Code: Allowance for Personal Use (2019)

Gender discrimination

This article provides that a spouse who looks after the household, cares for the children, or supports the career or business of the other spouse is entitled to receive from the latter a reasonable allowance for his or her own personal use. In determining the allowance, “account must be taken of the personal resources of the receiving spouse and the need to provide conscientiously for the family, career and business.” Unofficial English translation available here.



The Marriage Act of 1961 (2017)

Forced and early marriage, Gender discrimination

Section 11 sets the marriage age at 18. Section 12 allows authorization of marriage of persons under 18 but above 16 years of age in exceptional circumstances, after obtaining authorization from a Judge or Magistrate. Furthermore, section 13 provides that a marriage of a minor is not to be solemnized without consent of parents and other administrative steps.



Sex Discrimination Act of 1984 (2017)

Employment discrimination, Gender discrimination

Section 5 prohibits sex discrimination. The Act specifies that a person has committed sex discrimination if they treat someone less favorably because of their sex. Section 6 further prohibits discrimination based on marital or relationship status and section 7 prohibits discrimination based on pregnancy or potential pregnancy. Further, section 7AA prohibits breastfeeding discrimination . Moreover, section 7B deals with indirect discrimination and specifies that if an imposition of a condition, requirement, or practice has or is likely to have the disadvantaged effect, it is only allowed if such condition, requirement or practice is reasonable. Finally, pursuant to section 7D a person may take special measures for the purpose of achieving substantive equality. Such measures are not discriminatory.



Reform of Customary Law of Succession and Regulation of Related Matters Act 11 (2009)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Act abolishes the customary rule of primogeniture in as far as it applies to the law of succession and further extends the application of the Intestate Succession Act to the deceased estates of Africans who die intestate (without a will) and provides guidelines for interpreting the Intestate Succession Act in order to give effect to the new provisions and to ensure the protection of the rights of women to inherit.



Promotion of Equality and Prevention of Unfair Discrimination Act (2000)

Employment discrimination, Female genital mutilation or female genital cutting, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

The purpose of the Promotion of Equality and Prevention of Unfair Discrimination Act is to give effect to section 9 of the Constitution of the Republic of South Africa, read in conjunction with item 23(1) of its sixth schedule. The effect of this is to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith. Section 8 expands on the provisions of Section 9 by setting out, without limitation, the following specific examples of such prohibited discrimination: (a) gender-based violence; (b) female genital mutilation; (c) the system of preventing women from inheriting family property; (d) any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child; (e) any policy or conduct that unfairly limits access of women to land rights, finance, and other resources; (f) discrimination on the ground of pregnancy; (g) limiting women’s access to social services or benefits, such as health education and social security; (h) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons; and (i) systemic inequality of access to opportunities by women as a result of the sexual division of labor.  The Act further regulates which party will bear the burden of proof in discrimination cases and further sets out which factors should be taken into account in determining whether discrimination is fair or unfair.



The Constitution of the Republic of South Africa (1996)

Gender discrimination

Section 9 of the Constitution provides for the right to equality. Section 9(1) provides that "Everyone is equal before the law and has the right to equal protection and benefit of the law."  Section 9(3) states that "The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth". Section 9(4) provides that "No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination." Finally, subsection (5) provides that "Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair." This includes discrimination on the basis of gender, sex or pregnancy.



Law on the Protection of Women's Rights and Interests (2005)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Law on the Protection of Women’s Rights and Interests was adopted by the National People’s Congress on April 3, 1999 and amended on August 28, 2005. This Law stipulates that women have equal rights with men “in all aspects of political, economic, cultural, social and family life.” It also establishes the State’s responsibility to prevent domestic violence. Article 1 provides that “this Law is formulated to protect women’s lawful rights and interests, promote equality between men and women and allow full pay to women’s role in socialist modernization.” Article 7 provides that “[t]he All-China Women’s Federation and women’s federations at various levels shall, in accordance with the laws and charter of the All-China Women’s Federation,” uphold women’s rights and protect the rights and interests of women. Article 12 provides that the State shall “actively train and select female cadres” and “pay attention to the training and selection of female cadres of minority nationalities.” Article 23 provides that “[w]ith the exception of the special types of work or post unsuitable to women, no unit may, in employing staff and workers, refuse to employ women because of sex or raise the employment standards for women.” Article 23 also provides that “[t]he labor (employment) contract or service agreement shall not contain restrictions on her matrimony and child-bearing.” Articles 24 and 25 stipulate equal pay and equal opportunity for promotion for men and women. Article 26 provides that all units shall “protect women’s safety and health during their work or physical labor, and shall not assign them any work or physical labor not suitable to women,” and that “[w]omen shall be under special protection during menstrual period, pregnancy, obstetrical period and nursing period.” Article 27 provides that “[n]o entity may, for the reason of matrimony, pregnancy, maternity leave or breast-feeding, decrease a female employee’s wage, dismiss her or unilaterally terminate the labor (employment) contract or service agreement.” Article 45 prohibits husbands from applying for a divorce “within one year after childbearing or within 6 months after termination of pregnancy” of a woman. Article 46 prohibits domestic violence. Article 51 provides that “[w]omen have the right to child-bearing in accordance with relevant regulations of the state as well as the freedom not to bear any child.”



Marriage Law of the People's Republic of China (2001)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Forced and early marriage, Gender discrimination

The Marriage Law of the People’s Republic of China was adopted by the National People’s Congress on September 10, 1980 and amended on April 28, 2001. Article 2 provides that the marriage system is “based on the free choice of partners, on monogamy and on equality between man and woman.” Article 3 prohibits interference by a third party, mercenary marriage and exaction of money or gifts in connection with marriage. Article 6 provides the minimal marriage age is twenty-two for men and twenty for women. Article 13 provides that husband and wife shall have equal status in the family. Article 34 provides that “a husband may not apply for a divorce when his wife is pregnant, or within one year after the birth of the child, or within six months after the termination of her gestation.” Article 43 provides that neighborhood committee, villagers committee or the unit[1] to which the family belongs have an obligation to deter domestic violence. English version available here

 

[1] “Unit” is a term of art with strong communist connotations, which refers to the company/organization/group to which a person belongs.



The Constitution of the People's Republic of China (Articles 48-49) (2004)

Employment discrimination, Forced and early marriage, Gender discrimination, Property and inheritance rights

The Constitution of the People’s Republic of China was adopted by the National People’s Congress and promulgated for implementation on December 4, 1982. It has been amended several times, with the most recent amendment occurring on March 14, 2004.  Article 48 provides that women and men have equal rights. It states that “[w]omen in the People’s Republic of China enjoy equal rights with men in all spheres of life, in political, economic, cultural, social and family life. The State protects the rights and interests of women, applies the principle of equal pay for equal work to men and women alike and trains and selects cadres from among women.” Article 49, moreover, provides that “violation of the freedom of marriage is prohibited. Maltreatment of old people, women and children is prohibited.” English version available here



Constitution of Zimbabwe (Amendment No. 20) (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Employment discrimination, Gender discrimination, Harmful traditional practices, Property and inheritance rights

Zimbabwe’s new 2013 Constitution addressed women’s rights and gender equality, and its bill of rights addressed damaging cultural and discriminatory practices. A gender commission was also established to accelerate the implementation of provisions related to women. More specifically, the Constitution recognized gender equality and women’s rights among Zimbabwe’s founding values and principles. It mandated that the State and all its institutions consider gender equality in laws and policy, to implement measures that provide care and assistance to mothers, and to grant women opportunities to work. The State must also prevent domestic violence, ensure marriages are consensual, and that there are equal rights in marriages. In the event of dissolution of marriage, the State must provide for the rights of spouses and children. The state is also obliged to afford girls and boys equal educational opportunities. The bill of rights specifically stipulates that women are equal to men, including deserving equal opportunities in political, economic, and social activities. Provision was also made for legislative seats reserved for women in the National Assembly. Finally, gender equality must be considered in making judicial appointments.



Labor and Labor Relations: Wage Discrimination Based on Sex (General Laws of Rhode Island)

Employment discrimination, Gender discrimination

To prevent wage discrimination, Rhode Island’s equal pay law provides that no employer shall discriminate between the sexes in the payment of wages. However, merit-based variations in pay including, but not limited to, those based on skill, experience, and number of hours worked are not prohibited. Any attempt to contract around the equal pay law will be void.



Code of Virginia: Property Rights of Married Women (Va. Code § 55-35)

Gender discrimination, Property and inheritance rights

This Virginia law provides that a married woman shall have the right to acquire, hold, use, control and dispose of property as if she were unmarried. 



Code of Virginia: Equal Pay Irrespective of Sex (Va. Code Ann. § 40.1-28.6)

Employment discrimination, Gender discrimination

This Virginia law prohibits employers from discriminating between employees on the basis of sex by paying less wages to employees of a certain sex than employees of the opposite sex for equal work on jobs that require equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex.



Virginia Human Rights Act (Va. Code Ann. §§ 2.2-3900-03) (2014)

Employment discrimination, Gender discrimination, Property and inheritance rights

Virginia’s Human Rights Act outlines the policy of the Commonwealth to “[s]afeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of public accommodation,” including in education, real estate, and employment. The Act defines the “unlawful discriminatory practice” and “gender discrimination” as conduct that violates any Virginia or federal statute or regulation governing discrimination based on race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability. The terms “because of sex or gender” or “on the basis of sex or gender” or similar terms in reference to discrimination in the Code and acts of the General Assembly include pregnancy, childbirth or related medical conditions. Women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all purposes as persons not so affected but similar in their abilities or disabilities.



Offenses Pertaining to Schools (Title 16, Chapter 38, General Laws of Rhode Island)

Gender discrimination, LGBTIQ

Discrimination on the basis of sex is prohibited in all public colleges, community colleges, universities, and all other public institutions of higher learning in the state that are operated by the board of governors for higher education. This prohibition applies to employment, recruitment, and hiring practices, employment benefits, admissions, curricular programs, extracurricular activities including athletics, counseling, financial aid including athletic grants-in-aid, student medical, hospital, and accident or life insurance benefits, facilities, housing, rules and regulations, research, and all other school functions and activities. Notwithstanding these prohibitions, schools may do the following: (i) maintain separate but comparable restrooms, dressing, and shower facilities for males and females, including reasonable use of staff of the same sex as the users of these facilities; (ii) provide separate teams for contact sports or for sports where selection for teams is based on competitive skills, provided that equal athletic opportunities which effectively accommodate the interests and abilities of both sexes are made available; (iii) maintain separate housing for men and women, provided that housing for students of both sexes is as a whole both proportionate in quantity to the number of students of that sex that apply for housing and comparable in quality and cost to the student; and (iv) permit the establishment and operation of university based social fraternities and sororities.



Rhode Island Fair Housing Practices Act (Title 34, Chapter 37, General Laws of Rhode Island)

Gender discrimination, LGBTIQ, Property and inheritance rights

The Rhode Island Fair Housing Practices Act prohibits housing practices that discriminate based on gender identity or expression, which is defined to include a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth.



Local Authorities Act (1992)

Gender discrimination

The Local Authorities Act establishes local authority councils within local government and defines their powers, duties and functions. The Act provides that the slate of candidates from any given political party up for election in a municipal, village or town council election must contain at least three female persons where the council consists of 10 or fewer members and at least five female persons where a council consists of 11 or more members, in an attempt to increase the presence of women in decision making positions. 



Social Security Act (1994)

Employment discrimination, Gender discrimination

The Social Security Act provides maternity benefits to women through a compulsory combined scheme for sickness, maternity and death benefits through matching employer and employee contributions. The Act establishes the National Medical Benefit Fund to administer the payments for such benefits and the National Pension Fund for pension benefits for those who have retired. The Act also makes a provision for the funding of training programs for disadvantaged and unemployed persons through a Development Fund.



Communal Land Reform Act (2002)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Communal Land Reform Act 2002 aims to regulate the allocation of customary land rights in communal lands and to establish Communal Land Boards. Communal land that previously belonged to indigenous communities is now vested in the state, which then distributes and allocates the land among the rural communities. This Act takes precedence over customary law and is much more favorable to women’s rights. Under the Act, four women must be appointed to the Communal Land Boards. Furthermore, the Act provides that a customary land right that was allocated to a particular holder of such right shall upon the death of such holder be re-allocated to the surviving spouse. This provides protection to a surviving wife who may now remain on the communal land where previously she would lose the rights to such land upon the death of her husband.



Affirmative Action (Employment) Act (1998)

Employment discrimination, Gender discrimination

The aim of this Act is to achieve equal employment opportunities through affirmative action plans to redress the conditions of designated persons in the Act who have been previously disadvantaged by past discriminatory laws and practices with the aim of eliminating discrimination in the workplace. The Act also establishes an Employment Equity Commission. Women are specifically mentioned as a designated group. An affirmative action plan achieves its purpose by obliging employers to make equitable efforts to accommodate and further the employment opportunities of those in designated groups. Employers must also fill positions of employment by giving priority and preferential treatment to those in designated groups. Where employers do not adhere to the Act, they may be referred to the Commission or to mediation, and may be placed under review. Furthermore, any person who discriminates against a person who has participated in the proceedings provided for in the Act, or obstructs or prevents compliance with the Act by any party, or fails to comply with certain provisions of the Act can be held criminally liable and on conviction be liable to a fine not exceeding N$16,000 or to imprisonment for a period not exceeding 4 years or both.



Co-Operatives Act (1996)

Employment discrimination, Gender discrimination

This Act states that where a co-operative has more than five female members, or if more than one-third of its members are women (whichever is the lesser) and no woman has been elected as a member of its board, the board must appoint a woman as a board member within its first meeting to increase the representation of women in management positions. A similar provision is provided for sub-committees of boards.



Labour Act (2007)

Employment discrimination, Gender discrimination, Sexual harassment

The Labour Act (the “Act”) establishes protections for employees and regulates the employer/employee relationship. In particular, this Act prohibits any form of child labor, forced labor, or discrimination and/or sexual harassment in the workplace. The Act also provides for basic conditions of employment to which an employer must adhere, including maternity leave for female employees. An employer may not provide disadvantageous terms in an employment contract or promote unfair labor practices. Violations of this Act expose employers to various penalties. Employees may refer disputes to the Labour Commissioner or the Labour Court to obtain relief.



Maintenance Act (2003)

Divorce and dissolution of marriage, Gender discrimination

The Maintenance Act (the “Act”) imposes equal rights and burdens in relation to the payment of child support (and enforcement of child support orders) on both parents and abolishes customary laws to the contrary. The Act also states that husbands and wives are equally responsible for each other’s maintenance.



Children's Status Act (2006)

Gender discrimination, Property and inheritance rights

Among other things, the Children’s Status Act gives children born out of wedlock the same legal privileges as children born to married couples (e.g., inheritance rights, custody, guardianship, etc.) and provides various legal mechanisms (e.g., court orders) to protect these rights. 



Married Persons Equality Act (1996)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Married Persons Equality Act (the “Act”) abolishes the marital power of the husband over his wife and her property and amends community property laws. It further provides women with the power to register immovable property in their own name, gives them legal capacity to litigate and contract, and allows them to act as directors of companies. The Act also establishes that the minimum age for marriage is 18, thereby prohibiting child marriages.



The Constitution of the Republic of Namibia (1990)

Divorce and dissolution of marriage, Employment discrimination, Forced and early marriage, Gender discrimination

The Constitution serves as the fundamental law of Namibia and establishes the Republic of Namibia as an independent, secular, democratic, and unitary state safeguarding the rights to justice, liberty, dignity, and equality. Chapter 3 of the Constitution protects fundamental rights and freedoms, including the right to equality and freedom from discrimination, including on the grounds of sex. It also bans child marriages and mandates equal rights for men and women entering into marriage, during the marriage, and at the dissolution of the marriage. Additionally, Parliament may not make any laws that contravene the Constitution, nor can the Executive take any action that abolishes or contravenes Chapter 3 of the Constitution. Any such laws or actions would be invalid.



Decreto Legislativo 26 marzo 2001, n. 151 (Legislative Decree No. 151/2001) (2001)

Employment discrimination, Gender discrimination

This legislative decree protects maternity and paternity, and prohibits discrimination on the basis of either. It regulates parental leave, leave for the illness of a child, rest, and the treatment of pregnant workers to protect their health. (Note: PDF is the consolidated text only. Follow the external link for the entire text of the decree.)



Codice Civil (2019)

Domestic and intimate partner violence, Gender discrimination, Property and inheritance rights

The Italian Civil Code provides for succession and inheritance, each of which require equal treatment of male and female children (Book II, Title I). In cases in which the conduct of a spouse or co-habitant causes serious physical or mental harm to the other spouse or co-habitant, but the conduct does not constitute a criminal act, the court may issue a family order of protection. A judge may order the party concerned to stay away from the home, the spouse's place of work, the residences of extended family members, and the children's school (Book I, TItle IX, art. 342). The judge can also order the intervention of social services or a family mediation center.



Costituzione della Repubblica Italiana (Constitution of the Republic of Italy) (1947)

Employment discrimination, Gender discrimination

The Constitution provides for equality before the law without consideration of sex, race, religion, political affiliation, language, and social conditions (art. 3). It also recognizes the moral and legal equality of spouses (art. 29). Finally, it mandates equal employment opportunity for men and women (art. 37).

(English translation available through RefWorld.)



Código Civil (Civil Code) (2010)

Forced and early marriage, Gender discrimination, LGBTIQ

Section 1577 of the Portuguese Civil Code provides for the right of marriage, regardless of gender, to anyone over the age of 16, provided that whoever wishes to marry before the age of 18 must also present an authorization of their parents or legal guardians. The Civil Code also provides that marriage requires free will of both parties, and therefore any marriage that is performed without the will of both spouses is void.



Código do Trabalho (Lei n.º 7/2009) (2018)

Employment discrimination, Gender discrimination, Sexual harassment

Section 29 of the Portugese Labor Law ensures equal opportunity in labor and and prevents gender discrimination. The Code also guarantees maternity and paternity leave, bans harassment, establishes universal preschool for children until the age of five, and requires children to attend school.



Constituição da República Portugal (Constitution of the Portugese Republic) (1976)

Gender discrimination, LGBTIQ

The Portuguese Constitution in Section 9 provides that it is the duty of the State to promote equality among men and women.  Section 13 further provides that no one shall be privileged or discriminated against for birth, gender, race, language, place of origin, religion, political or ideological conditions, social or economic status, or sexual orientation.



Código penal (Penal Code) (1999)

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

Chapter VI of Title 8 (Crimes against Life and Physical Integrity) delineates the circumstances under which abortion is illegal and establishes the penalties performing illegal abortions. Pursuant to Article 267 of the Criminal Code, anyone who, without complying with public health regulations established in respect of abortions, performs an abortion or in any way destroy the embryo, with the consent of the pregnant woman, is subject to a penalty of imprisonment for three months up to one year or a fine of 100 to 300 cuotas. If an abortion is performed (1) for profit, (2) outside of official institutions or (3) by a person that is a physician, such person is subject to an increased punishment of imprisonment for two to five years. Pursuant to Article 268, an individual who purposefully destroys the embryo (a) without using any force or violence on the pregnant woman, but without her consent, is subject to two to five years’ imprisonment or (b) with the use of any force or violence on the pregnant woman, is subject to three to eight years’ imprisonment. If concurrently with the occurrence of (a) or (b), any of the circumstances described in (1), (2) or (3) also exist, the punishment is increased to imprisonment for four to ten years. If a pregnant woman dies as a result of any of the above actions, the offending person is subject to imprisonment for a period of five to twelve years. Articles 270 and 271, respectively, prescribe the punishments for those who, without intending to do so, cause an abortion and for those who prescribe any abortion-inducing substance to destroy the embryo.

 

Chapter I of Title XI covers crimes against the normal development of sexual relations. Article 298 prescribes a penalty of four to ten years imprisonment for anyone who rapes a woman (either through vaginal intercourse or contra naturam) if during the criminal event any of the following circumstances occurs: (a) use of force or sufficient intimidation in order to achieve the goal or (b) if the victim is in a mentally disturbed state or suffers from temporary insanity, or the victim is deprived of reason or sense for any reason, or unable to resist, or lacks the ability to understand the consequences of her actions or to conform her conduct. Article 298 prescribes a term of imprisonment of 7 to 15 years if (a) the event is carried out with the participation of two or more persons, (b) if the perpetrator dresses up in military uniform or purports to be a public official, in each case, to facilitate consummating the act or (c) if the victim is over 12 and under 14 years of age. Finally, the Article prescribes a term of imprisonment of 15 to 30 years or the death penalty if (a) the event is carried out by a person who has previously been sanctioned for the same crime, (b) as a result of the act, the victim suffers serious injuries or illness, or (c) if the perpetrator knows that he is infected with a sexually transmitted disease. Anyone who rapes a minor who is under 12 years of age will be punished with either a term of imprisonment of 15 to 30 years or the death penalty, even if none of the circumstances described in the preceding sentence occur. Article 299 of the Criminal Code sanctions individuals guilty of “active” pedophilia. Any person who commits an act of “active” pedophilia using violence or intimidation, or by taking advantage of the fact that the victim is deprived of reason or sense or unable to resist, will be punished with imprisonment for seven to 15 years. Such penalty increases to 15 to 30 years or death if (a) the victim is a minor under 14 years of age, even if the circumstances set forth in the immediately preceding sentence are not present, (b) if, as a consequence of the criminal act, the victim suffers serious injuries or illness or (c) if the perpetrator has been previously sanctioned for the same crime.       

Article 295 imposes a punishment of imprisonment for a term of six months to two years or a fine of 200 to 500 cuotas, or both, to anyone who discriminates, or promotes or incites, discrimination, against another person, with manifestations in an offensive manner, on account of sex, race, color or national origin, or with actions to obstruct or impede, with motives relating to sex, race, color or national original, the exercise or enjoyment of rights of equality set forth in the Constitution. Any person who spreads ideas based on the superiority of races or racial hatred or commits, or incites, acts of violence against any race or group of people of another color or ethnic origin, shall be subject to the same punishment as indicated above. 

 

El Capítulo VI del Título 8 (Delitos contra la vida y la integridad física) describe las circunstancias bajo las cuales el aborto es ilegal y establece las sanciones por realizar abortos ilegales. En conformidad con el artículo 267 del Código Penal, cualquier persona que, sin cumplir con las normas de salud pública establecidas con respecto a los abortos, realice un aborto o destruya de cualquier modo el embrión, con el consentimiento de la mujer embarazada, está sujeta a una pena de prisión. Por tres meses hasta un año o una multa de 100 a 300 cuotas. Si se realiza un aborto (1) con fines de lucro, (2) fuera de las instituciones oficiales o (3) por una persona que es un médico, dicha persona está sujeta a un aumento de la pena de prisión de dos a cinco años. En conformidad con el Artículo 268, una persona que destruye a propósito el embrión (a) sin usar ninguna fuerza o violencia contra la mujer embarazada, pero sin su consentimiento, está sujeta de dos a cinco años de prisión o (b) con el uso de cualquier fuerza o violencia en la mujer embarazada, está sujeto de tres a ocho años de prisión. Si concurrentemente con la ocurrencia de (a) o (b), cualquiera de las circunstancias descritas en (1), (2) o (3) también existen, el castigo se incrementa a la prisión de cuatro a diez años. Si una mujer embarazada muere como resultado de cualquiera de las acciones anteriores, la persona ofensora está sujeta a prisión por un período de cinco a doce años. Los artículos 270 y 271, respectivamente, prescriben los castigos para aquellos que, sin la intención de hacerlo, causan un aborto y para aquellos que prescriben cualquier sustancia inductora del aborto para destruir el embrión.

 

El Capítulo I del Título XI cubre los delitos contra el desarrollo normal de las relaciones sexuales. El artículo 298 prescribe una pena de cuatro a diez años de prisión para toda persona que viole a una mujer (ya sea por coito vaginal o contra naturam) si durante el evento criminal ocurre alguna de las siguientes circunstancias: (a) uso de la fuerza o suficiente intimidación para: lograr la meta o (b) si la víctima está en un estado mentalmente perturbado o sufre de locura temporal, o si la víctima está privada de razón o sentido por cualquier razón, o no puede resistirse, o carece de la capacidad de entender las consecuencias de las acciones o para conformar su conducta. El artículo 298 prescribe un período de prisión de 7 a 15 años si (a) el evento se lleva a cabo con la participación de dos o más personas, (b) si el perpetrador se viste de uniforme militar o pretende ser un funcionario público, en en cada caso, para facilitar la consumación del acto o (c) si la víctima es mayor de 12 años y menor de 14 años. Finalmente, el artículo prescribe un período de prisión de 15 a 30 años o la pena de muerte si (a) el evento es llevado a cabo por una persona que ha sido sancionada previamente por el mismo delito, (b) como resultado del acto, la víctima sufre lesiones o enfermedades graves, o (c) si el autor sabe que está infectado con una enfermedad de transmisión sexual. Cualquier persona que viole a un menor de edad menor de 12 años será castigada con una pena de prisión de 15 a 30 años o con la pena de muerte, incluso si no ocurre ninguna de las circunstancias descritas en la oración anterior. El artículo 299 del Código Penal sanciona a las personas culpables de pedofilia "activa". Cualquier persona que cometa un acto de pedofilia "activa" mediante el uso de la violencia o la intimidación, o aprovechando el hecho de que la víctima está privada de razón o sentido o no puede resistir, será castigada con pena de prisión de siete a 15 años. Dicha penalización aumenta a 15 a 30 años o fallece si (a) la víctima es menor de 14 años, incluso si las circunstancias establecidas en la oración inmediatamente anterior no están presentes, (b) si, como consecuencia de la acto criminal, la víctima sufre lesiones graves o enfermedad o (c) si el autor ha sido previamente sancionado por el mismo delito.

 

El artículo 295 impone una pena de prisión de seis meses a dos años o una multa de 200 a 500 cuotas, o ambas, a cualquier persona que discrimine, promueva o incite a la discriminación de otra persona, con manifestaciones de manera ofensiva. , debido al sexo, raza, color u origen nacional, o con acciones para obstruir o impedir, con motivos relacionados con el sexo, raza, color u origen nacional, el ejercicio o disfrute de los derechos de igualdad establecidos en la Constitución. Cualquier persona que difunda ideas basadas en la superioridad de las razas o el odio racial o cometa, o incite, actos de violencia contra cualquier raza o grupo de personas de otro color u origen étnico, estará sujeta al mismo castigo que se indicó anteriormente.



Código de Trabajo (Labor Code - Law No. 116 of December 20, 2013) (2013)

Employment discrimination, Gender discrimination

Chapter 1 of Cuba’s Labor Code sets forth the basic principles of the Labor Code, with specific reference to providing women with positions that are compatible with their physical and physiological characteristics and allowing women to incorporate themselves in the workforce, and entitlements to maternity leave for women, before and after childbirth, including medical services, free of cost, required by maternity. Additionally, Chapter 8 of the Labor Code is devoted to promoting policies conducive to women’s labor, including requirements that (1) the workplace create and maintain labor and sanitary conditions that are adequate for the participation of women in the labor process (Section 2); (2) labor conditions are consistent with the physical and physiological characteristics of women, taking into account, inter alia, women’s elevated functions as mothers (Section 4); and (3) single mothers be provided with stipends to help them care for their children until they return to work (Section 4).



Republic of Cuba Constitution of 1976 (amended 2002; English) (1976)

Employment discrimination, Gender discrimination

Article 44 of Cuba’s Constitution states that women and men enjoy equal economic, political, cultural, social and familial rights and that Cuba (the “State”) “guarantees that women will be offered the same opportunities and possibilities as men to achieve their full participation in the development of the country.” Article 44 further states that the State grants working women paid maternity leave before and after childbirth, and temporary work options compatible with their maternal function.



Law No. 13 of 2003 Concerning Manpower (2003)

Employment discrimination, Gender discrimination

The prevailing Indonesian labor laws reflect anti-discrimination principles. Each employee shall have equal opportunity without discrimination to obtain work and shall be entitled to equal treatment from the employer without discrimination (Articles 5 and 6 of the Labor Law). The Labor Law stipulates that termination of an employment relationship shall not be permitted if it is based on the ideology, religion, political inclination, ethnic group, race, social group, gender, physical condition or marital status of the employee (Article 153 (i) of the Labor Law).



Penal Code of Indonesia (1999)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ, Sexual violence and rape, Statutory rape or defilement

Article 260 punishes spouses who conceal from their spouse a legal barrier to marriage with a maximum sentence of five years imprisonment. Article 284 punishes adulterous spouses and their partners, regardless of their marital status. The penal code only criminalizes acts of rape outside marriage unless the wife is underage and incurs injuries as a result. Articles 285 prohibits forcing or threatening force a woman to have sexual intercourse outside of marriage and punishes violators with a maximum penalty of 12 years. Article 286 punishes sexual intercourse with an unconscious or helpless woman with a maximum of nine years imprisonment. If there is a complaint, Article 287 imposes a maximum sentence of nine years imprisonment for “carnal knowledge” of a girl outside of marriage when the man knows or reasonably should presume that she is less than 15 years of age. Prosecutions are triggered automatically when the girl is less than 12 years of age. Article 288 punishes husbands that have “carnal knowledge” of their wives who “are not yet marriageable” if it results in injury (four years imprisonment), serious injury (eight years), or death (12 years). Article 292 punishes adults that have carnal knowledge of those they know to be or reasonably should know to be minors of the same sex with a maximum of five years imprisonment. Article 293 punishes sexual abuse of a minor with a maximum of five years imprisonment. Incest is punishable by a maximum of seven years imprisonment pursuant to Article 294. Article 297 prohibits trafficking in woman and boys, which carries a maximum sentence of six years imprisonment. Article 299 imposes a four-year maximum sentence for abortion and provides for a one-third increase in sentencing for professionals (e.g., doctor, midwife) who perform abortions.



Law No. 7 of 1984 on the Elimination of All Forms of Discrimination Against Women (1984)

Gender discrimination, International law

This law ratifies the UN treaty on the convention on Elimination of All Forms of Discrimination Against Women (adopted by the UN General Assembly on 18 December 1979 (resolution 34/180)) to help prevent any gender-based discrimination against women and ensuring that women will have equal rights and opportunities in all fields of life.



Law No. 1 of 1974 Marriage Law (1974)

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

This law sets the legal age of marriage without parental consent at 21 years of age. With parental consent, girls may marry at age 16 and men may marry at age 19. Marriages under the legal age are void and there are penalties for knowingly entering into or authorizing child or early marriage. The law also sets the requirements for polygamy, which include the first wife’s inability to fulfill her spousal duties (e.g., bearing children), the permission of the man’s current wife or wives, permission from the local Court, and proof that the man will treat all of his wives and children fairly and provide for them equally. Women are prohibited from marrying a second husband. The law also provides the conditions for the cancellation (annulments and divorce) of a marriage, the obligations of husbands and wives, property rights of spouses, the obligations of parents to their children, the legitimacy of children, the requirements of guardianship, foreign marriages, and the children of mixed-religion marriages.



Law No. 68 of 1958 (1970)

Gender discrimination, International law

This law ratifies the UN treaty on the convention on Political Rights of Women (Convention on the Political Rights of Women open for signature on 31 March 1953) recognizing that everyone has a right to take part in the government of their country and recognizing women’s right to vote and participate in the political process of the country. This law gives the same rights to Indonesian women as is provided under the convention and protects those rights under Indonesian Law.



Law on Employment and Work of Foreigners (2015)

Employment discrimination, Gender discrimination, LGBTIQ

Article 4(6) of the Law on Employment and Work of Foreigners provides that when employing a foreigner, the employer must not put the job seeker in less favourable position due to race, color of skin, gender, age, health condition, that is, disability, religious, political or other convictions, trade union membership, national or social background, family status, property status, sexual orientation, or due to other personal circumstances. (English translation available from the ILO through the external link.)



Law on Equal Opportunities for Women and Men (2012)

Employment discrimination, Gender discrimination, Sexual harassment

The Law on Equal Opportunities for Women and Men (the “LEOWM”) is specialized legislation that prohibits discrimination on grounds of sex and gender. Articles 3(3), 4, 5 and 7 expressly mention that prohibition of sex discrimination is an essential part of the law. The LEOWM further provides that “gender-based sexual harassment is any type of unwanted verbal, non-verbal or physical behaviour of sexual nature, aimed at or resulting in violation of the dignity of a person, especially when an intimidating, hostile, degrading, humiliating or offensive atmosphere is created.” (English translation available from the ILO through the external link.)



Law on Equal Opportunities for Women and Men (2012)

Gender discrimination, Sexual harassment

The Law on Equal Opportunities for Women and Men (the “LEOWM”) is specialized legislation that prohibits discrimination on grounds of sex and gender. Articles 3(3), 4, 5 and 7 expressly mention that prohibition of sex discrimination is an essential part of the law. The LEOWM further provides that “gender-based sexual harassment is any type of unwanted verbal, non-verbal or physical behaviour of sexual nature, aimed at or resulting in violation of the dignity of a person, especially when an intimidating, hostile, degrading, humiliating or offensive atmosphere is created.” (English translation available from the ILO through the external link.)



Law on Prevention of and Protection from Discrimination (Official Gazette of the Republic of Macedonia nos. 50/2010, 44/2014, 150/2015, 31/2016 and 21/2018) (2010)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The Law on Prevention of and Protection from Discrimination (the “LPPD”), which entered into force in 2011, introduced the concepts of direct and indirect discrimination (Article 6), instruction to discriminate (Article 9) and harassment and sexual harassment (Article 7). The LPPD covers almost all grounds of discrimination as covered by EU law i.e. “ sex, race, colour, gender, belonging to a marginalized group, ethnic origin, language, nationality, social background, religion or religious beliefs, other types of beliefs, education, political affiliation, personal or social status, mental and physical impediment, age, family or marital status, property status, health condition or any other basis anticipated by a law or ratified international agreement." However,  the LPPD does not cover discrimination based on sexual orientation. Article 9 of the LPPD also covers sexual harassment, which states that “sexual harassment shall be unwanted behavior of sexual nature, manifested physically, verbally or in any other manner, aimed at or resulting in violation of the dignity of a person, especially when creating a hostile, intimidating, degrading or humiliating environment." Article 4 of the LPPD covers a wide scope on the prohibition on harrassments, which includes: (a) labour and labour relations; (b) education, science and sport; (c) social security, including the area of social protection, pension and disability insurance, health insurance and health protection; (d) judiciary and administration; (e) housing; (f) public information and media; (g) access to goods and services; (h) membership and activity in unions, political parties, citizens’ associations and foundations or other membership-based organizations; (i) culture, and (j) other areas determined by law. (English translation available from the ILO through the external link.)



Constitution of the Republic of Macedonia of 1991 (1991)

Gender discrimination

Article 9 of the Constitution provides that all citizens of the Republic of Macedonia are equal in their freedoms and rights, regardless of “sex, race, colour of skin, national and social origin, political and religious belief, property and social status”. Article 110 of the Constitution expressly prohibits discrimination among citizens on the ground of sex, race, religion or nation, social or political affiliation. (English translation available from the ILO through the external link.)



Constitution of the Republic of Indonesia (1945)

Gender discrimination

The Indonesia Constitution does not discuss gender or women specifically, but instead guarantees rights to “him/her.” The 1945 Constitution is the basis for the government of Indonesia and it carries the highest legal authority. Article 27 of the 1945 Constitution states that: “(i) all citizens shall have equal status accorded by law and the government, and are obliged to respect the law and government without exception; and (ii) each citizen shall be entitled to work and to have a reasonable standard of living.” Article 28I of the Constitution adopted in 1945, and amended in 2002, includes the following provisions: “The rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances.” Article 28B of the Constitution adopted in 1945, and amended in 2002, includes the following provisions: “Every child shall have the right to live, to grow and to develop, and shall have the right to protection from violence and discrimination.” Article 28G of the Constitution adopted in 1945, and amended in 2002, includes the following provisions: “Every person shall have the right to be free from torture or inhumane and degrading treatment, and shall have the right to obtain political asylum from another country.” (External link includes unofficial English translation.)



Constitution of Belize (2011)

Gender discrimination

Section 3 of the Constitution of Belize (the “Constitution”) provides that every person in Belize is “entitled to the fundamental rights and freedoms of the individual” regardless of sex.  Section 16 of the Constitution also prohibits any laws that are discriminatory or have discriminatory effect and defines “discriminatory” to include discrimination based on sex. 



Anti-Discrimination Act of 1992 (Northern Territory) (2018)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

The Anti-Discrimination Act prohibits discrimination in certain settings on the grounds of any designated attribute, including sex, sexuality, marital status, pregnancy, parenthood, and breastfeeding.  Unlike in other Australian jurisdictions, “gender identity” and “sex characteristics” are not included as designated attributes in the Northern Territory.  The settings in which discrimination based on a designated attribute is prohibited include: education, work, accommodation, provision of goods, services and facilities, clubs, and superannuation.  Discrimination includes any distinction, restriction, or preference made based on a designated attribute that has the effect of nullifying or impairing equality of opportunity, and harassment based on a designated attribute.  Certain exceptions from the prohibition of discrimination exist, including: certain religious circumstances; provision of rights or privileges connected to childbirth; and discrimination aimed at reducing disadvantage.  Alleged victims of prohibited discrimination can lodge a complaint against the discriminating person or entity, which will trigger a conciliation.  If the matter is not resolved through conciliation, the Northern Territory Anti-Discrimination Commissioner may assess the complaint.  If the Commissioner finds that the complaint is substantiated, the Northern Territory Civil and Administrative Tribunal can order that the discriminator pay compensation to the victim, discontinue the discriminating behavior, or do any other act specified by the Tribunal.  



Revised Family Code (2000)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The current family law in Ethiopia provides that there must be, inter alia, consent by both spouses to constitute a valid marriage (Article 6); respect and support between spouses (Article 49); equal rights in the management of the family (Article 50); fidelity owed by both husband and wife (Article 56). This is a substantial step forward in Ethiopian law.



Constitution of the Federal Democratic Republic of Ethiopia

Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Gender-based violence in general, Harmful traditional practices, International law

Article 9 of the FDRE Constitution provides that all international treaties ratified by Ethiopia are integral parts of the law of the land. Similarly, Article 13.2 provides that fundamental rights and freedoms shall be interpreted in a manner conforming to the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia. Ethiopia has ratified many of these treaties including ICCPR, ICESCR, and CEDAW. Article 35 of the FDRE Constitution pertains to the Rights of Women. The article provides for equal rights under the constitution, equal rights with men in marriage, entitlement to affirmative measures, protection from harmful traditional practices, the right to maternity pay, the right to consultation, property rights (including acquiring and controlling and transferring property), employment rights, and access to family planning education. It is worth noting that this article explicitly imposes an obligation and accountability on the state to protect women from violence at Article 35.4:  “The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs and practices that oppress or cause bodily or mental harm to women are prohibited.”



Social and Economic Development Policy Act (2006)

Abortion and reproductive health rights, Employment discrimination, Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape, Statutory rape or defilement

Section 7 (Gender Equity, Equality and Empowerment) provides for: (a) gender equality through gender policy aimed at the elimination of structural gender biases and increased participation in education; (b) strengthening the activities of Ministry of Gender Development and women’s rights NGOs; (c) adequate protection from violence through penal and civil sanctions; (d) protection of female children, notably from female genital mutilation, early marriage, and teenage pregnancy; (e) increasing women’s participation in labour force and policy and economic institutions; (f) elimination of legal and customary practices which are barriers to ownership of land, capital and other property; and (g) establishing reproductive health services.



HIV Control of the Disease and Related Issues (Amending Title 33) (2010)

Abortion and reproductive health rights, Employment discrimination, Gender discrimination, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement

HIV, Control of the Disease and Related Issues (Amending Title 33) (the “Law”), institutes various government initiatives and provides guidance in dealing with HIV-related issues specifically affecting women. For example, the Law provides that the Ministry of Health and Social Welfare and/or National AIDs Commission (the “Health Institutions”) must take into consideration differences in sex and gender when providing education about HIV. Additionally, the Law lists a number of key issues which the Health Institutions should address in their strategies and programs for protecting and fulfilling the human rights of women in the context of HIV. These include:

  1. The equality of women in public and domestic life (Section 18.9(i));
  2. Sexual and reproductive rights, including the concept of consent and a woman’s right to refuse sex and her right to request safe sex (Section 18.9(ii));
  3. A woman’s right to independently utilise sexual health services (Section 18.9(ii));
  4. Increasing educational, economic, employment and leadership opportunities for women (Section 18.9(iii));
  5. Strategies for reducing differences in formal and customary law which prejudice women’s rights (Section 18.9(v)); and
  6. The impact of harmful traditional practices on women (Section 18.9(vi)).

Furthermore, the Law directs the Ministry of Health and Social Welfare, the Ministry of Justice, and the Liberian National Police to implement educational programs for their personnel in relation to sexual assault perpetrated on women. These are designed to provide personnel working for these government agencies with a better understanding of sexual assault and protect the rights of sexual assault victims.



Offenses Against the Family, Chapter 16: Penal Law - Title 26 - Liberian Code of Laws Revised (1978)

Abortion and reproductive health rights, Gender discrimination, Harmful traditional practices

Under Section 16.1 of the Penal Law, bigamy and polygamy are illegal unless a legal defence is provided. Such defences include a defendant’s belief that his or her former spouse is dead. Under Section 16.3, abortion beyond the twenty-fourth week of pregnancy is illegal. An abortion is legal if it occurs only after a licenced physician determines there is a substantial risk that continuing the pregnancy would gravely impair the mother’s physical and/or mental health. An abortion may also be justified if the child would be born with grave physical or mental defects or if the pregnancy was the result of illegal intercourse such as rape. Additionally, the abortion must be sanctioned by two physicians who have certified in writing the reasons why the abortion is necessary. The Penal Law also prohibits a woman from carrying out an abortion herself by any means once beyond the twenty-fourth week of pregnancy.



Equal Rights of the Customary Marriage Law of 1998 (1998)

Domestic and intimate partner violence, Dowry-related violence, Forced and early marriage, Gender discrimination, Harmful traditional practices, Property and inheritance rights

The Equal Rights of the Customary Marriage Law of 1998 (the “Law”) repeals previous Liberian marriage laws and provides various rights and protections for women within the context of marriage. These include:

  1. Entitling a wife to one-third of her husband’s property (Section 2.3).
  2. Providing that a husband must respect his wife’s human rights (Section 2.5).
  3. Affirming that a wife’s property acquired before and during the marriage is exclusively hers; she can deal with this property in her own name as she sees fit without consent of her husband (Section 2.6(a)).
  4. Confirming that every woman has a right to marry a man of her choosing (Section 2.10).
  5. Entitling a wife to one-third of her husband’s property when her husband dies (Section 3.2).
  6. Entitling a widow to remain on the premises of her late husband (or to take another husband of her choice and vacate the late husband’s premises) (Section 3.3).
  7. Entitling a widow to administer her husband’s estate by making a petition to the probate court of their jurisdiction (Section 3.5).

The law also prohibits some of the common harmful practices towards wives, including: 1)  husband taking a dowry from his wife or his wife’s parents (Section 2.2); 2) arranging for a girl under the age of 16 to be given in marriage to a man (Section 2.9); 3) compelling a widow to marry a member of her late husband’s family (Section 3.4(a)).



Federal Act on Gender Equality (1996)

Employment discrimination, Gender discrimination, Sexual harassment

Article 1 of this act states that it is intended to promote equality between men and women.  Article 3 prohibits discrimination against employees based on sex.  Article 4 prohibits sexual harassment in the workplace.  Article 5 provides for relief, including injunctive relief and lost salary.  Article 10 protects against retaliation against complainants. 



Federal Constitution of the Swiss Confederation (1999)

Employment discrimination, Gender discrimination

Art. 8 of the Constitution provides that all people are equal and no person may be discriminated against because of gender.  The Constitution also states that men and women have equal rights and the law shall ensure their equality.  Art. 35 provides for protection of fundamental rights even in private relationships.



Lei Nº 11.108 (2005)

Abortion and reproductive health rights, Gender discrimination

On April 7, 2005, Law No. 11.108/2005 was published to amend existing Law No. 8.080/1990. It included a new chapter that mandated that all health services of the Unified Health System (“SUS”) must allow the presence of an accompanying party chosen by the parturient woman, throughout the entire labor, birth, and the immediate post-partum period.



Lei Nº 11.770 (2008)

Employment discrimination, Gender discrimination

On September 9, 2008, Law No. 11.770 was enacted to create a tax incentive program for private companies that offer an additional sixty (60) days of maternity leave on top of the mandatory 120 days set forth in Decree No. 5.452/1943. The incentive also applies for adoptions.



Resolução nº 175/2013 (2013)

Gender discrimination, LGBTIQ

On May 14, 2013, the National Justice Council issued a resolution stating that competent authorities are not allowed to refuse (a) to celebrate same-sex civil marriages nor (b) to convert same-sex common-law marriages (stable union) into civil marriages.  The National Justice Council is a public administrative body that aims to advance the work of the Brazilian judicial system. The resolution was issued after the Supreme Court declared in 2011 that it is unconstitutional to apply a different legal treatment to same-sex common-law marriages (stable union), from the one applied to heterosexual common-law marriages (stable union). 



On the Local Elections (No. 595-VIII) (2015)

Gender discrimination

The Local Election Act of Ukraine establishes quotas for female representation in the legislative bodies at local level elections, requiring that representation of persons of one sex in the electoral lists of candidates for members of local councils in multi-mandate constituencies should be at least 30% of the total number of candidates in the electoral roll.



On the Political Parties in Ukraine (No. 2365-III) (2001)

Gender discrimination

The Political Parties Act of Ukraine establishes quotas for female representation in the Ukrainian parliament, requiring that the size of the quota (i.e. the minimum level of representation of women and men in the electoral list of candidates from one political party) must be not less than 30% of the total number of candidates in the electoral list.



On Principles of Preventing and Combating Discrimination in Ukraine (No. 5207-VI) (2012)

Gender discrimination

The Anti-Discrimination Act of Ukraine (the “Act”) addresses discrimination in all areas of life, including public and political activities.  Under the Act, “discrimination” is defined to include situations where a person or group of persons suffer limitations in the recognition, implementation or use of rights and freedoms in any form due to reasons such as race, age, gender, etc.  The Act provides that all forms of discrimination are prohibited in Ukraine and all persons should have equal rights and freedoms as well as opportunities for their implementation and establishes civil, administrative and criminal liability for the violation of anti-discrimination legislation (including under the Act). The Act does not however provide for any specific penalties.



On the Amendments to the Criminal and Criminal Procedure Codes of Ukraine in order to implement the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (2017)

Domestic and intimate partner violence, Forced and early marriage, Forced sterilization, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

The Criminal and Criminal Procedural Codes of Ukraine were amended in December 2017 to adopt provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) adopted in 2011.  As a result of these amendments, forced marriage (i.e. forcing a person to marry or to continue being in a forced marriage, or to enter into a cohabitation without official registration of marriage, or to continue such cohabitation) is punishable by restraint of liberty for up to three years or imprisonment for the same period and domestic violence (i.e. deliberate systematic violence against a spouse or ex-spouse or other person with whom the perpetrator is in family or intimate relationship, leading to physical or psychological suffering, disorder of health, disability, emotional dependence) is punishable with public works for up to 240 hours or detention for up to six months, or restraint of liberty for up to 5 years or imprisonment for up to two years.  In addition, the amendments:

  • introduce new corpus delicti, such as “illegal abortion or sterilization” (i.e. performed by a person without medical education or without consent of the victim) which is punishable by imprisonment for up to 3 years;
  • establish punishment for rape of a spouse or ex-spouse or other person with whom the perpetrator is in a family or intimate relationship (imprisonment for up to 10 years); and
  • increase punishment for sexual violence to up to 15 years, if such acts resulted in serious consequences.


On Ensuring the Equal Rights and Opportunities for Women and Men (No. 2866-IV) (2005)

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

The Equal Opportunities Act of Ukraine (the “Act”) provides for the legal framework of men and women’s parity in all spheres of social life through providing legal support for equal rights and opportunities, removal of gender-based discrimination and prevention of misbalance between women’s and men’s opportunities in implementing the rights granted to each of them by the Constitution and other laws.  Pursuant to the Act, “equal rights” means absence of gender-based restrictions or privileges.  The Act provides that equal rights for men and women will be ensured in the election process, civil service, employment and career, social security, entrepreneurial activity and education, in each case, through the relevant government/regulatory bodies.  The Act prohibits gender-based violence (which is defined as “actions directed at persons through their sex, stereotyped widespread customs or traditions or actions that relate predominantly to persons of a determined sex and create physical, sexual, psychological or financial damage or suffering”) and sexual harassment (defined as "sexual actions of a verbal or physical nature, which may humiliate or insult the person who is dependent on the perpetrator due to work, official, financial or other reasons").  Violation of the Act can result in a limitation order being issued to temporarily restrict the rights of the offender and protect the rights of the victim, including prohibiting the victim on residing with the victim at their place of residence, approaching the victim up to a certain distance and limitations on telephone calls or other communication with the victim.



Constitution of Ukraine (Law of Ukraine No. 254к/96-ВР) (1996)

Employment discrimination, Gender discrimination

Article 24 of Ukraine’s Constitution provides that there can be no privileges or restrictions based on sex or other grounds, and guarantees that the equality of rights for women and men is ensured by providing equal opportunities to each in socio-political and cultural activities, access to education, work and remuneration, special measures on labor protection and health of women, pension privileges and creating conditions enabling women to combine work and maternity.



Civil Code of Iran (Inheritance) (1969)

Gender discrimination, Harmful traditional practices, Property and inheritance rights

With regards to inheritance law (Arts. 906-915), a widow inherits less than a widower in Iran.  A widow inherits one-quarter of her deceased husband’s property if the deceased husband left no children behind, and one-eighth if he did leave children behind.  In contrast, a surviving husband inherits half of his deceased wife’s property if she left no children behind and one-quarter if she did leave children behind (Art. 913).  Consistent with this pattern, under Iranian Civil Code Article 907, sons inherit twice as much as daughters when a parent is deceased.



Civil Code of Iran (Citizenship) (1969)

Gender discrimination, Property and inheritance rights

Article 976 states that children born to Iranian fathers are considered Iranian subjects. No clause exists extending the same rights to children born of Iranian mothers where the child’s father is not Iranian. This provision demonstrates that Iranian women cannot pass on their Iranian nationality to their children. 



Civil Code of Iran (Divorce and Dissolution of Marriage) (1969)

Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices

The Iranian Civil Code also reflects deep gender inequalities in its divorce law (Arts. 1120-1157).  With only a few exceptions, a husband can divorce his wife “whenever he wishes to do so” (Art. 1133).  However, women may only seek divorce by making a request before an Islamic judge and in only a limited number of circumstances in which the husband has created “difficult and undesirable conditions” in the marriage (Art. 1130).  If this criteria has been satisfied, the Islamic judge can compel the husband to divorce his wife. 



Civil Code of Iran (Marital Duties) (1969)

Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, Property and inheritance rights, Sexual violence and rape

According to Iranian law, the husband is the exclusive holder of the position of “head of the family”  (Art. 1105).  As such, the husband provides his wife with the cost of maintenance (Art. 1106), “which includes dwelling, clothing, food, furniture, and provision of a servant if the wife is accustomed to have servant or if she needs one because of illness” (Art. 1107) Article 1108 creates a duty on the part of women to satisfy the sexual needs of their husbands at all times.  This is the tamkin (submission) requirement of Sharia law.  If a wife refuses to fulfill her duties, she may be barred from receiving maintenance payments. The husband determines his wife’s place of residence and thus controls her freedom of movement (Art. 1114).  If the dwelling of the wife and husband in the same house involves the risk of bodily or financial injury or that to the dignity of the wife, she can choose a separate dwelling.  If the alleged risk is proved, the court will not order her to return to the house of the husband and, so long as she is authorized not to return to the house, her cost of maintenance will be on the charge of her husband (Article 1115). In addition, the husband may prevent his wife from exercising a certain profession if he deems it “incompatible with the family interests or the dignity of himself or his wife” (Art. 1117).



The Islamic Penal Code of Iran, Book 5 (2013)

Abortion and reproductive health rights, Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices

Articles 623-624 of Book Five of the Islamic Penal Code of Iran ban abortion and proscribe prison sentences for, respectively, "anyone" and doctors, midwives, and pharmacists. Article 630 of the Iranian Penal Code allows a man who witnesses his wife in the act of having sexual intercourse with another man (zina) to kill both of them if he is certain that his wife is a willing participant. If the husband knows that is wife was the subject of coercion, he is justified in murdering only the other man. Under Article 638 of the Iranian Penal Code, women who appear in public without the Islamic hijab may be sentenced to ten days to two months in prison or fined fifty thousand (USD $1.50) or five hundred thousand Rials (USD $15.00). (Full Persian version: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)



The Islamic Penal Code of Iran, Books 1 & 2 (2013)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Harmful traditional practices, LGBTIQ

Article 147 of the Islamic Penal Code specifies that the age of maturity triggering criminal responsibility is 15 Islamic lunar calendar years for boys, but only nine Islamic lunar calendar years for girls. This signifies that young girls can be charged as criminally responsible adults in Iran before they reach the age of puberty. Articles 237-239 forbid same-sex kissing and touching, which will be punished by 31-74 lashes. Female genital touching (musaheqeh) is punished by 100 lashes. Article 225 mandates the death penalty for adultery (zina), which international commentators have noted is disproportionately applied to women (e.g., UN Special Rapporteur for Violence Against Women report: http://www.ohchr.org/Documents/Issues/Women/A-68-340.pdf). Article 199 describes the number and gender of witnesses needed to prove various crimes; no crimes may be proven with female witnesses alone and any female witness requires corroboration of a man and another woman. (Full Persian version of the Penal Code available at: http://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=103202)



Royal Decree of 25 April 2014 (2014)

Employment discrimination, Gender discrimination

Pursuant to the Pay Gap Law of 22 April 2012, a mediator may be appointed to generate an action plan for gender neutrality or to intercede with employees who feel victimized by unfair treatment at work. This Royal Decree of 25 April 2014 determines the role and the qualifications of the mediator, enumerates the deontological rules s/he must respect, and describes the mediation procedures. 



Pay Gap Law of 22 April 2012 (2012)

Employment discrimination, Gender discrimination

The Pay Gap Law of 22 April 2012 seeks to reduce the wage gap between men and women through various measures. For example, the social balance sheet has to be submitted by certain enterprises in their financial statements and must be broken down according to the gender of the employees. Functional classifications of employees must be gender-neutral. In addition, every enterprise employing at least 50 people has to prepare an analysis every two years in order to determine whether or not the enterprise applies a gender neutral remuneration policy. Such enterprises can also, at the request of the works council or of the Committee on Prevention and Protection at Work, appoint a mediator to generate an action plan for gender neutrality or to intercede with employees who feel victimized because of unfair treatment. A Royal Decree of 25 April 2014 determines the role and the required qualifications of this mediator as well as the deontological rules he/she needs to respect, and describes the mediation procedure.


Royal Decree of 11 January 2009 (2009)

Employment discrimination, Gender discrimination, LGBTIQ

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


Law of 16 December 2002 Creating the Institute for Equality of Men and Women (2002)

Gender discrimination

Interest groups of the Institute for Equality of Men and Women, created by the Law of 16 December 2002 to monitor gender equality and to fight any form of gender-based discrimination, may bring legal action in cases of gender discrimination. The Institute is responsible for (i) guaranteeing and promoting equality between men and women, (ii) combating all forms of discrimination or inequality based on sex, and (iii) creating and implementing a proper legal framework of appropriate structures, instruments, and measures. More information on the Institute and the rights it protects is available on its website (available in English, Français, Nederlands, and Deutsch).


Gender Law of 10 May 2007 (2007)

Abortion and reproductive health rights, Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, International law, LGBTIQ, Property and inheritance rights, Sexual harassment

The Gender Law of 10 May 2007 combats discrimination between women and men (thereby implementing European Union legislation) and prohibits every form of discrimination based on gender, change of gender, gender identity, gender expression, pregnancy, childbirth and motherhood. Direct and indirect discrimination, giving orders to discriminate, intimidation and sexual intimidation are all explicitly prohibited. Discrimination is prohibited with regard to access to goods and services, social security, social benefits, membership of professional organizations, and employment relations and conditions. Differences (in terms of access to certain goods or services, or employment conditions) are only allowed if it is objectively justified by a legitimate aim and if the restrictions are appropriate and necessary to achieve this aim. Differences are also allowed on a temporary basis in the context of positive action to prevent or compensate for gender-related disadvantages. Victims of discrimination can submit a reasoned complaint or take legal action. If the plaintiff has produced facts which indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no gender-based discrimination.


Constitution of Belgium (2014)

Gender discrimination

Article 10 of the Constitution lays down the basic principle of equality and explicitly guarantees equality between men and women. Article 11 provides the legal basis for the adoption of legislation ensuring that there is no discrimination, while Article 11bis ensures equal access to elected mandates and public mandates.


Act on Securing, Etc., of Equal Opportunity between Men and Women in Employment (Act No. 113 of 1972) (2017)

Gender discrimination, Sexual harassment

The Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment (‘the Act’) aims to promote equal opportunities and treatment of men and women in the workplace. The Act falls under Article 1 of the Constitution’s mandate for the government to ensure equality under law and promote measures to ensure the health of working women during pregnancy and after childbirth.  Japan enacted the Act in 1985 upon the United Nation’s ratification of Convention on the Elimination of all forms of Discrimination against Women.  The Act prohibits employment discrimination based on sex at each stage of recruitment, assignment, and promotion. It also prohibits discriminatory treatment based on marriage status, pregnancy and childbirth.  In addition, an Amendment to the Act in 2017 obligates employers to take steps to prevent harassment based on a protected status.  To ensure its effectiveness, the Act requires that employer violations of the statute be publicly announced, and a fine imposed on employers who violate the reporting obligation.  



Constitution of Japan (1945)

Gender discrimination

Under Article 14 of the Japanese Constitution, “all citizens of Japan are equal under the law, and shall not be discriminated against in political, economic or social relations on the basis of sex.”  Article 24 of the Constitution states that marriage can only be formed through the mutual consent of both sexes, and it must be maintained through mutual cooperation of husband and wife. Furthermore, Article 24 provides that “husband and wife have equal rights” under the law.  Based Article 14 and Article 24, the following laws were enacted: the Basic Act for a Gender Equal Society requires the state and local public entities to take steps towards the formation of a gender-equal society; the Act on Securing of Equal Opportunity and Treatment Between Men and Women in Employment prohibits employers from discriminating based on gender; and the Act on the Prevention of Spousal Violence and the Protection of Victims etc. and the Stalker Control Law protect women from gender-based violence.



Constitution of Japan (1945)

Gender discrimination

Under Article 14 of the Japanese Constitution, “all citizens of Japan are equal under the law, and shall not be discriminated against in political, economic or social relations on the basis of sex.”  Article 24 of the Constitution states that marriage can only be formed through the mutual consent of both sexes, and it must be maintained through mutual cooperation of husband and wife. Furthermore, Article 24 provides that “husband and wife have equal rights” under the law.  Based Article 14 and Article 24, the following laws were enacted: the Basic Act for a Gender Equal Society requires the state and local public entities to take steps towards the formation of a gender-equal society; the Act on Securing of Equal Opportunity and Treatment Between Men and Women in Employment prohibits employers from discriminating based on gender; and the Act on the Prevention of Spousal Violence and the Protection of Victims etc. and the Stalker Control Law protect women from gender-based violence.



Rome Statute of the International Criminal Court, Article 7(1)(h) International Criminal Court (1998)

Gender discrimination

Article 7(1)(h).  Persecution on the basis of gender. Under the Rome Statute, persecution on the basis of gender is specifically included as a crime against humanity.  This means that the ICC has jurisdiction over crimes involving the intentional and severe deprivation of fundamental rights contrary to international law against a group targeted on the basis of gender.  Although the ICC has not yet brought a prosecution in respect of this crime, there are crimes under preliminary examination.  For example, the Prosecutor has found a reasonable basis to believe that gender-based persecution has been committed in Nigeria by Boko Haram.  The Prosecutor’s Office has identified that, by reason of their religion or for attending school, Boko Haram has carried out sexual violence against women and girls, including abductions, sexual slavery, and forced marriages.  This offence is significant in being the only sexual and gender-based crime that requires discriminatory intent, as the Prosecutor must prove the crime was based on gender grounds.  The crime is also an important recognition of the need to combat impunity for systematic persecutions on the basis of gender.



Rome Statute of the International Criminal Court International Criminal Court (1998)

Femicide, Forced and early marriage, Forced sterilization, Gender discrimination, Gender violence in conflict, Sexual violence and rape, Trafficking in persons

The intention behind the Rome Statute of 2002 (“Rome Statute” or “Statute”) in establishing the International Criminal Court (“ICC”) is to prosecute the most serious crimes of international concern and to end impunity.  The Rome Statute is significant in being the first international criminal law instrument that recognises forms of sexual violence, such as rape, sexual slavery, enforced prostitution, and enforced sterilization, as distinct war crimes.  This legal instrument is also novel in prescribing gender-based crimes as the basis of war crimes or crimes against humanity committed during armed conflicts.  In particular, the Statute gives the ICC jurisdiction over gender-based crimes if they constitute acts of genocide.  In this case the crimes, such as rape, can be an integral part of the destruction inflicted upon the targeted groups and may be charged as genocide.  The Prosecutor must further apply and interpret the Statute in line with internationally recognised human rights, including women’s human rights and gender equality.  The States Parties should also consider the need to appoint judges with legal expertise on violence against women or children.



Constitution of the Democratic Republic of the Congo (Article 14 - Law n°15/013 of August 1st, 2015) (2015)

Gender discrimination

The DRC Constitution asserts the country’s commitment to gender equality under the law.  The preamble references the Universal Declaration of Human Rights and commitment to conventions pertaining to the rights of women, particularly toward gender equality in domestic and international institutions.  Article 14 gives legal effect to the commitment asserted in the preamble, stipulating that public authorities shall ensure elimination of discrimination against women and promote women’s rights.  More specifically, Article 14 requires authorities to take appropriate measures to ensure participation of women in the development of the nation and to take steps to combat all forms of violence against women in their public and private lives, and guarantees implementation of gender equality and fair representation at national, provincial and local government institutions.  The Law sets forth the application procedures of these rights.  Subsequently, Law n°15/013 of August 1st, 2015 was passed to establish specific procedures to implement Article 14 (weblink to full Constitution, pdf to Article 14 implementation law).



Constitution of the Democratic Republic of the Congo (Article 14 - Law n°15/013 of August 1st, 2015)

Gender discrimination

The DRC Constitution asserts the country’s commitment to gender equality under the law.  The preamble references the Universal Declaration of Human Rights and commitment to conventions pertaining to the rights of women, particularly toward gender equality in domestic and international institutions.  Article 14 gives legal effect to the commitment asserted in the preamble, stipulating that public authorities shall ensure elimination of discrimination against women and promote women’s rights.  More specifically, Article 14 requires authorities to take appropriate measures to ensure participation of women in the development of the nation and to take steps to combat all forms of violence against women in their public and private lives, and guarantees implementation of gender equality and fair representation at national, provincial and local government institutions.  The Law sets forth the application procedures of these rights.  Subsequently, Law n°15/013 of August 1st, 2015 was passed to establish specific procedures to implement Article 14 (link to full Constitution, pdf to Article 14 implementation law).



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

Gender discrimination, Property and inheritance rights

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

Original Act (1906)



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

Gender discrimination

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

2010 Amendments

2015 Amendments



Customary Marriage (Registration) Act of 1973 (1973)

Divorce and dissolution of marriage, Forced and early marriage, Gender discrimination, Harmful traditional practices

The Customary Marriage Act (CMA) sets parameters for acceptable customary marriages and requirements for registration and dissolution.  Customary marriages are prohibited if the female party is younger than 16 years old or the male party is younger than 18 years old, either party is of unsound mind, they are too closely related, the marriage is otherwise prohibited by one of the parties’ customs, or one of the parties is still in an existing monogamous marriage.  Subsequent monogamous or Muslim marriages will not be recognized and are void if there was a pre-existing customary marriage.



Anti-Pornography Act of 2014 (2014)

Gender discrimination, Statutory rape or defilement

The Anti-Pornography Act (“APA”) bans creation, publication, distribution, and abetting of pornography and child pornography.  It also creates a nine-member council to handle pornography issues, including public education, maintaining a registry of offenders, and destruction of seized materials.  Human rights groups have expressed concerns that the language defining pornography as “any representation through publication, exhibition, cinematography, indecent show, information technology or by whatever means, of a person engaged in real or stimulated [sic] explicit sexual activities or any representation of the sexual parts of a person for primarily sexual excitement” is overly broad and could lead to confusion.  For example, some organizations have nicknamed it Uganda’s “mini-skirt ban” because “any representation of the sexual parts of a person for primarily sexual excitement” could be interpreted as applicable to revealing clothing.



Domestic Case Law

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.



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.



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.



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.



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.



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.



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.



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.



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.

This decision disproves the previous position in AZAAR v. Minister for Immigration and Citizenship, Federal Court 2009.



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

The plaintiff-appellant 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 the defendant. 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.



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.



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

The plaintiff, 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.



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.



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

Gender discrimination

Appellant, a pregnant woman, challenged the circuit court’s order compelling her to submit to detention in a hospital for enforcement of bed rest, administration of IV medications, and an eventual Cesarean section. The trial court had found that Burton failed to follow the doctor’s instructions, which created a high-risk pregnancy that posed a “substantial and unacceptable” risk to the fetus. The appellate court reversed, finding that the trial court had applied the wrong legal test, which came from a case in which parents refused chemotherapy for their 8-month-old infant. The court first explained, citing Roe v. Wade, that a state’s compelling interest in the “potentiality of life” in an unborn fetus begins when the fetus becomes viable; only then may the state weigh its compelling interest against the mother’s fundamental constitutional rights. The court explained that the “test to overcome a woman’s right to refuse medical intervention in her pregnancy is whether the state’s compelling state interest is sufficient to override the pregnant woman’s constitutional right to the control of her person, including her right to refuse medical treatment. If such a compelling state interest is established, the state must then show that the means are narrowly tailored.”  



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

Gender discrimination

Appellant, a pregnant woman, challenged the circuit court’s order compelling her to submit to detention in a hospital for enforcement of bed rest, administration of IV medications, and an eventual Cesarean section. The trial court had found that Burton failed to follow the doctor’s instructions, which created a high-risk pregnancy that posed a “substantial and unacceptable” risk to the fetus. The appellate court reversed, finding that the trial court had applied the wrong legal test, which came from a case in which parents refused chemotherapy for their 8-month-old infant. The court first explained, citing Roe v. Wade, that a state’s compelling interest in the “potentiality of life” in an unborn fetus begins when the fetus becomes viable; only then may the state weigh its compelling interest against the mother’s fundamental constitutional rights. The court explained that the “test to overcome a woman’s right to refuse medical intervention in her pregnancy is whether the state’s compelling state interest is sufficient to override the pregnant woman’s constitutional right to the control of her person, including her right to refuse medical treatment. If such a compelling state interest is established, the state must then show that the means are narrowly tailored.”  



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.   



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.   



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.



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.



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.



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 Chen, another girl at Guangze senior high school, Fujian Province, for insulting her. Chen hid and so their plan for revenge was unsuccessful. Later that day, Lin asked someone else to take Chen to a quiet neighborhood. Lin and her friend slapped Chen’s face, broke her nose, pulled her hair, and made Chen take off all her clothes. Chen was too frightened to say no and took off all her clothes. Lin and her friend took pictures of the naked Chen and shared the photos. Guangzhe District Court found that Lin and her friends assaulted the victim Chen. 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, Article72, 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.



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.



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.



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.



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.



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.



Unknown v. Austria Asylum Court (2011)

Gender discrimination, LGBTIQ

The applicant travelled to Austria and underwent gender reassignment operations, was treated with hormones, and then lived as a woman in Austria. When the applicant attempted to extend her Egyptian passport at the embassy or to have it changed to female, she was informed that she must travel to Egypt to do so. Fearing persecution in Egypt, the applicant applied for asylum. The Asylum Court eventually granted the application, finding that transsexuality is not accepted in Egypt, that the applicant would be subject to attacks on her person without police or official protection, and that there was no legal option in Egypt for the applicant to change her documents and live officially with a different gender.



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.



Guo Jing v. East Cooking Vocational Skills Training School West Lake District Court of Hangzhou (2014)

Gender discrimination, Employment 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”.


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.


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.



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.



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.



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.



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.



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.



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.



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

Sexual discrimination – employment. Florence B, an employee of IBM France SA, 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 manuscripts supporting which would be required to show that Florence B’s lack of advancement was due to matters other than those relating to sexual discrimination. Florence B was therefore awarded damages to the amount of 30,000 euros in order to compensate her for the lack of career advancement as well as awarded an order for her promotion to a new position of “coefficient 114”. The costs of the case incurred were held to be dealt with in accordance with Article 700 of the New Civil Code Procedure.



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.



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