UNDP-OHCHR TOOLKIT NHRIs may address thematic issues related to particular categories of vulnerable persons, which may involve issues where the rights at stake are highly contested: 11 Indigenous peoples 11 Lesbian, gay, bisexual and transgendered persons 11 Migrant workers 11 Persons with disabilities19 11 Persons with HIV/AIDs 11 National or ethnic, religious or linguistic minorities 11 Refugees and internally displaced persons 11 Women 20 The protection of these and other groups depends in part on substantive equality. Formal equality, sometimes called de jure equality, means that all people are treated the same way, say, men and women; or that persons with disabilities should be treated the same as other people, and so on. For example, a rule may allow an employer to hire someone new if the job-holder leaves her job for some time due to pregnancy: this is “formally equal” because it treats everyone the same way. But, it would clearly discriminate against women if it failed to provide maternity protection and return-to-work guarantees. Formal equality will rarely be enough to ensure equal rights – to do this, more is needed: substantive equality. Substantive equality is concerned with the effects of laws, policies and practices. In practical terms, this means that just being neutral is not enough. For example, States parties should take into account existing economic, social and cultural inequalities experienced by specific groups. Gender-neutral laws and policies can perpetuate sex inequality because they do not “take into account the economic and social disadvantage of women; they may therefore simply maintain the status quo. [Formal equality] does not, by itself, provide [real] equality. […]”. Whether the measures taken to protect rights are adequate must always be assessed against the background of women’s actual conditions, and evaluated in the light of the effects of policies, laws and practices on those conditions.”21 This section looks in more detail at how equality can be used as an approach for NHRIs to fulfil responsibilities for three specific groups: (1) women, (2) persons with disabilities, and (3) internally displaced persons and refugees. This selection does not represent all specific groups, nor does it suggest these groups’ experiences of discrimination are identical or transferable: it does however illustrate basic concerns and approaches that NHRIs may use to assist these groups in their efforts to ensure that the rights of these groups are respected. It should also be noted that there are many individuals at the intersections of these three groups whose experiences are unique, and that the impact of compounded negative effects of discrimination cannot be overlooked. 3.7.1.1 Women’s Human Rights There is a substantial and growing body of State obligations, laws and norms related to the equality rights of women and girl children.22 Although the main legal sources of these rights are the ICESCR, and CEDAW, there are other instruments, including the ICCPR, which contains a basic equality guarantee in Article 26 which states that “all persons are equal before the law and entitled without any discrimination to the equal protection of law”, the Convention on the Rights of the Child (CRC) and a number of labour instruments from the International Labour Organization which contain rights affecting women and girl children. CEDAW’s article I states that the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. In 2002, the Montreal Principles on Women’s Economic, Social and Cultural Rights (“Montreal Principles”) stressed the responsibility of NHRIs to support strategies, plans and policies specifically designed to guarantee Convention on the Rights of Persons with Disabilities. For a discussion of the role played by NHRIs in this convention, see Stein and Lord, “The United Nations Convention on The Rights Of Persons With Disabilities as a Vehicle for Social Transformation” http://www.nhri.net/2008/0805_libro_discapacidad.pdf. Accessed November 11, 2008. 19 CEDAW. See General Recommendation No. 6 (seventh session, 1988). http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom6 20 Adapted from para. 9 of the Montreal Principles. 21 See generally, UN Division for the Advancement of Women, “Promoting women’s enjoyment of their economic and social rights”, Report of the Expert Group Meeting, Abo/Turku, Finland, 1-4 December 1997, UN Doc. EGM/WESR/1997/Report, para. 18; S. Day and G. Brodsky, ‘Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to Poverty’ Canadian Journal of Women and the Law, Vol. 14, No. 1 (2002), pp185-220; L. Farha, ‘Is There a Woman in the House? Re/conceiving the Human Right to Housing’, Canadian Journal of Women and the Law, Vol. 14, No. 1 (2002), pp. 118 - 136; K. Frostell and M. Scheinin, ‘Women’ in A. Eide, C. Krause, A. Rosas (eds.), Economic, social and cultural rights: a textbook, (Dordrecht: Martinus Nijhoff, 2001). 22 44