Minority and Indigenous Women's Human Rights: Complexities and Challenges, Exercises of Human Rights

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Why focus on

minority and

indigenous women?

Kathryn Ramsay

Why focus on minority State of the World’s Minorities 15

A Batwa woman is raped by a non-Batwa man because he believed a local myth that sex with a Batwa woman cures backache; a Roma woman complains to the authorities about domestic violence she suffered and is criticized by Roma men for giving the authorities another reason to attack the community; a pregnant Dalit woman is forced to give birth in the street because the doctors refused to admit a Dalit to hospital; a Pastoralist woman candidate in local elections is told by other women in her community to run for councillor because being a Member of Parliament is too big a job for a woman; a Muslim girl is sexually assaulted by majority boys in her class who targeted her because as a member of a minority, they thought she would be less likely to report them than a girl from their community ….

T

hese examples show the complexity of the multiple problems facing minority and indigenous women. They may face discrimination and violence from majority commu- nities and from within their own community, and often cannot get access to the justice and support services to which they are entitled. But minority and indigenous women are not only passive victims of violations of their human rights. As discussed in the thematic articles and regional and country updates included in this year’s State of the World’s Minorities and Indigenous Peoples , many are actively fighting for their rights as women, for the rights of their communities and for their rights as minority or indigenous women. And by challenging the status quo – both in terms of acceptable gender roles, as well as confronting the discrimination that they face as members of minorities – many face difficulties or violent reprisals from the majority community, or even from within their own families. Minority and indigenous women are entitled to all human rights – civil, political, economic, social and cultural – as set out in various universal and regional legal instruments, such as the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). As women, they are entitled to specific rights on the basis of their gender, such as those included in the Convention on the Elimination of All Forms of Discrimination Against Women, or in regional instruments such as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in

Africa. As members of minorities and indigenous peoples, they are also entitled to minority rights and indigenous rights, set out in relevant United Nations (UN) Declarations (UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities [UNDM] and UN Declaration on the Rights of Indigenous Peoples [UNDRIP]) and regional instruments. These instruments recognize the unique (and frequently more vulnerable) situations of minorities and indigenous peoples, and provide additional guarantees to ensure they can enjoy their human rights equally with others. The problems experienced by minority and indigenous women have many strands, and initially may seem complex, with tensions between different rights. One example of this tension is that between the rights of minorities and indigenous peoples to maintain their cultural identity and practise their culture, and the rights of women to be free from harmful cultural practices, such as female genital mutilation and child marriage. In such instances, it is essential to remember that minority and indigenous cultures are not homogeneous, and harmful practices that are presented as integral to the cultural identity of a minority group may not necessarily be supported by every member of that group. It is highly likely that there will be women within the community who are challenging them. In other cases, tension may emerge over prioritization of which rights to fight for first. For instance, leaders of an ethnic minority community suffering from entrenched discrimination may prioritize securing rights for the community and ending ethnic discrimination, before looking at gender discrimination affecting minority women. This may also be the case where minority women have taken part in wider social movements or armed struggles, as discussed in the chapter on conflict included here. Minority and indigenous women may face gender-based discrimination and violence in common with women from majority communities, and they may face discrimination because of their minority or indigenous identity, shared with minority and indigenous men. Moreover, discrimination on the basis of minority or indigenous status may work together with or intersect with gender-based discrimination to result in unique disadvantages for minority and

Why focus on minority State of the World’s Minorities 17

Identity

The issue of the rights of minorities and indigenous peoples to maintain and develop their identity and cultural practices, versus the individual rights of members of those groups to be free from harmful cultural practices, is often highlighted as a problem for the concept of human rights. In many cultures

• indigenous, minority and majority – women have primary responsibility for raising children, including teaching them about the culture. In effect they become the custodians of cultural traditions and are viewed as such by other members of their communities. For example men may no longer wear traditional clothes every day, whereas women may do so. This means that tensions associated with cultural practices are more likely to affect women and girls. This can be the case if restrictions and pressure limiting rights to cultural expression in this way come from the state or from the majority population. But it can also be the case when women from within a particular group question what they see as an obligation to follow certain practices or styles of dress, in their capacity as ‘cultural custodians’. States have an obligation under human rights standards to protect women and girls from cultural practices which violate their rights, whether they are carried out by a majority or minority. It is important to remember that harmful cultural practices are not only found in minority or indigenous communities. The main minority rights standard, the UNDM, provides guidance on how this can be balanced with the right of minorities to cultural identity. The UNDM, although not legally binding, was adopted by consensus at the UN General Assembly, which means that no state objected to its contents. The UNDM grants minorities the right to protect and develop their culture except under two named circumstances. These are: when specific practices are ‘contrary to international standards’, and where they are ‘in violation of national law’. The first provision, ‘contrary to international standards’ means states are required to prohibit practices which also contravene standards such as those set out in the Convention on the Elimination of All forms of Discrimination Against Women or the Convention Against Torture (for example early marriage or female genital mutilation [FGM]). The second provision, ‘in violation of national law’, is more problematic. The provision would be rendered meaningless if

states could adopt any law they wished against any cultural practice of minorities. Prohibitions must be based on reasonable and objective grounds. States may not use the existence of a harmful cultural practice as a reason for prohibiting a range of cultural actions or a whole culture. Restrictions must relate only to the specific harmful practice. States must also not act in a discriminatory manner either, for instance focusing on eradication of early marriage in a minority community but ignoring the same practice in a majority community. For governments that are keen to meet their legal obligations to uphold both the rights of women and those of minorities, getting this balance right can be a difficult task. In a case study included in the Southern Africa update, this is discussed in the context of the South African government’s approach to certain Zulu cultural practices that are harmful to women. Legislation is necessary to restrict the specific harmful practice; however, it is not sufficient to ensure the practice is ended, especially if sections of the community are against the measures. For example, a number of states have laws which set a minimum age for marriage or prohibit FGM, but early marriage or FGM still occur. The most effective methods for the eradication of harmful practices require cooperation from the affected community. Cooperation is more likely when measures to be taken to eradicate the harmful practice are seen to be non-threatening to the overall cultural identity of the community. Minority or indigenous communities that have experienced systematic discrimination or marginalization may perceive legitimate state concern over a particular harmful cultural practice as another attack on them. However, no culture (minority or majority) is homogeneous or unchanging, and even where there may be a negative reaction from community leaders (who are often men), there may be others within the community who are already working to eradicate the practice. Many minority and indigenous women (and men) who reject harmful cultural practices and/or work to eradicate them frequently face criticism, hostility or outright violence from others in the community (both men and women). They may be accused of aiding the destruction of their community identity because they are willing to see a cultural practice change, or of giving the government and the majority another reason to

Why focus on minority State of the World’s Minorities 18

attack them by airing internal community issues in public. Arguments used are often that the rights of the community need to be prioritized and secured first; once that has been achieved, other areas, such as women’s rights can be addressed. The implication of this argument is that women’s rights are less important and can be left until later. However, the opposite argument also holds: failure to address the rights of women within a community undermines overall efforts to hold governments to account for securing the rights of the community. State efforts to eliminate a harmful practice are more likely to be effective if they work with those in the community already engaged in its eradication, or sympathetic to their aims, to design a culturally relevant approach which includes addressing the reasons for the opposition within the community. It is important that such support allows community activists to take the lead, and does not put them in a position where they may face further hostility for receiving assistance and money from ‘outside’.

Participation

In many countries, minority and indigenous women are under-represented in state decision-making processes at both national and local levels. They may also face difficulties or restrictions in exercising their political rights, such as their right to vote. For example, women from linguistic minority or indigenous communities may be less fluent in the language used in political life than minority or indigenous men, making it more difficult for them to access information about electoral processes, understand the positions of different candidates and make an informed choice. They may also be pressurized into supporting the candidate chosen by their family or others in the community. Those minority or indigenous women who would like to take part in such processes, or stand for elected office, may face criticism from within their own communities or their family for overstepping the boundaries of acceptable gender roles by trying to enter the ‘male’ world of politics, or scepticism at their ability to take on such roles. Political parties may refuse to have them stand as candidates, fearing that a minority or indigenous woman would be likely to lose the election. Where they do stand for election they may face prejudice from the electorate regarding their ability as women to assume leadership positions, compounded by negative bias

on the basis of their ethnic or religious identity. Practical barriers may also present themselves, such as lack of access to funding to support their campaigns and, as with majority women, difficulties of balancing the demands of their office with child care and domestic work may hinder them (seldom a consideration for male elected officials). In the face of these obstacles, it is perhaps not surprising that where parliamentary or local assembly quotas on the basis of ethnicity have been introduced, minority and indigenous women have not always benefited significantly; likewise, gender quotas have also not necessarily resulted in an increase in the numbers of women from minority and indigenous communities in elected office (as discussed in the Americas update, in the context of the low numbers of indigenous women in political office in the region). Few quotas relate directly to minority or indigenous women’s participation. Even where quotas do lead to minority or indigenous women taking up governance positions, they may face additional barriers to exercising the role effectively. They may have been selected to fill the quota without understanding what the position means or to be a proxy for a male from their community or the majority. They may face discrimination from other elected officials who do not allow them to fulfil their duties, or a backlash if they are perceived to be ‘too effective’. In the Indian context (as mentioned in the South Asia update), in 2010 this led to calls for a ‘quota within a quota’ at the national level for Dalit and religious minority women. Minority and indigenous women are frequently also under-represented in traditional community decision-making processes or leadership structures, which can help to perpetuate gender-based discrimination against them (for instance in regard to community-level decisions relating to land rights or inheritance). This also means that they are seldom called upon to represent the community to outsiders. When governments want to find out what a community thinks about an issue or policy, they frequently look for representatives or community leaders to speak to. These are men. Often it may not be clear how these ‘representatives’ became spokespersons for the community or how representative their views are of the community as a whole. Even where there are calls to increase the participation of women, for example in conflict resolution and peace-building, minority and