University of Technology Sydney Law Research Series
Last Updated: 11 September 2017
CONSTITUTIONAL APPROACHES TO GENDER AND SOCIAL AND ECONOMIC RIGHTS
Chapter 18 in Helen Irving (ed) Constitutions and Gender (Edward Elgar, 2017), pp 482-500.
The requirement that states contribute towards meeting the material needs of their citizens, in the form of social rights such as health, education, social security and housing, is frequently present in national constitutions. Economic rights such as the right to strike and form trade unions, that assist employees in the labour market, also appear in many constitutions. There is growing interest in the use of constitutional rights to address the persistent problems of poverty and inequalities of wealth in rich and poor countries alike (Thiruvengadam and Hessebon 2012).
Poverty should not however be understood in gender-neutral terms since poverty and gender inequality are closely related. Gender inequality is multi-dimensional and is shaped by political, economic and cultural factors that interact in complex ways (Fredman 2011). It manifests within the labour market where male and female work is differently defined and unequally valued; in households in relation to choices over the allocation of resources and reproductive responsibilities; and at the level of the State where law and policy are influential on the spheres of work and home (UNRISD 2010: 108). Women are more likely to live in poverty than men in the majority of countries in the world and have fewer employment and economic opportunities. Only half of the world’s women are in the labour force compared to three quarters of the world’s men (UN Women 2015: 74) and this work is often located in the informal sector and in part-time and precarious work. In many parts of the world women have less access to housing, land and productive resources and face greater barriers to education. For example, in the Middle East and North Africa, ownership of property by women is frequently restricted (UN Women 2015: 32) while in sub-Saharan Africa, even where women farmers have access to land, they are more likely to lack the capital to profit from the land (UNRISD 2010: 129). While there has been an increase in girls’ education worldwide this has not translated into a reduction in the gender wage gap (UN Women 2015: 81). This pattern indicates the persistence of gender inequality related to social and cultural expectations that women perform the bulk of care and domestic labour that keeps them out of the labour market or limits their participation in it. These expectations also lead to women occupying forms of work that are lower paid. Violence against women and limited opportunities to influence public and private decision-making impact on women’s position in society and their access to the resources and benefits that contribute towards a dignified life (Brodsky and Day 2005: 162). The likelihood of poverty is further heightened for particular groups of women such as single mothers, women with disabilities, women migrants and refugees, and women in minority communities.
Social and economic rights that offer to address poverty have special significance for women who, as a group, are disproportionately disadvantaged by poverty. But broad anti-poverty measures will not necessarily overcome gender stratifications among the poor unless they target this inequality concurrently. This means that social and economic rights, as the guarantors and enablers of such measures, must themselves be interpreted and developed to ensure that they take account of gender. The project to ‘engender’ social and economic rights in both domestic and international law has been underway for more than a decade and a small but rich literature has emerged. This chapter draws on this literature in considering the gender dimensions of social and economic rights within constitutional law.
The chapter begins with an examination of the origins, nature and prevalence of social and economic rights (Section 18.2). It then explores the arguments for understanding social and economic rights in gender terms and considers different approaches to this understanding (Section 18.3). The chapter then develops a typology of different constitutional models that address gender in relation to social and economic rights (Section 18.4). These include both justiciable and aspirational social and economic rights; other constitutional rights such as the rights to equality and the right to life that have been used to claim women’s social and economic rights; specific women’s rights included in some constitutions, that require states to meet the social and economic rights of women; and the incorporation of international law dealing with women’s social and economic rights via some domestic constitutional provisions. The conclusion (Section 18.5), in acknowledging that some constitutions provide limited social and economic rights for women, points to alternative and complementary strategies to address these gaps. It also suggests new challenges for scholarship and other engagement in the area of women’s social and economic rights.
18.2 SOCIAL AND ECONOMIC RIGHTS
The recognition of social and economic rights dates back to the eighteenth century and developed through the nineteenth and early twentieth centuries in the constitutions of countries such as Germany (1949), the Soviet Union (1924) and Ireland (1937) (Davis 2012: 1021), with Mexico (1917) a pioneer in Latin America. The establishment of the International Labour Organisation (ILO) in 1919 was influential in the growing acceptance of worker rights, including rights to social security. The Universal Declaration of Human Rights (UDHR) catalogued a wide range of social and economic rights alongside civil and political rights in 1948 and these were included in a binding treaty in 1966 in the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR). Most countries of the world are party to the ICESCR (numbering 165 on 22 February 2017). Social and economic rights also appear in a number of the other international human rights treaties including the 1979 United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (to which 189 countries were party on 22 February 2017). CEDAW (Article 14) requires equal access of women and men to education, health care, social security and worker rights and gives particular attention to the social and economic rights of rural women. Farha (2008: 553) argues that CEDAW has the ‘potential to be the most effective international human rights instrument for the protection and promotion of economic, social and cultural rights for women’. In both general recommendations and its concluding observations on specific countries, the CEDAW Committee has issued strong statements regarding states parties’ obligations to address women’s rights to housing, health, education, social security, work and other social rights.
Since the 1960s, the European Social Charter has been used as a regional standard on social and economic rights for those countries that are party to it. There are also social and economic rights in the regional instruments of Africa and America. Countries with bills of rights such as the United States and India began to infer social rights from civil and political guarantees such as equality and the right to life from the mid-twentieth century (Langford 2008: 5-6). The celebrated United States decision of Brown v. Board of Education (1954) interpreted the right to equal protection before the law to value fair access to education while the renowned case of Olga Tellis v. Bombay Municipal Corporation (1985) brought by slum dwellers facing eviction led the Indian Supreme Court to hold that the right to life includes the right to livelihood. After the Cold war an increasing number of countries began to include social and economic rights in their constitutions.
A study of the constitutions of 195 countries (as at 1 January 2013) found that more than 90 per cent had at least one social and economic right (Jung, Hirschl and Rosevear 2014: 1053). The most common of these, found in three-quarters of the constitutions in the world, is the right to education (ibid). A further five rights (the right to form or join a trade union, the right to health care, social security, child protection and environmental protection) together with the right to education all appear in more than half of the world’s constitutions (ibid). The study also considered the status of these rights to determine how many countries view such rights as justiciable as opposed to those that see them as aspirational. Around one-third of the countries see all of their social and economic rights as justiciable, with another third seeing some as justiciable and some as aspirational, and the final third combine those that see such rights as aspirational and those with one or no social and economic rights (Jung, Hirschl and Rosevear 2014: 1088). Certain rights are more commonly justiciable, such as the right to join or form a trade union, which is justiciable in almost two-thirds of constitutions (Jung, Hirschl and Rosevear 2014: 1053). The study also found that the existence of social and economic rights is associated with different states’ legal traditions; these rights are more common in countries with a civil law tradition and less likely in countries with a common law tradition or that follow Islamic law (Jung, Hirschl and Rosevear 2014: 1056-9).
Constitutional social and economic rights have generated significant debate among legal scholars about their justiciability. The issue is not a factual one, as the evidence above demonstrates, but a normative debate about whether courts should be given the power to adjudicate such rights (King 2012: 4). Concerns relate to the capacity of courts to determine resource allocations relating to complex policy matters that affect many parts of government. They also relate to the legitimacy of allowing judges to usurp the role of law-makers in a democracy. While this debate is not resolved, there is now a greater focus on the form of judicial review in adjudicating social and economic rights (Langford 2008: 29). Some remain convinced that strong forms of review where courts provide final decisions regarding government allocation of resources in interpreting social and economic rights are undemocratic. Others suggest that weaker forms of review where courts engage in a dialogue with the legislature and executive (and even private actors) address the ‘tension between rights and democracy or, expressed differently, with the counter-majoritarian dilemma’ (Davis 2012: 1027) and are most effective (Young 2012; King 2012).
Generally, constitutional social and economic rights are interpreted in terms of the categories developed by the United Nation’s Committee on Economic, Social and Cultural Rights (CESCR) to describe state obligations to respect, protect and fulfil such rights. Different constitutions and their courts provide varying degrees of detail as to the normative content of each social and economic right with some, such as the South African Constitutional Court, showing an unwillingness to define a minimum core obligation requiring immediate realization (Liebenberg 2010: 148-151). The obligation to respect is broadly meant to ensure that states refrain from interfering with rights, for example, by evicting people from housing or removing social programmes that people have come to rely on. The obligation to protect also requires states to ensure that private actors such as large corporations do not violate people’s social and economic rights, for example, by polluting their land and water. This may also require states to protect women from domestic violence in the home by ensuring that they have access to shelter and social services (Langford 2008: 18). The obligation to fulfil requires a positive duty to meet people’s needs through the realisation of their social and economic rights. This can occur through the immediate realization of minimum provision or through progressive realization of such rights within available resources. The latter can be achieved where a court requires government to develop a programme that will ensure access to their social and economic rights (Langford 2008: 21-24). In the South African Grootboom case (2001), Irene Grootboom and other members of her community were successful in challenging the government’s housing programme in terms of the South African constitutional right to housing.
Many of the social and economic rights have been given detailed content at the international, regional and national level. The CESCR has recommended, in relation to a range of rights, that attention should be given to accessibility, availability and adequacy (including quality and appropriateness) in ensuring that the rights are realised fully.
This section has provided a broad overview of the origins, prevalence and nature of social and economic rights and of some of the debates concerning their justiciability, content and role. The chapter now considers why such rights must be examined through a gender lens and how they can be ‘engendered’.
18.3 SOCIAL AND ECONOMIC RIGHTS AND GENDER
Social and economic rights in national constitutions are a natural focus for
those trying to challenge poverty and disadvantage. But
using such rights to
extend social provision does not necessarily lead to improvements for women.
Thus, for example, greater access
to housing by the poor, although valuable, may
not reach women if housing policy targets household heads (predominantly men in
societies). Similarly a state may require that all children attend school,
and provide adequate educational facilities, but if walking
to school entails
the danger of sexual violence to girls, this may pose a barrier to female
participation in education. It seems
clear that social and economic rights, if
not informed by a deep understanding of gender inequality in society, will fail
the particular needs of poor women.
There are different responses to the challenge of ‘engendering’ social and economic rights (Goldblatt and Lamarche 2014: 8-12). One of these requires that each social and economic right is interpreted and developed to ensure that the content of the right takes account of gender (Otto 2002: 51). For example, the right to health must include an awareness of and a response to women’s reproductive health needs and women’s greater susceptibility to HIV/AIDS and sexual violence. In another example, the right to social security should be interpreted to take account of the unequal position of women in the labour market due, in part, to the unequal distribution of care responsibilities in society (Lamarche 2002; Goldblatt and Lamarche 2014, Goldblatt 2016). While much of the effort to develop the gender content of social and economic rights has occurred in relation to international rights, a similar approach is both possible and important at the domestic constitutional level.
A second approach to ensuring that gender is incorporated into social and economic rights focuses on the relationship between these rights and the right to equality. In 2002 a group of experts developed the ‘Montreal Principles on Women’s Economic, Social and Cultural Rights’. These concerned the relationship between the right to non-discrimination and the equal enjoyment of women to the rights in the ICESCR. The Principles stress the interdependence of all human rights – civil and political alongside social and economic – in noting the close connection between equality and social and economic rights. They state (2004: 763) that:
To fully implement the rights set out in ... ICESCR, and similar guarantees
in other human rights instruments, requires an understanding
that focuses upon
the subordination, stereotyping, and structural disadvantage that women
experience. It requires more than just
formal legal recognition of equality
between the sexes. It requires commitment by all responsible parties to take all
to address the actual material and social disadvantage of women.
The Principles appear to have had some influence in informing the drafting of a General Comment (‘GC 16’) by the CESCR on the equal rights of men and women to enjoy their social and economic rights. Otto (2014: 223-4) notes that unlike the Montreal Principles, the Committee’s General Comment takes a symmetrical approach to gender that acknowledges that men can be victims of human rights violations without undermining the point that systemic gender inequality is disproportionately suffered by women. GC 16 explains (para 7) that policies and laws that promote formal equality between men and women are often inadequate as they are unable to address underlying social and economic disadvantage. It proposes that a substantive approach to equality be taken to ensure that such disadvantage is alleviated including through the use of special measures (para 15).
The CESCR also produced a further General Comment on non-discrimination that elaborates on the ICESCR requirement that states parties guarantee non-discrimination in relation to each social and economic right. It notes that ‘non-discrimination is an immediate and cross-cutting obligation in the Covenant’ (para 7). This may apply to national constitutions with equality rights as it may allow for claims to immediate rather than progressive realization of social and economic rights. The CEDAW Committee similarly integrates substantive equality into its consideration of social and economic rights. The United Nations Human Rights Council has a system of special procedures allowing for the appointment of independent experts with mandates to report and advise on human rights from a thematic or country-specific perspective. Many of these mandate holders have produced important comments on women’s social and economic rights and non-discrimination. Of particular relevance is the Working Group on Discrimination Against Women in Law and Practice whose 2014 report on women in economic and social life stressed that (para 8):
Women’s right to equality in economic and social rights is substantive,
immediate and enforceable. It concerns the division
of existing resources, not
the development of resources, and therefore the principle of progressive
realization does not apply. The
State has an obligation of due diligence to
prevent discrimination against women in economic and social life by private
entities. Furthermore, temporary special measures may be required to
accelerate the achievement of de facto equality.
A related equality-based approach is proposed by Fredman (2011) who draws on and develops the ideas of Iris Marion Young, Amartya Sen and Martha Nussbaum to advance an interpretation of substantive equality that can engender social and economic rights. This idea of substantive equality requires that systemic disadvantage, unequal power relations and dignity violations are addressed alongside transformative efforts that accommodate difference and ensure the participation of women. Fredman (2011: 33) sees this idea of substantive equality leading to a reformulation of social and economic rights ‘away from a conception of a fixed bundle of goods, to one which aims to enhance the range of feasible options for women, while at the same time valuing caring and interdependence within a community’.
Both the equality-infused approach and the attempt to develop the gender content of social and economic rights are closely related and may lead to similar outcomes. In some countries where equality rights exist alongside social and economic rights, either approach (or both) may be followed. For example, a claim by non-citizens for welfare grants in South Africa was framed as both an equality violation in treating citizens differently from permanent residents as well as a claim based on the right to social security. Where social and economic rights are not present in national constitutions or laws, anti-discrimination claims may ensure that disadvantaged groups such as women are provided with access to state resources and benefits. For example, Brodsky and Day (2005: 153), writing in the Canadian context where social and economic rights are absent from the constitutional Charter of Rights and Freedoms (1982), have argued that poverty is ‘a sex equality issue on the basis that it is a manifestation of discrimination against women, that affects women, and particular groups of women disproportionately, by exacerbating every form of social and sexual subordination that women experience’. They have participated in and documented (Young et al 2007) efforts by Canadian women’s rights advocates to argue for welfare benefits under the equality provisions of the Charter such as in the case of Louise Gosselin (discussed below).
The use of constitutional rights to ensure social provision for poor women can raise challenging issues about whether it is appropriate to differentiate between groups facing poverty and whether claims by women for special treatment might lead to stratifications or contests between different disadvantaged groups over their respective entitlements to scarce resources. These are issues that play out within the varied constitutional and political contexts of a range of countries. It seems that at times, extending social and economic provision to all will assist women while at other times such measures will need to be directed to all, but with specific provisions to ensure that women benefit equally. In addition, there may be certain benefits that only reach women, such as pregnancy-related health services. There may also be particular groups of women that stand to benefit from social and economic rights where gender inequality intersects with other forms of discrimination and disadvantage, such as experienced by rural or older women (Goldblatt 2015). It is clear that social and economic rights cannot be regarded as gender-neutral if they are to address the multi-dimensional nature of gendered poverty.
18.4 DIFFERENT CONSTITUTIONAL RESPONSES
As noted above, social and economic rights are included in national constitutions in different ways. Often such rights are directly justiciable (enforceable by the courts) but in some instances they are aspirational (directing government policy but non-binding). However, the way in which courts approach constitutional rights may be more significant than how they are characterized in the constitutional text. Jung, Hirschl and Rosevear (2014: 1050-1) give the example of the interpretation by the courts of the right to life where, in India (Article 21 of the Constitution of India), it has resulted in material provision for the poor and where, in Canada (section 7 of Canada’s Charter of Rights and Freedoms), the Supreme Court has refused such an interpretation. This suggests a further category of national constitutions where there are no social and economic rights (whether justiciable or aspirational) but where courts nonetheless interpret civil and political rights to meet the social and economic needs of people in their countries. Additional ways in which women’s social and economic rights may flow from constitutional provisions include where constitutionally entrenched women’s rights require positive measures by the state or where constitutions require courts to interpret their country’s laws in light of their international human rights treaty commitments, hence incorporating social and economic rights via international law. These five mechanisms for claiming women’s social and economic rights via national constitutions will be illustrated below with examples from different jurisdictions. It should however be noted that these constitutional categories may overlap. For example, a constitution may have aspirational directive principles but also draw on international law to provide for gendered social and economic rights such as in India. Similarly, a constitution may contain certain social and economic rights and may also contain women’s rights as an additional or alternative source of women’s social and economic rights such as in Uganda.
While litigation concerning social and economic rights is frequently initiated by women litigants, such cases may not specifically concern gender issues. The next section discusses litigation that relates specifically to women due to their biological differences from men and the socially constructed divisions that affect their life circumstances as a group and that inform their social and economic needs and rights. While women are disproportionately subject to gender inequality, discrimination and disadvantage, men are at times also the victims of discrimination on the basis of their gender. The section also considers case law that concerns gender in relation to men’s social and economic rights.
18.4.1 Constitutions with Justiciable Social and Economic Rights
The South African Constitution is one of the best-known examples of constitutional inclusion of justiciable social and economic rights. One of the leading decisions of the Constitutional Court is the Treatment Action Campaign case concerning the rights of HIV+ women and their babies to receive nevirapine, a drug used to prevent mother-to-child transmission of HIV. The claim was based on the right to health care in the Constitution of the Republic of South Africa 1996 which states at section 27(1) that: ‘Everyone has the right to have access to – (a) health care services, including reproductive health care.’ The Constitution requires the state (at section 27(2)) to ‘take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation’ of this right. In its decision the Court recognized that the women affected were poor and would not be able to afford to purchase the medicine privately. The Court ordered the government to allow all pregnant women who were HIV+ and presented at public hospitals and clinics to access the drugs. It also required the government to develop a programme (to be realized progressively within available resources) that included ‘reasonable measures for counselling and testing pregnant women for HIV, counselling HIV-positive pregnant women on the options open to them to reduce the risk of mother-to-child transmission of HIV, and making appropriate treatment available to them for such purposes’ (para 135 (order 2b)). The Court in this case was careful to clarify the boundaries of its powers to determine cases concerning social and economic rights, and the judgment is limited in its interpretation of the gender dimensions of the right to health and reproductive health care. Nevertheless, the decision was a significant victory for the rights of the women affected and their children.
In another South African case, concerning school policy on pregnant students, the Constitutional Court ordered certain schools to review their policies requiring pregnant learners to stay away from school for the remainder of the year in which they give birth. The Court found that the policies limited the right to basic education of the learners (para 114) and violated their other rights to equality (para 113), dignity, privacy, and bodily and psychological integrity (para 115).
In a further South African case, this time in a lower court, the issue of gender and the right to social security arose. In this case a group of men challenged a law that provided the state old age pension to women at the age of 60 and men at the age of 65. They argued that this violated their right to social security and was unfairly discriminatory. The judgment of the court took a number of years to be delivered and, when it was, it found against the group of men on the basis that women as a group were more disadvantaged than men and that the government was entitled to give preference to this group. However, the political impact of the court challenge appeared to push the government to drop the pension age of men to 60 (Goldblatt and Rosa 2014: 263). In contrast, in Mazibuko and Others v City of Johannesburg and Others (2008, at  ), a case concerning the right to water, a lower court found that a city water policy discriminated against women but in appeals to higher courts this issue was not canvassed.
The Colombian Constitutional Court, also well known for strong jurisprudence giving effect to the Constitution’s justiciable social and economic rights (Landau 2014), considered the economic rights of women in a case concerning the dismissal of women from employment due to pregnancy. The case found that women had the right to employment protection for pregnancy, maternity and breast-feeding. It also found that such protections could not be denied to women in certain forms of contract work.
The Superior Tribunal of Justice in Argentina oversaw an agreement between the City of Buenos Aires and a non-governmental organization concerning the constitutional obligation to ensure and finance access to early childhood education. The decision, based on the constitutional right to education and equality and autonomy, has important implications for women requiring child care who assume much of the burden of caregiving. While the Indian Constitution contains social rights within its directive principles (discussed below), it was amended in 2002 to include a right to education (Article 21-A). In a 2012 decision by the Indian Supreme Court the government was found to have violated this right by failing to provide universal access to girls’ toilets or adequate water for sanitation within schools.
18.4.2 Constitutions with Aspirational Social and Economic
The Indian Constitution includes social and economic rights as non-justiciable directive principles that must inform governance and law making. The Indian courts have used such principles alongside international law to inform and interpret the civil and political rights in the Indian Constitution to require positive provision by the state to meet the basic material needs of people in India. The right to life (Article 21 of the Indian Constitution) has been interpreted to include the right to livelihood in the landmark case of Olga Tellis v. Bombay Municipal Corporation (1985) concerning the eviction of pavement dwellers in Mumbai. The ‘Right to Food’ case, PUCL v. Union of India & Others (2001), first brought by the People’s Union for Civil Liberties in 2001, has become the basis for ongoing supervisory litigation in the Supreme Court on a range of poverty-related matters. A number of gender issues were raised in this case. One concerned the government’s attempt to remove a social assistance payment for pregnant women and replace it with a scheme to encourage institutional delivery rather than home births. The Court required the government to continue with the social assistance scheme and also required that the scheme be better advertised and administered to reach larger numbers of poor women.
The activist courts in India sometimes initiate cases, including those concerning women’s social and economic rights. In 2011 the High Court of Delhi launched public interest litigation following a press report about a destitute woman who died on the street a few days after giving birth. The Court approached the Human Rights Law Network, a public interest law organization, to act as amicus curiae in the case to provide the Court with information on the health status of pregnant and lactating women in Delhi and to make recommendations to address their circumstances. The Court held that the right to life in the Indian Constitution requires the state to ensure a right to maternal health. Following the recommendations of the amicus regarding the need for improved implementation of food and health services by government, the Court ordered the provision of shelters in areas with high levels of homelessness and provided for the possibility of future applications for the provision of further shelters. The case led to a later application for the provision of food to pregnant and lactating women at the shelters.
A leading Indian decision concerning women’s economic rights is the case of Vishaka v. State of Rajasthan (1997). The case was brought to create a legal remedy, in the absence of legislation, for women facing sexual harassment in the workplace (Jaising 2013: 238). The Court found that sexual harassment violated women’s rights to work as well as to equality and life and liberty. The right to work in India’s Constitution is phrased in Article 19(1)(g) as the ‘freedom to practise any profession, occupation, trade or business’. The case, while highly significant for Indian women workers in the public service, did not extend protections against sexual harassment to private sector employment (Jaising 2013: 239).
18.4.3 Constitutions with Civil and Political Rights in Terms of which
Social and Economic Rights are Claimed
Civil and political rights frequently overlap with the social and economic rights of women. For example, the right to bodily integrity may require state protection of women facing domestic violence through provision of safe shelter or financial support when they are forced to leave their homes due to abuse. Similarly, protection from loss of employment as a result of maternity is both an economic right and a right to non-discrimination in the workplace. As discussed above, the right to equality is frequently enlisted to inform the development of social and economic rights and used sometimes to make constitutional claims requiring state provision of goods and services to reach women and men equally. Other rights such as privacy, dignity, religion, culture and life have also been claimed within efforts to secure women’s social and economic needs, as illustrated by the Indian case law above.
In Canada there is precedent for using the Charter’s equality right (section 15) to require state provision of necessary services in the case of Eldridge v. British Columbia (Attorney General) (1997) which required the government to fund sign language interpreters for deaf people using the health system. It was hoped that the equality right could also be interpreted to address poverty in the 2002 case of Gosselin v. Attorney General (Quebec). In this case Louise Gosselin challenged the reduction of social assistance payments for herself and other young people in terms of the right to equality as well as the rights to life and liberty. She argued that there was age discrimination in the provision of higher benefits for older people than for younger people. The case also concerned gender issues, since poverty had a particular impact on young women by forcing some into prostitution or into accepting unwanted sex to meet their material needs (Brodsky and Day 2005: 155-6). Despite a disappointing decision against Gosselin by the majority of the Supreme Court, the door was left open for the court to interpret equality to place a positive obligation on the state to sustain life, liberty and security of the person. Brodsky and Day (2005: 169) noted that in the dissenting decisions of Justices Claire L’Heureux-Dubé and Louise Arbour ‘lie some particularly useful resources for the consolidation of an understanding of equality rights as imposing a positive obligation on governments to take measures to ensure that everyone has access to a subsistence income’.
18.4.4 Constitutions with Women’s Rights that Entail Social and
As noted, a country may include specific provisions for women in its national constitution that may allow for claims to women’s social and economic rights. The Constitution of Uganda (1995), in section 33(2) says that ‘The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement’. In 2012, the High Court of Uganda at Kampala found the local government responsible for the actions of its hospital and doctor in failing to provide timely assistance to Irene Nanteza who died while waiting for obstetric care. The Court found that Nanteza’s right to basic medical care had been violated based on section 33(2) of the Constitution. It also found her rights to have been violated in terms of section 33(3) of the Constitution, which states that ‘The State shall protect women and their rights, taking into account their unique status and natural maternal functions in society’.
18.4.5 Constitutions that Incorporate Social and Economic Rights via International Law
The Indian Courts, as noted, have drawn on international human rights law to
interpret their Constitution and to protect women’s social and economic
rights. In a case concerning maternal healthcare, the Delhi High Court, in
government to meet the reproductive health rights of women, referred
to various international law treaties to which India is a
party. A case in the Netherlands
repealed a provision requiring women to contribute financially to their
postnatal care based on its determination
that certain International Labour
Organisation Conventions (ILO Convention No. 103 on Maternity Protection and ILO
102 on Social Security (Minimum Standards)) were held to
have direct effect in terms of articles 93 and 94 of the Dutch
Constitution. In a case in Benin
concerning the unfair dismissal of a woman due to her maternity-related
inability to perform certain work, the
Court drew on non-ratified international
law, effectively going further than Article 147 of the Constitution of the
Republic of Benin which provides for the supremacy of ratified treaties and
agreements over domestic
The above examples illustrate the rich and diverse jurisprudence on gender and social and economic rights around the world. A range of constitutional models require litigants in each country to develop creative arguments in support of their particular claims. As courts compare their constitutions and their jurisprudence with that of other countries and look to developments in international law, there is the potential for an expanding awareness of the nature of social and economic rights and their gender dimensions.
Where constitutions offer limited or no social and economic rights, women’s rights advocates look to other mechanisms to address gendered poverty. Human rights legislation at national, provincial and local levels may include social and economic rights. Strong equality laws may also extend their reach to areas of government provision of goods and services. Such legislation may be influenced by international law or domestic constitutional models elsewhere in the world and the jurisprudence may draw on international and comparative decisions that consider women’s social and economic rights. National human rights institutions can also play an important role in monitoring women’s social and economic rights and highlighting and opposing violations.
The challenges of globalization including increasing labour migration require a growing capacity of domestic legal systems to address the rights of non-citizens and to engage with law as it applies in multiple jurisdictions. These challenges require governments to strengthen laws that protect women’s social and economic rights. Economic crisis and policies of austerity also pose challenges to governments to ensure that women’s social and economic rights are respected and that measures do not violate principles of non-retrogression and non-discrimination. Addressing violence and its impact on women and girls’ social and economic rights is under-theorized and under-litigated and is a further challenge to those working in this area.
While constitutional rights are only one (arguably limited) mechanism, alongside many others, to achieve far-reaching social and economic change that is attentive to gender, the challenge is to extend and develop their interpretation and application in a transformative direction.
1 Collections of such writing include: Canadian Journal of Women and the Law 2002; Albertyn, Fredman and Fudge 2007; Goldblatt and McLean 2011; Goldblatt and Lamarche 2014. This literature complements the work of various United Nations treaty committees that have considered women’s social and economic rights and the work of UN mandate holders such as special rapporteurs, and the Working Group on the issue of discrimination against women in law and in practice.
 ICESCR (1966) 993 UNTS 3. It was adopted on 16 December 1966 and entered into force on 3 January 1976. On 10 December 2008, the General Assembly adopted an Optional Protocol to the ICESCR (2009) 869 UNTS 34 allowing for individual complaints to the Committee. This came into force on 10 May 2013.
 CEDAW (1979) 1249 UNTS 13. It was adopted on 18 December 1979 and entered into force on 3 September 1981.
 Although Langford 2008: 13 notes that this may not be the most appropriate understanding of obligations and that better models may evolve as comparative constitutional studies of these rights occur over time.
 'Montreal Principles on Women's Economic, Social and Cultural Rights' (2004).
 CESCR ‘General Comment No 16: Article 3: the equal right of men and women to the enjoyment of all economic, social and cultural rights’ (2005) 34th Session 2005, E/C 12/2005/4.
 CESCR ‘General Comment No 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights)’ (2009) 42nd Session 2009, E/C 12/GC/20.
 CEDAW, ‘General recommendation No. 25, on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women, on temporary special measures’ (2004) 30th Session, UN Doc A/59/38, annex I.
 Working Group on the issue of discrimination against women in law and in practice, 'Thematic Report (eliminating discrimination against women in economic and social life with a focus on economic crisis): Annotated Version (Human Rights Council (26th session), 2014) A/HRC/26/39.
 Khosa v. Minister of Social Development; Mahlaule v Minister of Social Development (Khosa) (2004).
 There are certain methodological challenges of undertaking comparative research into constitutional social and economic rights. Language has proved the major barrier and since some of the important jurisprudence is only available in Spanish I have not been able to research all relevant American decisions and have had to rely on secondary sources. There is, therefore, a bias in this chapter towards the decisions of courts that are available in English.
 In Olga Tellis v. Bombay Municipal Corporation (1985) the Supreme Court interpreted the right to life to require material provision for the poor while in the case of Gosselin v. Attorney General (Quebec) (2002), the Canadian Supreme Court refused to interpret the right to life to assist a woman facing poverty (Jung, Hirschl and Rosevear 2014: 1051).
 Minister of Health and Others v. Treatment Action Campaign and Others (No 2) (2002).
 Head of Department, Department of Education, Free State Province v. Welkom High School; Head of Department, Department of Education, Free State Province v. Harmony High School and Another (2013).
 Roberts and Others v Minister of Social Development and Others (2010).
 The European Court of Human Rights has also considered equalization of pension ages for men and women: see the cases of Stec and Others v. The United Kingdom (2006), where the court refused to equalize benefits; and the case of Taylor v. United Kingdom (1998), where the court extended benefits to men at an earlier age in line with the age women were receiving them.
 Tutela lodged individually by 33 women against various individuals and legal entities (2013) Judgment No. SU-070-13. The case is discussed on the Social Protection and Human Rights website at http://socialprotection-humanrights.org/legaldep/relevance-of-contractual-terms-to-protections-for-employed-women-who-are-pregnant-or-breastfeeding-in-colombia/. Accessed 22 February 2017.
 Settlement Agreement between ACIJ and the Autonomous City of Buenos Aires, concerning case 23360/0 of 2008, Superior Tribunal of Justice, 9 February 2011.
 Discussed by ESCR-Net at http://www.escr-net.org/node/365836. Accessed 22 February 2017.
 Environmental & Consumer Protection Foundation v Delhi Administration & Others .
 The Constitution of India (as on 1 December 2011) (2011), Government of India, Ministry of Law and Justice. The right to education was added in 2002 came into force in 2010.
22 For information on the case see the PUCL website at www.righttofoodindia.org/case/case.html. Accessed 22 February 2017. See the list of Supreme Court orders at http://www.righttofoodindia.org/orders/interimorders.html. Accessed 22 February 2017.
 PUCL v. Union of India and Others Writ Petition (C) No. 196 of 2001 with Suo Moto Contempt Petition (C) No. 128 of 2007 in W.P. (C) No. 196 of 2001 In Re: Chief Secretary State of Bihar and 4 Ors.
 Court on Its Own Motion v. Union of India (2011).
 This further litigation is discussed by ESCR-Net at http://www.escr-net.org/node/365641. Accessed 22 February 2017.
 The Center for Health Human Rights and Development & 4 others v. Nakaseke District Local Administration (2012).
 Laxmi Mandal v. Deen Dayal Harinagar Hospital and Others (2008); Jaitun v. Maternal Home (2009).
 F.M.M. C., W.P.M. B. and A.J.C. A. vs. Regional Health Insurance Foundation (1996). The case is discussed on the Social Protection and Human Rights website at http://socialprotection-humanrights.org/legaldep/application-of-international-provisions-concerning-maternal-health-in-the-netherlands/. Accessed 22 February 2017.
 Prisque Z. Hossou Djossou (represented by Cakpo-Assogba) v. Plan International Benin (represented by Alfred Pognon) (2009). The case is discussed on the Social Protection and Human Rights website at http://socialprotection-humanrights.org/legaldep/unfair-dismissal-during-protected-maternity-period-in-benin/. Accessed 22 February 2017.
 Working Group on the issue of discrimination against women in law and in practice, 'Thematic Report (eliminating discrimination against women in economic and social life with a focus on economic crisis): Annotated Version (Human Rights Council (26th session), 2014) A/HRC/26/39, para. 22.
Albertyn, Catherine, Sandra Fredman and Judy Fudge (2007), ‘Special Issue: Substantive Equality, Social Rights and Women: A Comparative Perspective’, South African Journal on Human Rights, 23(2): 209.
Brodsky, Gwen and Shelagh Day (2005), ‘Denial of the Means of Subsistence as an Equality Violation’, Acta Juridica, 149.
Davis, Dennis (2012), ‘Socio-Economic Rights’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, 1020.
Farha, Leilani (2008), ‘Committee on the Elimination of Discrimination Against Women: Women Claiming Economic, Social and Cultural Rights – The CEDAW Potential’, in Malcolm Langford (ed.), Social Rights Jurisprudence – Emerging Trends in International and Comparative Law, Cambridge University Press, 553.
Fredman, Sandra (2011), ‘Engendering Social and Economic Rights’ in Beth Goldblatt and Kirsty McLean (eds.), Women’s Social and Economic Rights: Developments in South Africa, Juta, 4.
Fredman, Sandra (2008), Human Rights Transformed: Positive Rights and Positive Duties, Oxford University Press.
Goldblatt, Beth (2016), Developing the Right to Social Security – A Gender Perspective, Routledge.
Goldblatt, Beth (2015), ‘Intersectionality in International
Anti-Discrimination Law: Addressing Poverty in its Complexity’,
Australian Journal of Human Rights, 21(1) Issue 47.
Goldblatt, Beth and Lucie Lamarche (eds.) (2014a), Women’s Rights to Social Security and Social Protection, Hart.
Goldblatt, Beth and Lucie Lamarche (2014b), ‘Introduction’, in Beth Goldblatt and Lucie Lamarche (eds.), Women’s Rights to Social Security and Social Protection, Hart, 1.
Goldblatt, Beth and Solange Rosa (2014), ‘Social Security Rights – Campaigns and Courts’, in M. Langford, B. Cousins, J. Dugard and T. Madlingozi (eds.), Socio-Economic Rights in South Africa – Symbols or Substance?, Cambridge University Press, 253.
Goldblatt, Beth and Kirsty McLean (eds.) (2011), Women's Social and Economic Rights: Developments in South Africa, Juta.
Jaising, Indira (2013), ‘Gender Justice and The Indian Supreme Court: The Post‐Colonial Project’, in Oscar Vilhena, Upendra Baxi and Frans Viljoen (eds.), Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa, PULP, 230.
Jung, Courtney, Ran Hirschl and Evan Rosevear (2014), ‘Economic and Social Rights in National Constitutions’, American Journal of Comparative Law, 62: 1043.
King, Jeff (2012), Judging Social Rights, Cambridge University Press.
Lamarche, Lucie (2002), ‘Le Pacte international relatif aux droits économiques, sociaux et culturels, les femmes et le droit à la sécurité sociale: des considérations et des propositions pour un droit ‹‹universel›› à la sécurité sociale’, Canadian Journal of Women and the Law, 14(1): 53.
Landau, David (2014), ‘ The Promise of a Minimum Core Approach: The Colombian Model for Judicial Review of Austerity Measures’, in Aoife Nolan (ed.), Economic and Social Rights after the Global Financial Crisis, Cambridge University Press, 267.
Langford, Malcolm (2008), ‘The Justiciability of Social Rights: From Practice to Theory’, in Malcolm Langford (ed.), Social Rights Jurisprudence, Cambridge University Press, 3-45.
Liebenberg, Sandra and Beth Goldblatt (2007), ‘The Interrelationship between Equality and Socio-Economic Rights in South Africa's Transformative Constitution’, South African Journal on Human Rights, 23: 335.
'Montreal Principles on Women's Economic, Social and Cultural Rights' (2004), Human Rights Quarterly, 26: 760.
Otto, Dianne (2002), ‘Gender Comment: Why Does the UN Committee on Economic, Social and Cultural Rights Need a General Comment on Women?’, Canadian Journal of Women and the Law, 14(1): 1.
Otto, Dianne (2014), ‘Gendering the Right to Social Security in the Era of Crisis Governance: The Need for Transformative Strategies’, in Beth Goldblatt and Lucie Lamarche (eds.), Women’s Rights to Social Security and Social Protection, Hart, 215.
Thiruvengadam, Arun and Gedion T. Hessebon (2014), ‘Constitutionalism and Impoverishment: A Complex Dynamic’, in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, 153.
UNRISD (2010), Combating Poverty and Inequality: Structural Change, Social Policy and Politics, UNRISD.
UN Women (2015), Progress of the World’s Women 2015-2016: Transforming Economies, Realizing Rights, UN Women.
Young, Katharine G. (2012), Constituting Economic and Social Rights, Oxford University Press.
Young, Margot, Susan Boyd, Gwen Brodsky and Shelagh Day (eds.) (2007), Poverty: Rights, Social Citizenship, and Legal Activism, UBC Press.
Brown v. Board of Education  USSC 42; 347 U.S. 483 (1954).
The Center for Health Human Rights and Development & 4 others v. Nakaseke District Local Administration, (Civil Suit No. 111 of 2012).
Court on Its Own Motion v. Union of India, W.P. 5913/2010, High Court of Delhi, 12 January 2011.
Eldridge v. British Columbia (Attorney General) (1997) 3 S.C.R. 624.
Environmental & Consumer Protection Foundation v. Delhi Administration & Others  INSC 584.
F.M.M. C., W.P.M. B. and A.J.C. A. vs. Regional Health Insurance Foundation (1996) Netherlands Administrative High Court, Judgment LJN AL0666.
Gosselin v. Attorney General (Quebec) (2002) 4 S.C.R. 429.
Government of the RSA v. Grootboom  ZACC 19; 2001 (1) SA 46 (CC).
Head of Department, Department of Education, Free State Province v. Welkom High School; Head of Department, Department of Education, Free State Province v. Harmony High School and Another 2013 (9) BCLR 989 (CC).
Jaitun v. Maternal Home, MCD, Jangpura and Others (W.P. No. 10700/2009, Delhi High Court).
Khosa v. Minister of Social Development; Mahlaule v. Minister of Social Development (Khosa) 2004 (6) BCLR 569 (CC).
Laxmi Mandal v. Deen Dayal Harinagar Hospital and Others (W.P.(C) 8853/2008, Delhi High Court).
Mazibuko and Others v City of Johannesburg and Others (Centre on Housing Rights and Evictions as amicus curiae)  ZAGPHC 491;  4 All SA 471 (W).
Minister of Health and Others v. Treatment Action Campaign and Others (No 2) 2002 (5) SA 721.
Olga Tellis v. Bombay Municipal Corporation  INSC 155.
Prisque Z. Hossou Djossou (represented by Cakpo-Assogba) vs. Plan International Benin (represented by Alfred Pognon) (2009) Benin – Cotonou Court of First Instance, Judgment No. 009/09 54-2002.
PUCL v. Union of India & Others ((Civil) No. 196/2001).
Roberts and Others v. Minister of Social Development and Others (unreported decision of the Transvaal Provincial Decision, Case No: 32838/05 (2010).
Stec and Others v. The United Kingdom (2006) 43 EHRR 1017.
Taylor v. United Kingdom (1998) EHRLR 90.
Vishaka & Others v. State of Rajasthan & Others  INSC 665.