UN Working Group on the issue of discrimination against women in law and in practice finalizes country mission to Chile

SANTIAGO DE CHILE (9 September 2014) – At the end of a 9-day mission to Chile, in which the Working Group’s delegation, comprised of Frances Raday and Alda Facio, visited Santiago, the region of Valparaíso, Viña del Mar and Arica, Alda Facio delivered the following statement:

“We want to express our sincere appreciation to the Government of Chile for having invited us to conduct this country visit. We are grateful to all our interlocutors, including the President of the Republic and the President of the Senate, State officials at the national and local levels, representatives of civil society organisations and representatives of United Nations agencies. We would like also to thank the various women’s associations who shared their experiences with us.

Our visit in Chile has taken place at a turning point as regards women’s human rights. The Government has shared with us several policy proposals that demonstrate a strong political will to achieve gender equality and the protection and promotion of women’s human rights.

In the Presidential Message of 21 May 2014, a number of far reaching reforms were announced including constitutional reform, reform of the binomial electoral system, gender quotas for political party candidates, tax reform, implementation measures for equal pay, the end of profit in education; extending the law on violence against women. Equality in marital property rights and decriminalisation of abortion in cases of therapeutic abortion, non-viable foetus and rape are also being considered by the Government.

We are cognisant of the fact that these policies follow a series of legislative measures for equality and women’s rights, including laws on domestic violence, femicide, contraception, anti-discrimination, equal pay and divorce. There have been since 1994 Equal Opportunity Plans for Women and Men. A program for provision of free child care services was successfully initiated and is to be extended. Although these laws and policies have provided some legal basis for the protection of women’s right to equality, they are far from complete and many of them have not been implemented effectively.

Numerous interlocutors have concurred that Chilean society is highly conservative. Patriarchal social attitudes, reinforced by traditionalist religious values, have had considerable impact on the formulation of policies and laws.

We were pleased to learn that the Government has proposed to strengthen the gender equality institutional framework by establishing the Ministry for Women and Gender Equity to replace the National Service for Women (SERNAM). We regret however that the term “equity” was chosen instead of “equality”. The state’s obligation to respect, protect and fulfil women’s right to equality and to prohibit discrimination against women on grounds of sex, is what is required under the ICCPR, ICESCR and CEDAW. A promise of equity does not suffice to guarantee the right to equality and the prohibition of discrimination.

The proposal to introduce gender quotas of 60/40% for parliamentary candidates is a highly necessary measure. The Working Group in its report to the HRC on women’s public and political life identified quotas as a good practice in many regions, which are essential in order to secure equal representation for women in political decision-making bodies at both the national and local levels. Women’s participation in political life is at present very low in Chile: despite having a woman Head of State and a woman President of the Senate, women’s representation in the legislative branch, with 15.83% for the Chamber of Deputies and 15.79% for the Senate, is well below the international and regional averages. At the local level, only 12.5% of the mayors (Alcaldes) were women in 2012.

Women’s labour force participation (47,7% in 2013) is low relative to averages in the region. The plans to increase the number of child care facilities is therefore an important measure in order to allow parents – and usually it is mothers who have the primary burden of care - to work in the labour market and generate income. Prevention of discrimination in the workplace is regulated under the Anti-Discrimination Act however, there does not appear to be any specific and systematic enforcement of equal employment opportunity. Equality in wages has not resulted in a reduction of the wage gap and, indeed the wage gap persists and is assessed at 30% with a higher gap in jobs which require higher education. The Working Group points out that the equal pay provision does not include equal pay for work of equal value although the state is obliged by both CEDAW and by the ILO Conventions to guarantee not only equal pay for the same work but also equal pay for work of equal value. This is in order to prevent a wage gap resulting from occupational sex segregation. Furthermore, there appears to be inadequate enforcement, with a low number of labour inspectors and a failure of the courts to provide effective remedies.

The impact of women’s low labour force participation and lower wages results in greater old age poverty for women. The solidarity pensions introduced in the framework of the social security reform of 2008 go only part of the way to relieving the poverty resulting from the inadequacy of women’s occupational pension entitlements, giving about a third of the minimum wage to the lowest quintile of the population.

Despite Chile’s significant socio-economic development, ranked by the World Bank as middle income, income inequality and unequal wealth distribution remain one of the country’s major problems. This inequality severely affects women in particular. Although Chile ranks 41 on the Human Development Index, it ranks 66 on the Gender Inequality Index. The Working Group was made very aware of the phenomenon of social and economic exclusion in its visits to Arica and to the settlements in the region of Viña del Mar. Despite the efforts towards social protection, including targeted social allowances and assistance mechanisms, the social protection system is inadequate. This has a disproportionate impact in particular for single mothers (constituting about 40% of households), women working in the informal sector and unemployed women. We are particularly concerned about the exacerbated social exclusion of disadvantaged groups of women, such as indigenous, migrant, rural and disabled women. Indigenous women in particular shared their distress regarding their feeling of invisibility and powerlessness in advancing their human rights as individuals and as members of their community. We encourage the Government of Chile to include indigenous women in all consultations with indigenous communities and to reflect their views, interests and needs in all proposals. The right of indigenous women to equality must be guaranteed in all future constitutional arrangements.

The Working Group was deeply impressed by the resilience of women from severely disadvantaged groups who had set up associations for securing livelihoods, for production in areas such as construction, recycling, crafts, marketing, education and assertiveness training. Associations of domestic workers are seeking recognition of their employment rights and coordination of policy by the Ministries involved in the case of migrant domestic workers.

The associations of women could not access State funding or bank credit for their activities because of restrictions based on individual annual income or working capital requirements. In addition, married women require their husbands consent to obtain credit where the discriminatory matrimonial property regime applies under the Civil Code. We were told that there are innovative proposals for the State bank to give women access to financing and it is to be hoped that appropriate frameworks be established to support women’s economic and social initiatives.

With regard to health services, though the official information we received indicated the availability of preventive medical screening, we heard from women who did not have the means to pay for private care, that preventive check-ups are frequently not available The deficiencies of the health system have consistently been raised as a major issue during our mission and women have complained that they are not able to see a doctor for diagnosis or care without delays of months and may be unable to see a specialist for conditions which require specialist attention. Furthermore, although the Law on Information, Orientation and Services Related to the Regulation of Fertility guarantees all forms of contraception, there are reports of unequal access to contraception and denial of emergency contraception in a number of municipalities.

All interlocutors expressed very grave concern regarding the high number of teenage pregnancies which endanger the health of these very young mothers and interrupt their education. It has been reported to us that the births to teenage mothers place an economic and care burden on the girls’ families, while most of the fathers take no responsibility for the child. The responses to this problem have been largely palliative and have not been effective in reducing the incidence of teenage pregnancies. Professionals and community leaders, who raised these issues during our visit, are of the opinion that it is essential to include sex education in the core curriculum at primary school level from a very young age. Some also called for the decriminalisation of abortion for these girls.

Regarding the current legislation on abortion, we share the concerns of the CEDAW and the Human Rights Committees as well as the recommendations formulated in the framework of the UPR of Chile and encourage decriminalisation of abortion. We support in this regard the bill recently submitted to the Congress which would allow for abortion under three circumstances: danger to the woman’s life, rape and non-viability of the foetus. In this regard, we would also recommend the decriminalisation of abortion for danger to physical or mental health and for girls under 18, as both a physiological and mental health issue. According to statistics from the Health Ministry, 30,860 cases of illegal abortion were reported in 2011. Some research assessments place it at 60,000/70,000 cases per year.

In the past 20 years, Chile has developed a series of legislative and programmatic initiatives to address the issue of violence against women but the prevalence of the phenomenon is still alarming: one out of three women reports intimate partner violence amounting to 2,804,056 women. In 2013, only 30% of women victims filed complaints and only 8,78% of these resulted in convictions. Numerous interlocutors also denounced the low sentences imposed for these crimes. The low level of reporting and the prevailing impunity hamper an efficient response from the State to this phenomenon
Of additional concern are the reports of sexual violence and harassment of human rights defenders by carabineros (police officers) in the context of social protests. There is a culture of impunity for these offences as a result of the failure to prosecute, transfer jurisdiction to military tribunals and lack of transparency. The Working Group reiterated the concerns expressed by many interlocutors that these cases should be adjudicated in civil courts.

We are also concerned about the alleged violations of the rights of lesbian, bisexual and transsexual persons in Chile suffering from discrimination, harassment and violence in the public and private sphere and for whom no appropriate State response has been developed. We encourage in this regard the Government programme for improvement of implementation measures for the Anti-discrimination Law and the introduction of a law on gender identity.

As regards access to justice, the courts do not provide a realistic recourse for women on issues of equality. Obtaining effective redress in the courts requires legal representation which is lengthy and costly. Legal aid is available only to those of very low incomes and it was reported to us that civil society organisations do not have the resources to litigate. It has been reported to us that a large number of women victims of torture and sexual violence during the dictatorship have not had the resources to bring evidence to the tribunals.The NHRI can only take legal action before the courts in cases of genocide, crimes against humanity, torture, forced disappearance or trafficking in persons. It is not allowed to file amicus briefs in courts. Furthermore, the courts are not known for demonstrating gender sensitivity. Indeed, the Inter-American Court, in the Atala case called for gender- sensitive training for judges. We regretted to learn that the Supreme Court does not regard the decisions of the Inter-American Court or International Human Rights Law as legally binding.

We also regretted to learn that the core curriculum of the judicial academy does not include courses on women’s human rights and gender equality and that only limited and sporadic training is provided by the Ministry of Justice.

Chile has engaged positively with international human rights mechanisms such as the United Nations Treaty Bodies, the Universal Periodic Review and the Special Procedures. It ratified CEDAW in 1989, the Inter American Convention for the Prevention, Punishment and Eradication of violence against women (Belem do Pará, 1994) and committed to the 1995 Beijing Declaration and Platform for Action and the UN Millennium Development Goals. Chile voted against the HRC Resolution on the Protection of the Family, which fails to protect women’s right to equality within the family and does not recognise family diversity. Finally, the Working Group welcomes the Government’s intention to ratify the CEDAW OP and the ILO Convention on Domestic Workers and recommends that its prompt ratification. Chile is at a moment of opportunity in view of the political will to eliminate discrimination and empower women through a profound cultural transformation based on effective equality legislation and implementation. After spending only 9 short days in this country, we are optimistic that Chilean society will welcome this needed cultural transformation based on its deep rooted aspiration for democracy.

In conclusion:

The Working Group considers that Chile is at a historic moment in which it has the political will and the economic potential to make a transformative change in women’s lives, moving forward from a conservative and patriarchal society to one in which women have equal political, economic and social rights and opportunities. Adoption of the proposed legislative reform program of the government is an essential precondition to achieve this change.

Furthermore, this change must be disseminated not only through legislation but also through the education system, the media and social networks.

As part of the reform program and going beyond the measures communicated to the Working Group, we recommend that the constitutional reform clearly establish the primacy of international human rights law in the legal system; the quotas established for political participation should be at the local as well as the national level and should also be adopted in public and private sector corporate governance; the registration of women’s productive associations as cooperatives with access to credit should be facilitated; an educational core syllabus must be adopted in primary schools on women’s right to equality, on the equal responsibility of women and men in the upbringing of children, on prohibition of all forms of violence against women and the undesirability of teenage pregnancy; decriminalisation of abortion should be applied to girls under the age of 18; a specific law to guarantee equal employment opportunity should be adopted; and the equal pay law be amended to include equal pay for work of equal value.

We strongly recommend that the issue of implementation of laws be carefully addressed. This requires reform of the framework for access to justice; extension of legal aid; and gender sensitivity training of law enforcement personnel and judges. It also requires gender budgeting and monitoring of systems which have been established.

Our findings and recommendations will be developed in a comprehensive way in the report that we will present to the United Nations Human Rights Council in June 2015.”

ENDS

The UN Working Group on the issue of discrimination against women in law and in practice was created by the Human Rights Council in 2011 to identify, promote and exchange views, in consultation with States and other actors, on good practices related to the elimination of laws that discriminate against women. The Group is also tasked with developing a dialogue with States and other actors on laws that have a discriminatory impact where women are concerned.

The Working Group is composed of five independent experts: the Current Chair-Rapporteur Frances Raday (Israel/United Kingdom), Alda Facio (Costa Rica), Kamala Chandrakirana (Indonesia), Emna Aouij (Tunisia) and Eleonora Zielinska (Poland). Learn more, log on to:

http://www.ohchr.org/en/special-procedures/wg-women-and-girls