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

11 December 2015

WASHINGTON DC (11 December 2015) – At the end of a 10-day mission to the United States, in which the expert group’s delegation, comprised of Eleonora Zielinska, Frances Raday and Alda Facio held meetings in Washington DC and visited the states of Alabama, Oregon and Texas, Frances Raday delivered the following statement:

We want to express our sincere appreciation to the Government of the United States for having invited us to conduct this country visit. We are grateful to all our interlocutors, officials at the Federal and state levels and members of civil society, including women’s organisations, practitioners and individual women who shared their experiences with us.  

US Women in Global Context

In its greatly appreciated invitation to our expert group, the United States opened the door to a frank interchange regarding both good practices and gaps in US women’s enjoyment of international human rights. We acknowledge the United States’ commitment to liberty, so well represented by the Statue of Liberty which symbolizes both womanhood and freedom.  Nevertheless, in global context, US women do not take their rightful place as citizens of the world’s leading economy, which has one of the highest rates of per capita income. In the US, women fall behind international standards as regards their public and political representation, their economic and social rights and their health and safety protections.

In 2010 and 2015, in the framework of its Universal Periodic Review, the US government committed to ratify the Convention on the Elimination of All of Forms of Discrimination Against Women (CEDAW) but this commitment has not yet been implemented.  Resistance to ratification of CEDAW reflects the opposition of a powerful sector of society to the Convention’s formulation of women’s international human right to equality. This political resistance has also consistently blocked efforts to pass an Equal Rights Amendment, which would entrench women’s right to equality in the US Constitution.  We strongly urge ratification of CEDAW and adoption in the Constitution of women’s right to equality and non-discrimination as defined in the Convention.

The US is one of only seven countries which have not ratified CEDAW. Even in the absence of ratification of CEDAW, many of its standards are entrenched in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights(1) and in customary international law, and are hence binding on the US. Nevertheless, we are of the unreserved opinion that ratification of CEDAW is crucial, on both the domestic and the global levels, in order to confirm the US commitment to substantive equality for women in all spheres of life. At the domestic level, ratification is essential in order to provide all US women with rights and protections guaranteed under CEDAW. There is a myth that women already enjoy all these rights and protections under US law. However, there are missing rights and protections such as universal paid maternity leave, accessible reproductive health care and equal opportunity in standing for political election.

We welcome the Cities for CEDAW initiatives which have started a process of incorporating CEDAW principles at the local level. This not only has intrinsic value for the women and men in those cities but it also serves to demonstrate the sustainability of women’s international human rights standards in the US context and can act as a lever for their further expansion.

As regards resistance to CEDAW, our visit is particularly timely at a moment when the political rhetoric of some of the candidates for the Presidency in the upcoming elections has included unprecedented hostile stereotyping of women; when there are increasingly restrictive legislative  measures in some states and violent attacks to prevent women’s access to exercise of their reproductive rights; and when there is an increase in the rate of women living in poverty, a persistent wage gap and increasingly precarious employment.

Public and political life

Four out of 15 members of cabinet are women. Women hold 19.4% of Congressional seats and their representation in state legislatures varies widely between 12.9% and 46.2%, with an average of 24.9%. This represents the highest level of legislative representation ever achieved by women in the United States. However, it still places the country at only 72 in global ranking.

According to several interlocutors, the low level of representation for women in elected political posts is partly due to the greater difficulties women face in fundraising for campaigns.  The role of money in political campaigns has grown significantly in the last decades and has drastically altered the landscape for elections and political participation. Women’s difficulty in fundraising is considered to result from complex causes. In particular, it is a result of exclusion from the predominantly male political networks that promote funding.  It also results from underlying factors, such as negative stereotypes and biased presentation of women in the media, which adversely affect both women’s fundraising ability and their political candidacy. It is our view that the claim that women have lesser political ambition should not be regarded as unrelated to all the other factors since these must act as a rational deterrent to women’s political involvement. Our group regards the objective difficulties women face in raising campaign funding as a serious limitation on women’s opportunities for political representation and is deeply concerned that the removal of limits on campaign funding by the Supreme Court threatens to exacerbate this situation. A small number of states and cities have started to use programs for public financing of campaigns. One method, which its supporters call “Clean Money, Clean Elections”, gives each candidate who chooses to participate a fixed amount of money. Some interlocutors have pointed out that, in order to effectively give women an equal chance, competing private funding would have to be restricted. The Group encourages the efforts deployed by some voluntary organisations, such as Emily’s List, which promote women candidates. We would like to recall that, in accordance with international human rights law requirements, temporary special measures have been adopted in many democratic countries to ensure more adequate representation of women in politics.

It is essential to ensure women’s continued access to the voting booth. At present women vote in higher percentages than men. Our group  is concerned that changes in voter identification laws, such as those in Alabama, which increase bureaucratic requirements for voter identification, in particular problematic for women who change their name in marriage and reduce the number of voting centers, can make registration and voting less accessible for the poor, of whom a majority are women.  A counter example and good practice is the state of Oregon which has facilitated voter registration and voting by mail.

The courts play a central role in determining women’s ability to enjoy and exercise the rights accorded to them by law.  There has been an increase in global awareness of the need for gender diversity and gender sensitive adjudication in judiciaries. In the US, the number of women justices has increased significantly, with women justices constituting three out of the nine Supreme Court justices(2) and women constituting over a third of the judges in federal and in state courts. While the presence of female judges does not guarantee judicial decision-making which is in substance gender-sensitive, the importance of diversity remains and the increase in the number of women judges is a positive trend. A severe problem for women litigants is in access to justice: free legal counsel and aid is not systematic for women living in poverty and when legal aid is partially provided to the most destitute, it is allegedly of very poor quality. Furthermore, the institution of the class action which has allowed large numbers of women to access compensation for discrimination or injury caused by powerful corporations, is being eroded. Our group recommends that the issue of substantive equality for women in court proceedings be revisited and reinvigorated and that access to justice for all, with adequate legal representation, be regarded as a civil right which, where necessary, should be publically funded.

Economic and social life

The global economic crisis created a serious challenge for the realization of economic and social rights in the United States and had a significantly adverse impact on women. As noted previously by other UN independent experts, the subprime mortgage market had disparately targeted the poor and, in particular, poor women. Subsequent government policies to boost the economy resulted in decreased expenditures on critical social protection programs, many of which are essential for women. These cuts had a disproportionately negative impact on minority women and single mothers.

Women constitute nearly half of the US labour force, at a participation rate of 57.0%, and have been an important factor in driving the last decades of US economic growth. Furthermore, working mothers account for two thirds of household earnings. Our expert group is concerned that this crucial labour force participation by women is not accompanied by equal economic opportunity and we are shocked by the lack of mandatory standards for workplace accommodation for pregnant women, post-natal mothers and persons with care responsibilities, which are required in international human rights law.

The gender wage gap is 21%, affecting women’s income throughout their lives, increasing women’s pension poverty. During the last decade little improvement has been made in closing it. Education increases women’s earnings but does not eliminate the gap, which is in fact largest for those with the highest levels of educational attainment. Women’s earnings differ considerably by ethnicity: Afro-American, Native American and Hispanic women have the lowest earnings. Despite the existence of the 1963 Equal Pay Act and Title VII, federal law does not require equal pay for work of equal value. However, California has now set a precedent with its 2015 California Fair Pay Act thus applying for the first time in US legislation the right to equal pay for work of equal value, which is required by international human rights law. Minimum wages have lost value as a living wage and the majority of minimum wage earners are women. Many are working full time and are the sole breadwinners for their families. Interlocutors regard the raising of the minimum wage to the level of a living wage as one of the most appropriate ways both to reduce the wage gap and reduce poverty amongst working women.

The estimated 2.5 million domestic workers in the US are overwhelmingly women, frequently immigrant women many of whom are undocumented. We learned that many of these workers are vulnerable to verbal and physical abuse and to wage theft. We welcome the initiatives taken by the CSOs to improve conditions for domestic workers through a domestic workers’ bill of rights. The Group calls for the US to ratify the ILO Domestic Workers Convention and apply its provisions to ensure that domestic work is decent work. This does not capture the situation of other informal economy spaces, such as tip employees and seasonal jobs, where minimum conditions of employment should also be regulated.

An additional severe problem is lack of enforcement. Wage theft, particularly in manufacturing, construction, and some service jobs impacts low-income and migrant workers, in particular undocumented women. Our group welcomes the recent increase in the budget of the Wage and Hour Division (U.S. Department of Labor) to support investigations and urges the government to increase supervision and to hold employers who violate the rights of these particularly vulnerable women workers to account.

The 1993 Family and Medical Leave Act provides employees with the right to take unpaid, job-protected leave of twelve workweeks in a 12-month period, including for the birth of a child and to care for the newborn child within one year of birth; A significant number of employees are not covered by the Act because it is restricted, amongst other things, to employers who have more than 50 employees. However, even for those employees whom it covers, this provision falls far beneath international human rights standards, which require that maternity leave must be paid leave, with best practice being  the provision of additional paid leave for fathers too. The US is one of only two countries in the world without a mandatory paid maternity leave for all women workers.  As of 2014, paid maternity leave is provided by legislation in 3 states and in Federal government employment but it is only for six weeks, which is beneath the international minimum of 14 weeks.  The Group regards it as vital that 14 weeks paid maternity leave for pregnancy birth and post natal related needs be guaranteed for all women workers in public and private employment and advises that best practice is payment from a social security fund which does not impose the direct burden on employers.

Caring responsibilities fall primarily on women and women are reported to be far more likely than men to work only part time for family care reasons. Our expert group considers that the public budget should provide childcare, after-school and also elder and disabled facilities, which are affordable and accessible, to allow adults with care responsibilities, women and men, to work in full time employment.

The percentage of women in poverty has increased over the past decade, from 12.1% to 14.5%, with a higher rate of poverty than men, affecting predominantly ethnic minorities, single parent families and older women. We suggest that both Federal and state governments address this problem urgently, by promoting employment for women, raising the minimum wage and eliminating the wage gap. Residual poverty should be addressed through the social security system and, given the country’s economic strength, there should be a policy of zero tolerance for the relegation of people to poverty.

Poverty may result in homelessness which exposes women to higher levels of violence and vulnerability. Furthermore, interlocutors pointed out that victims of domestic violence are often numbered amongst the homeless, either because they have been evicted as a result of the violence or because they have fled from their violent partner. Solutions should include effective protection orders, increased availability of shelters, housing support, prioritizing eligibility particularly for single mother households and those facing heavy unpaid care burdens.

We were informed that women own over one third of US firms, mainly in small and medium size businesses. These businesses face greater barriers in obtaining low cost capital from sources such as the Small Business Administration and clearly need support in order to achieve equal economic potential. However, the Small Businesses Administration has a stated goal of awarding only 5% of federal contracts to women-owned businesses. Furthermore, it is reported that this goal has never been reached in practice.

International human rights law requires the establishment of social protection floors for core economic and social needs, provision for paid maternity leave, and the taking of all appropriate measures to produce de facto equality between all women and men in the labour market and in women-owned businesses. It is not for our group to suggest how these minimum standards should be achieved but only to point out how the United States, as economic leader of the world, lags behind in providing a safety net and a decent life for those of its women who do not have access to independent wealth, high salaries or economic support from a partner or family.

Access to health care

The group acknowledges the legislative and institutional(3) efforts deployed towards improving the enjoyment of women’s right to health. In particular, we welcome the steps taken by the current administration to expand access to health care for many uninsured citizens through the Affordable Care Act (ACA) passed in 2010(4), aimed at reducing the cost of health insurance and augmenting access to health care through the expansion of Medicaid, thus reducing the number of uninsured. ACA also established crucial protections against discriminatory practices consisting, inter alia, of charging women more for health insurance than men due to perceived higher costs associated with women’s reproductive health needs.

Despite this considerable progress, there is still no universal health coverage in the country, and too many women pay the price, sometimes with their lives, of this considerable coverage gap with strong regional and ethnic disparities. According to the information we received, a third of the people living in poverty are still uninsured, affecting primarily women, in particular Afro-American and Hispanic women, preventing them from accessing basic preventive care and treatments.  Furthermore, there are restrictions for immigrants, including immigrant women to access Medicaid during a five year waiting period and there is perpetual exclusion of undocumented migrants from any health care with the limited exception of emergency care.  According to various stakeholders we met, Texas and Alabama do not allow lawfully residing immigrants to enrol in Medicaid even after completion of the federal waiting period of five years. We heard appalling testimonies of migrant women who were diagnosed with breast cancer but could not afford the appropriate treatment. The Group hopes that the Health Equity and Access under the Law (HEAL) for Immigrant Women and Families Act, currently before Congress, would expand access to health care for immigrants, particularly for women and children. Our Group also regretted to learn about the serious inadequacies of health care facilities to treat women with disabilities and calls for improvement.

Reproductive health and rights

Our expert Group is concerned at the increase in maternal mortality rates in the United States. According to UN reports, the ratio increased by 136% between 1990 and 2013. These numbers also hide distressing ethnic and socio-economic disparities. Afro-American women are nearly four times more at risk to die in childbirth. States with high poverty rates have a 77% higher maternal mortality rate. We strongly encourage concerned authorities to continue their efforts to identify the root causes and elaborate adequate policies to address this issue.

Our group welcomes the ACA’s requirement that new private health plans cover contraceptive counselling, without out-of-pocket costs. However, we are concerned that the Supreme Court’s recognition, in Hobby Lobby, of an exemption on grounds of freedom of religion to opt out of contraceptive insurance for employees, will deprive some women of the possibility of accessing contraceptives. The Group would like to recall that, under international human rights law, states must take all appropriate measures to ensure women’s equal right to decide freely and responsibly on the number and spacing of their children which includes women’s right to access contraceptives.

Our Group was informed that, being a prerogative of each state, adequate and quality sex education in schools was lacking in many curricula. We learned that in many schools, only abstinence was taught instead of providing objective and scientifically based sex education which is a key element of health policy. However, we were pleased to learn that in Oregon for instance, sex education is included in the school curriculum.

Women’s reproductive rights include the constitutional guarantee under Roe v. Wade for a woman to be able to choose to terminate a pregnancy in the first trimester prior to viability. Although women have a legal right to terminate a pregnancy under federal law, ever increasing barriers are being created to prevent their access to abortion procedures. In 1976 the Hyde Amendment prevented federal Medicaid and Medicare coverage for the termination of a pregnancy except in cases where the life of the woman is in danger, in cases of rape and incest. Women’s access to reproductive health services has been truncated in some states by imposition of severe barriers.  These take the form of unjustified medical procedures, such as compelling women to undergo ultrasounds or to endure groundless waiting periods, withholding of early pregnancy abortion medications, imposing burdensome conditions for the licensing of clinics, which have resulted in the closing of clinics across the country leaving women without geographical access to sexual and reproductive health services. These restrictions have a disproportionate and discriminatory impact on poor women. As we observed during our visit in the Rio Grande Valley, one of the poorest regions in the country, immigrant women face severe barriers in accessing sexual and reproductive health services. Furthermore, the marketplace insurance coverage for a safe and legal termination of pregnancy is far from universal. Thus, insurance will frequently not be available for women who wish to exercise their right to terminate their pregnancy in the first trimester.

In addition, many of the clinics work in conditions of constant threats, harassment and vandalising, too often without any kind of protection measures by law enforcement officials, as we observed during our visits to Texas and Alabama. Alabama has a history of severe violence against abortion providers including the killing of Dr. David Gunn, in 1993, the first doctor to be murdered for performing abortions in the United States. The recent massacre in the Colorado family planning centre, which occurred just before the start of our visit, once again demonstrated the extreme hostility and danger faced by family planning providers and patients.

We encourage the adoption of the Woman’s Health Protection Act, which would prohibit states from enacting restrictions on reproductive health care providers that interfere with women’s personal decision making and block access to safe and legal abortion services; and to require all hospitals to provide these services and insurance schemes to provide coverage for abortions to which women have a right under US law.We also encourage increased funding of clinics under the Title X Family Planning Program(5) in order to expand coverage for low-income women who lack insurance in order for them to access preventive care, including sexual and reproductive health services, and in order to reduce maternal mortality.

We urge the authorities to combat the stigma attached to reproductive and sexual health care, which leads to violence, harassment and intimidation against those seeking or providing reproductive health care, and to investigate and prosecute violence or threats of violence.  We wish to recall, as independent United Nations human rights experts have consistently stressed, that freedom of religion cannot be used to justify discrimination against women, and therefore should not be regarded as a justification for denying women’s right to enjoyment of the highest attainable standard of health. We encourage steps to reconcile U.S. laws on religious or conscience-based refusals to provide reproductive health care with international human rights law and to prohibit refusal to provide sexual and reproductive health services on grounds of religious freedom, where such refusal will effectively deny women immediate access to the health care to which they are entitled under both international human rights law and US law.

Women’s safety

Our group acknowledges the significant efforts deployed at the legislative(6) and institutional(7) levels to lower the prevalence of violence against women. We share the concerns expressed by the Special Rapporteur on violence against women in her report on her visit to the United States in 2011(8), regarding, inter alia, women in detention (over-incarceration, sexual violence, shackling of pregnant women, solitary confinement, lack of alternatives to custodial sentences for women with dependent children, inappropriate access to health care and inadequate re-entry programmes) as well as the alarming high rates of violence against Native-American women. We also share the concerns of the Special Rapporteur regarding the fatal consequences for women of lack of gun control, in particular in cases of domestic violence. Our group also deplores police brutality and the increased number of homicides of Afro-American women by the police. Our attention was also drawn to numerous cases of violence against LBTQ women, including homicides.

We are extremely concerned at the situation of migrant women in detention centers, in particular women with minor children who are in prolonged detention. According to the information received, detention facilities are not complying with federal mandates and agency policies. We received allegations of women being subjected to an “expedited removal process” which in spite of the credible fear of return exception, results in the denial of many legitimate asylum claims. We also received allegations of sexual abuse and assault of women detainees, as well as mistreatment from CBP officials. Migrant women are often victims of trafficking and violence, including sexual violence during their journey to the United States. We regretted to learn that appropriate health care services are not systematically provided to these women in a timely manner despite the horrifying physical and emotional ordeals endured. We also received complaints of transgender women being mistreated in detention often wrongfully placed with males. The group encourages the establishment of accountability mechanisms and adequate gender sensitive training as well as the release of women and children from detention.

The criminalization of women in prostitution in most of the country places them in a situation of injustice, vulnerability and stigma and is contrary to international human rights law. As the CEDAW Committee has systematically reiterated, women should not be criminalized for being in a situation of prostitution. Furthermore, as stipulated in the Palermo Protocol, efforts should be deployed to discourage the demand that fosters all forms of exploitation of women.

Conclusions

We want to reiterate our gratitude to the Government for inviting our expert group to conduct this visit and for engaging in frank and open dialogue. The current administration has demonstrated its will to cooperate with the international human rights mechanisms: the UPR, the Committee on the Elimination of Racial Discrimination, the Human Rights Committee and the Committee against Torture and has invited numerous special procedures. Nonetheless, we note that there is no proper institutional framework to follow-up on recommendations received. In this regard, we would like to insist on the importance of establishing an independent human rights institution in compliance with the Paris Principles (which should include a woman's rights commission).

While the current administration has consistently expressed its unconditional support for the cause of women's equality, we regret to observe a gap between rhetoric and reality. As many stakeholders have underscored, the extreme polarisation of politics is profoundly affecting the ability of the Government to ratify CEDAW and to guarantee women’s human rights. We understand the complexity of federalism but this cannot be regarded as a justification for failure to secure these rights. Under the Vienna Declaration, these rights are universal, indivisible and inalienable.

The United States, which is a leading state in formulating international human rights standards, is allowing its women to lag behind international human rights standards. Although there is a wide diversity in state law and practice, which makes it impossible to give a comprehensive report, we could discern an overall picture of women’s missing rights. While all women are the victims of these missing rights, women who are poor, belong to Native American, Afro-American and Hispanic ethnic minorities, migrant women, LBTQ women, women with disabilities and older women are disparately vulnerable.

These preliminary findings and conclusions will be developed and presented in a more comprehensive report to the Human Rights Council in June 2016.

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 Eleonora Zielinska (Poland), the Vice-Chair Alda Facio (Costa Rica) and the other members Emna Aouij (Tunisia), Kamala Chandrakirana (Indonesia), and Frances Raday (Israel/United Kingdom)

Learn more, log on to: http://www.ohchr.org/en/special-procedures/wg-women-and-girls 

Notes

1. Ratified in 1992

2. Highest rate of women in the Supreme Court in the history

3. Including the work undertaken by the Office of Women’s Health conducting gender mainstreamed research, the Family Violence Prevention and Services Division and the Office of Minority Health within the Department of Health and Human Services

4. Offers regulated insurance marketplaces, tax credits to purchase private insurance, and expanded access to government health insurance for the poorest

5. In the past 40 years, Title X family planning clinics have played a critical role in ensuring access to a broad range of family planning and related preventive health services for millions of low-income or uninsured individuals and others.

6. 1994 Violence Against Women Act and its subsequent reauthorizations, most recently in 2013

7. White House Office on Violence Against Women, Department of Justice Office on Violence Against Women, Department of Health Office on Violence Against Women

8. See her report A/HRC/17/26/Add.5