(The title alone should stop you from reading any further. This is a full academic paper, though not one I'm proud of, as I believe it is inferior in quality to the academic papers I used to churn out in my undergrad days. Final paper submitted for Gender and Law, II AY 08-09.)
The first mention of the equal protection clause was from the United Nations Charter, specifically Article 1 (3), which states one of the purposes of the United Nations as “[t]o To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. And of course we all know from UN history that the charter is basically smut, because it binds no one. Enter now the Universal Declaration of Human Rights, or the UDHR. Take note of Article 2, which states that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status x x x”. Another sort of drawback here is that though the UDHR uses more legalese than the UN Charter, they are both not legally binding.
Enter now the conventions. First, the International Convention on Civil and Political Rights, more popularly known as the ICCPR, specifically, Articles 3 and 26. Article 3 states that “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”, while Article 26 states “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The ICCPR was the first enacted covenant in response to the non-binding characteristic of the UDHR, more specifically the equality clause. Most of the civil and political rights sought to be enforced are rooted in equal protection.
Next, we have the ICESCR, known also by its longer name, the International Convention on Economic, Social, and Cultural Rights. This convention sought to go into detail on some basic rights that seem to have been overlooked when drafting the ICCPR. These rights include the rights to education, clean water, and housing, among others. And like the name suggests, the rights sought to be enforced by the ICESCR mostly stay within the economic, social, and cultural realm. Then after that, we have the first attempt at addressing discrimination, albeit in its racial form, the International Convention on the Elimination of All Forms of Racial Discrimination, or CERD.
After that is where it gets really exciting. The next major convention dealt with something that previous conventions never tried to tackle, at least independently. I am of course talking about the gender movement, or the fight for the rights of women, history’s most oppressed sex at that time (and some may argue, up to now). Which is why we now have the Convention on the Elimination of All Forms of Discrimination Against Women, known by its fearsome acronym, CEDAW. This five-lettered acronym somehow serves as the “last bastion of hope”, so to speak, for oppressed women everywhere. Finally, there is an international remedy available to females around the world, regardless of race, sex or nationality.
The gender movement has actually spawned several sub-movements, all falling under the category of discrimination based on gender. We have the fight for homosexual rights (which include the rights of both gays and lesbians). This radicalism encouraged more and more people who are oppressed because of their gender to come out into the open, and fight for their rights. These new radicals include the bisexuals, as well as the transgenders, who all claim to be fighting for one thing and one thing only: recognition before the law as a normal human being.
II. Main Arguments
The broad umbrella of human rights, specifically its development, is often misconceived. Most regard it as having happened in waves, in order of importance. For example, since the ICCPR came first, it is often argued that civil and political rights occupy center stage in the rights to be enforced. Does it follow, then, that since this covenant is meant to enforce the basic rights seemingly denied by the apathetic approach to the UDHR’s non-binding nature, that civil and political rights rank higher than other rights?
This is actually the point I would like to question, for to presuppose the transcendental importance of one group of rights over another is to presuppose a hierarchy. This is what brought about the wave theory, claiming that civil and political rights belong to the first wave, while economic, social, and cultural rights belong to the second wave, et cetera. But to assume that human rights developed in waves would be to conclude that gender rights are not as important as civil and political rights.
What I would like to posit is that human rights developed, and is developing, in a continuum. Every succeeding treaty, covenant, or protocol developed because the previous one was not entirely successful in implementing the crucial clauses, among others the equality clause. Discrimination based on gender (including also other forms of discrimination) is actually a continuing call for the strict reinforcement of the equality clause. In order to describe it better, it is the same as saying that gender equality should have already been guaranteed as far back as the UDHR; and since gender-based discrimination still proliferated, the ICCPR should have done the trick. But since the ICCPR was still unsuccessful in eradicating discrimination based on gender, they had to come up with the CEDAW to finally cement their claim. But honestly, after the CEDAW, gender-based discrimination still has a very strong presence in many cultures of the world, and in my opinion, this will never be enough. Human rights will continue to develop until we get everything right.
First up: the Universal Declaration of Human Rights. This document came about because of that atrocious event known as World War II. It is no surprise that when you say “World War II Europe” one of the first images that comes to mind is that of almost-skeletal people in striped pajamas. These were the Jews, six million of them slaughtered like cattle in the event known as “The Holocaust”.
Along with the advent of world banking and dividing the world amongst themselves, the western powers improved on their previous attempt at a world government, the League of Nations, and developed the United Nations. A few years later, they came up with the Universal Declaration of Human Rights, in response to all the human lives lost during the war. The UDHR guaranteed equality before the law, as a person, and more importantly as a human being. Everyone in this world is entitled to the same basic rights, whether or not they have blond hair and blue eyes. Then they went beyond the physical, and threw in a few other things, like equality based on religious, linguistic, and sexual differences. Take note of the use of the word “sex” as opposed to “gender”, which is something I will be discussing later.
So now we have the UDHR, and everybody seems happy. Wrong. Discrimination still persisted, discrimination in all its reincarnations. Racial discrimination was still rampant, even post-1945, as well as the other types of discrimination, all in flagrant violation of the UDHR’s equality clause. And then they discovered one flaw: the UDHR was not binding on any nation, as it was not a treaty. What a convenient loophole, on the part of the violators, that is.
And thus was born the ICCPR on 16 December, 1966. Take note of these specific provisions (which I already mentioned at the beginning): Article 3, “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” And Article 28, “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” These are reinforcements of the equality clause, and being the most important clause in the UDHR, violations of it cannot be made to pass on the mere technicality that it is not binding. The equality clause must be enforced, specifically because of the events mentioned in the preceding paragraph, and if it requires a treaty to bind the nations of the world, then that treaty has to be created.
Note that while the ICCPR seems to have partially solved the problem, it enumerates eight types of discrimination: 1) as to race; 2) as to color (although I think they are one and the same thing); 3) as to language; 4) as to religion; 5) as to political or other opinion; 6) as to national or social origin; 7) as to property; and 8) as to birth or other status. Now that is quite a mouthful in itself, taking into account also the sheer population of the planet, and if all these types of discrimination do indeed exist, then it is most likely that only one or two types of discrimination will actually be cured by the ICCPR. The status quo, like a living organism, will find a way to survive, and the rest of the other types of discrimination shall continue as if no treaty had been drafted in the first place.
Proof of this lies in the fact that despite the ratification of the ICCPR, the discrimination of women, simply because they are women, continues to thrive. Discrimination continues despite the ICCPR’s Article 28. It is as if Article 28 was never written at all.
And because of this, the women of the world had to unite and move for the creation of the Convention to End All Forms of Discrimination Against Women. This was actually the second covenant to zero in on a specific type of discrimination, the first being the Convention on the Elimination of All Forms of Racial Discrimination. Its main objective is to make sure that the equality clause is strictly enforced in the area of discrimination based on sex.
Taking off from that point, we move now to the difference between the words “sex” and “gender”. What exactly is the difference? “Experts tell us that in the human person, sex and gender—the biological principle and the cultural expression—are not identical.” Well, the word “sex” is most often used in its biological sense. It relies on one’s physical attributes. If someone has a penis, that someone is a male; a vagina, female. But discrimination is not based on physical attributes alone. Women are discriminated from some forms of labor not because of their vagina; women are expected to fulfill a certain “feminine role”, like staying at home, taking care of the children, and doing the laundry. Lesbians who fall under the “butch” category are often allowed masculine roles because the role they are expected to play in society is “exactly like a man, only with breasts and a pussy” (pardon my French). And homosexual men are discriminated from certain “masculine” professions, like the army, because gay men are expected to fulfill a softer, less manlier role, and a testosterone-filled place like the army cannot provide them with an opportunity to fulfill that role.
Because of that, the role of a person, as opposed to that person’s biological sex, had to be qualified, and the term gender was used to describe a person’s role in society. For both heterosexual males and females, “sex” and “gender” may overlap. But for the gays, lesbians, and transgenders, the distinction must be clear. Some people think that gays and lesbians only came out of the woodwork, so to speak, in the twentieth century. That is totally false. Gays and lesbians have existed as far back as recorded history allows. It was only during the last century that they started campaigning for the rights which they should already have in the first place.
Since the fight for the equality clause seems to have divided itself into as many groups as there are types of discriminations, we can predict that the full and actual realization of the equality clause as envisioned in the original Declaration might take years, even decades. The status quo is not something static that you can topple like a house of cards; it is a living and breathing organism, and it evolves with the times. So if new conventions or covenants against discrimination are passed, then the status quo, which thrives on discrimination, will be forced to adapt. So new types of discrimination might actually be formed from the prevention of other types.
So again, let me just reiterate that there is no such thing as a hierarchy of rights. There is only one long continuum of the enforcement of the equality clause as promised in the Universal Declaration of Human Rights.
V. Local Application
Let us now go to the application of the gender-based discrimination struggle in the local scene by taking a look at some of the laws enacted especially for women.
Republic Act 8353, or the Anti-Rape Law of 1997, is an improvement on the previous criminal statutes against rape. R.A. 8353 repealed Article 335 of the Revised Penal Code, where it was still classified as a Crime Against Chastitiy under Title Eleven.
The Anti-Rape Law significantly broadened the crime of rape, and now redefined the act of sexual assault to include “inserting [a man’s] penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.” This then makes it possible for men to be raped. So this law not only favors women, but also homosexual males, who are often victims of rape in prisons.
Republic Act 9262, or the Anti-Violence Against Women and Their Children Act, was a latter enactment. This went further than redefining terms; this law actually went as far as to provide extraordinary remedies, namely the three types of protection orders: the Baranggay Protection Order, the Temporary Protection Order, and the Permanent Protection Order. Of the three, the Baranggay Protection Order, or the BPO, is the most innovative, as it provides a fifteen-day destierro against an offender, at the baranggay level, without need of judicial intervention.
R.A. 9262 was enacted also to answer the need of women to be protected from violence against them. The predominantly male Filipino culture expects women to fulfill the submissive role of a punching bag, there to take the blows of the her spouse when he is feeling angry, and there to give him sexual gratification when he is horny. These types of battery do not only leave physical pain, they also leave emotional scars, often for life. And worse than this is that they also propagate a culture of violence, and the less women talk about this problem, the greater the chance that this culture will be passed on to the succeeding generations.
And finally, we have the latest of our legal developments in the field of gender, and that is the Reproductive Health Bill. Those who have been keeping abreast know about the controversies surrounding this bill, about its stance on contraception, and its supposed effect on the Philippine population. I shall try not to dwell on its pros and cons, for even the experts can’t seem to compromise and find middle ground on this law.
The Reproductive Health Bill, or the RH Bill for brevity, was drafted using the word “gender”. It is specifically this six-letter word which caused quite a stir (that and the abortion angle), as this is first time the Philippines recognized the difference between the words “sex” and “gender”, and has seemingly applied it correctly. The Catholic Church, on the other hand, in true violation of the wall of separation between church and state, has “strategically suggested” that the word “sex” be used instead. I leave it up to your imaginative minds to figure out the Church’s motive in doing so.
In conclusion, let me just state that I believe that I have not done justice to this paper, as there a lot more points I would have liked to raise. Due to limited time, and unavailability of research materials, I have not been able to delve as deep as I would have liked to on this topic. The gender struggle, and the human rights movement as a continuum, cannot be adequately explained in approximately three thousand words. If given the chance, I would like to go deeper, and explore the human rights struggle in its entirety, focusing on the really strong and popular movements like gender. Well even the gender movement itself is such a broad topic that writing on that alone would consume so many pages, which in turn would consume so much paper, which in turn would consume so much trees. But such is the beauty of legal research, and academic writing should become second nature to law students, since no other method can expand one’s knowledge of something unless one writes about that topic. And the gender movement, especially in the times we live in, needs great writers to propel their ideas and advocacies through the new millennium.
Article 266-A (2), Revised Penal Code, amended by R.A. 8353