Legal protection has not prevented women and girls from being discriminated against
Introduction
There should be equal treatment for both men and women under law. This is important so that women and girls may enjoy equal opportunities and rights as their male counterparts, and in the process, realise their full potential. Various societies in developing and developed countries are typified by various types of discrimination against girls and women, which amounts to violation of human rights. This calls for the enacting of a well-functioning legal system in which encompasses policies and laws that guarantee gender protection and equality of girls and women against various forms of discrimination on the basis of their gender (Yasmeen 2012). However, more than twenty years following the historic Beijing conference whose key goal was on women empowerment, women and girls in over 170 countries still encounter various forms of legal barriers that hinder them from experiencing the same protections, liberties, and rights as boys and men. This is the clearest indication yet that legal protection has done little in the way of preventing girls and women being discriminated against.
Gender gap in gender anti-discrimination laws
In spite of the economic, ethical, and health motivations for the realisation of gender equality, girls and women still encounter limited opportunities than boys and men across the globe. The greatest challenge facing all of us now is how to close this gender gap. In developing countries, too many girls compared to boys still face barriers to post-primary education such as early marriages (Equality Now 2012). On the other hand, too many women do not have access to the economic means that would help them safeguard themselves against violence, rid themselves of poverty, and safeguard their individual health and that of their children. Such relentless inequalities considerably undermine the potential of girls and women.
Nearly all national constitutions pledge to see to it that the rights of girls such as pursuing an education are guaranteed and that women enjoy the right of association, right to vote, as well as right to hold legislative office. However, protections have been seen to fall behind in areas of social and economic rights, including work, marriage, and health. This is not so say that there has been no progress made. Over the last two decades, more than 95% of all national constitutions contain clauses that pledge the quality of women, albeit in general terms (The Guardian 2015). The Australia constitution for example, does not clearly guarantee gender equality. The country has over the years passed various laws with the aim of preventing discrimination, including the 1975 Racial Discrimination Act, the 1992 Disability Discrimination Act, the 1984 Sex Discrimination Act, and the 2004 Age Discrimination Act (Human Rights Law 2011). Collectively, these legislations only offer only gradual protection against discrimination. In particular, these anti-discrimination laws are inadequate because they are complaints-based and reactive; do not actively deal with systematic discrimination or promote equality, and fail to deal with all grounds of discrimination. Consequently, there have been calls from the UN Human Rights Committee for the country to strengthen her anti-discrimination laws.
Elsewhere, the US constitution, while guaranteeing equality in general terms, fails to specifically guarantee gender equality. Specifically, the 14th Amendment fails to guarantee sexual or gender discrimination (Terkel 2011). Scalia (2011) opines that even as the US Constitution does not invalidate the enactment of laws prohibiting such discrimination, it has not forbidden that behaviour.
In the UK, the 2010 Equality Act forbids discrimination against access to public services, employment, education, premises, or private goods and services, on the basis of any of the “protected characteristics”. These are: disability, age, civil partnerships and marriage, sex, religion, race, sexual orientation, and gender reassignment (Wadham 2012). Again, the UK lacks explicit laws that forbid discrimination against women and girls. In developing countries in Asia and Africa, various national constitutions still permit religious or customary laws to take the place of legal protection against gender inequality.
Lack of laws that protects girls and women against discrimination
In the absence of clear laws outlawing certain types of discrimination, like FGM (female genital mutilation), child marriage, and incest, against girls and women, what this means is that the State encourage such acts, leading to exoneration for perpetrators. Laws create standards that the State is compelled to champion. Such laws act as a vital component for raising awareness and protecting girls and women against discrimination. Child marriage is still prevalent in India. With 47% of girls getting married before attaining the legal age (18 years), this denies girls a right to education, health, and choice (Unicef India 2016). It also undermines the country's progress towards the realisation of fundamental developmental goals. Even though there has been widespread awareness that child marriage is illegal as provided for by the 2006 Prohibition of Child Marriage Act, cultural norms and traditions appears to have prevailed over legal provision. Yemen lacks a law that outlaws child marriage, while in Pakistan has laws that forbid statutory rape and rape, but no definite laws against incest. This leads to additional harm to the victims of incest.
Sex discriminatory laws
Laws that promote or condone violence and discrimination against girls and women acts as a clear indicator to perpetrators that they can engage in their actions with impunity because they enjoy complete State support. It is important to amend or repeal such laws as the first step towards preventing additional discrimination and violence. Law enforcement officials and legislators ought to clarify the invalidity of customary law which is often discriminatory against girls and women. Laws that lead to rapists getting reprieve for his actions after marrying his victim implicate girls and women to violence for life. Such laws exist in Morocco and Lebanon, and could send a message to the public that the perpetrator could still evade being punished even after being caught (Equality Now 2012). Argentina has however made considerable progress in repealing such laws, following the 2012 repealing of the country's Penal Code. This eradicated the likelihood that a perpetrator of sexual abuse could reach a settlement with his victim, which would permit the perpetrator to escape punishment.
Poor implementation of existing laws
Some countries have in place good laws on gender discrimination, but these are often characterised by poor implementation. In Ethiopia for example, rape, forced marriage, and abduction is fairly common. This, even as the country has put in place laws that outlaw abduction and forced marriage. This is a clear indication that the laws developed are either poorly implemented, or not implemented at all. Although the country has implemented a Family Law which outlaws marriage below the age of 18. UNICEF (n.d.) opines that it is very hard to transform the mind-set of traditions die hards who believe in marrying off their daughters at a young age to avoid social and economic risks that the girl and their families may be exposed to.
In Kenya, FGM has been outlawed and there has been an effort to create awareness in areas where the practice is entrenched. However, the police who are charged with the responsibility of enforcing the laws, have not received training on FGM and are largely not implementing it (The Guardian 2015). Elsewhere in Kyrgyzstan, there are laws in place that outlaw forced marriages and kidnappings. Sadly, those charged with the reasonability of enforcing such laws including the police, judges, and prosecutors usually perceive bride kidnappings as a revered tradition that enjoys cultural protection (Equality Now 2012). Consequently, they have failed to implement the law.
Hindrances to the search for justice
Even though laws may be implemented to protect girls and women against discrimination, girls and women frequently encounter other barriers during legal proceedings, including failure to protect the identity of the victim, prolonged legal procedure, re-traumatization as the victims endeavour to endure the legal system, as well as the reluctance by authorities to probe cases of gender discrimination. Due to lack of law to protect the identity of victims of gender discrimination, victims come face to face with their perpetrators during court proceedings. They are often badgered beyond reason by the defence lawyer (Equality Now 2012). In countries such as Pakistan which are characterised by a slow judicial system, victims of gender violence are exposed to lengthy legal proceedings, with the result that most cases linger on for years. Consequently, the cost of court proceedings increases, the financial burden of the victims and their families.
Conclusion
The right to equality is now considered a basic human right. Even though gender equality is implicated with economic, ethical and health motivations, the gender gap still persists in regards to discrimination against women and girls. Some countries have enacted laws that protect girls and women against discrimination while others such as Lebanon and Morocco have in place laws that appear to promote discrimination against girls and women. Others like Kenya and Ethiopia have good laws on gender discrimination but implementation is poor. Girls and women frequently encounter challenges in search for justice against acts of gender discrimination in the form of lengthy court proceedings. It is important therefore that the legislative bodies in various countries develop specific laws on gender discrimination so that they can be enforced appropriately. National governments should also endeavour to eradicate hindrances to victims of gender discrimination who are seeking justice. The justice system should also endeavour to fast-track prosecution of perpetrators so that justice can be realised in a speedy manner.
References
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UNICEF. n.d. Margherita Amodea. "Life After Early Marriage: Mulogojam, Weinishet and Tsigereda, Zeinab and Conclusion"
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