Culture, religion and gender: an overview

• Author: Frances Raday
• Profession: Professor of Law and Elais Lieberman Chair in Labour Law, Hebrew University of Jerusalem, Israel
• Pages: 17-48

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Part II: Towards Gender Equality

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4. Culture, religion and gender:

an overview

(The original article, ‘Culture, religion, and gender’, published in the International

Journal of Constitutional Law, Volume 1, No. 4, October 2003, pp. 663–715, includes

a wider comparative analysis, which includes non-Commonwealth countries.)

Frances Raday, Professor of Law and

Elais Lieberman Chair in Labour Law,

Hebrew University of Jerusalem, Israel

Constitutional law

This article explores the intersection of culture, religion and gender in the context of

international and constitutional human rights law. The clash between religious or cultural

autonomy and gender equality is a pervasive problem for constitutional law, one that

arises in connection with claims of immunity from gender equality provisions on the

grounds of cultural or religious freedom. I will describe how the resulting conflict has

been addressed in international law and in the decisions of various constitutional courts

and propose a theoretical basis for structuring the hierarchy of values to resolve this

issue in a constitutional framework of human rights.

Human rights doctrine, as we know it today, is a product of the shift from a religious

to secular state culture at the time of the Enlightenment in eighteenth-century Europe.

The religious paradigm was replaced by secularism, communitarianism by individualism

and status by contract.

It is against this background and after the humanitarian trauma of World War II, that the

Universal Declaration of Human Rights1 was adopted in 1948, representing an under-

taking by almost all the countries of the world to establish a basic common standard

of human rights. This document expressed a vision of a new global order that guar-

anteed all individuals basic human rights and prohibited discrimination on grounds of

race, religion or sex. The human rights principles of the Declaration, which were later

elaborated in a series of human rights conventions, include the right to freedom of

religion and conscience and the right to enjoyment of one’s culture. At the same time,

1. Universal Declaration of Human Rights (UDHR), Dec. 10, 1948, UN G Res. 217 (III of

1948).

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Part II: Towards Gender Equality

these principles include women’s right to non-discrimination.2 The 1966 International

Covenant on Civil and Political Rights (ICCPR) and International Covenant on Eco-

nomic, Social and Cultural Rights (ICESCR) both included a clause guaranteeing the

enjoyment of the rights under them without discrimination between men and women.3

In 1979, the Convention for Elimination of All Forms of Discrimination against Women4

(CEDAW) codified women’s right to equality in all spheres of their lives as a global

norm. CEDAW introduced not only the right to non-discrimination but also the right to

de facto equality for women. It spelled out the way in which states parties had an

obligation to guarantee women the equal exercise and enjoyment of human rights, and

it imposed on these states the obligation to take all appropriate measures to achieve

this without delay. CEDAW has been ratified by 186 countries and, in 2001, the Optional

Protocol (OP)5 came into force allowing individual women in states parties that ratify

the

OP to bring communications before the CEDAW Committee. Most countries have

now endorsed the principle of equality for women and endowed it with normative

universality.

The question I pursue here is what solution is provided under this international regime

of human rights and under national constitutions, in cases where equality rights clash

with cultural practices or religious norms? Such conflicts arise in the context of almost

all religions and traditional cultures, since they rely on norms and social practices

formulated or interpreted in a patriarchal context at a time when individual human rights

in general, and women’s right to equality in particular, had not yet become a global

imperative. Barriers to women’s rights are not specific to one region or to one religion,

but their form and severity does vary among regions and religions. The clash between

culture or religion and gender equality rights has become a major issue in the global

2. Human rights were, from the 1950s, specifically and gradually extended to women through

International Labour Organization (ILO) conventions and by consensus among governments,

employers, unions in the field of employment and through UNESCO conventions in the

field of education.

3. International Covenant on Civil and Political Rights, Dec. 19 1966, art. 2(1), General

Assembly (GA) Res. 2200A (XXI), UN General Assembly Official Records (GAOR), 21st

Sess., Supp. No. 16, UN Doc. A/6316 (1966), 999 UN Treaty Series (UNTS) 171, 173

(entered into force Mar. 23, 1976); International Covenant on Economic, Social and Cultural

Rights, Dec. 16, 1966, art. 3, GA Res. 2200 A (XXI), 21 UN GAOR Supp. (No. 16) at

49, UN Doc. A/6316 (1966), 993 UNTS 3, 5 (entered into force Jan. 3, 1976).

4. Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979,

GA Res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46, 1249 UNTS

12 (entered into force Sept. 3, 1981).

5. Optional Protocol on the Elimination of Discrimination against Women, GA Res. 54/4,

annex, 54 UN GAOR Supp. (No. 49) at 5, UN Doc. A/54/49 (Vol. I) (2000) (entered into

force Dec. 22, 2000).

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arena. It is probably the most intractable aspect of the confrontation between cultural

and religious claims and human rights doctrine.

Both cultural practices and religious norms have been frequently invoked, in interna-

tional and constitutional law contexts, as a form of defence in order to oppose gender

equality claims. In legal discourse, judicial proceedings and academic literature, cultural

and religious values are usually raised separately without reference to each other and

with differences of approach and emphasis. The concept of the cultural defence is well

known, while religious claims, in opposition to human rights standards, are commonly

made under the umbrella of freedom of religion. Indeed, in the two international

conventions in which the clash is expressly regulated, one relates to culture and the

other to religion. CEDAW regulates the conflict between ‘cultural patterns of conduct’ or

‘custom’ and gender equality,6 whereas the ICCPR regulates possible conflict between

‘the freedom to manifest one’s religion or beliefs’ and ‘the fundamental rights and

freedoms of others,’7 including implicitly the right to gender equality.

I will first define the three constructs – culture, religion and gender – and describe the

nature of the conflict between them. I will then analyse current international and

constitutional regulation of the clash. Finally, I will critique the current positivist ap-

proaches in the context of a theoretical framework for balancing the divergent norms.

Constructs: culture, religion and gender

Although culture, religion and gender are foundational social constructs operating at the

basis of social psychology and organisation, the three constructs cannot be placed,

separately and equally, on the same level. Culture is a macro-concept, which subsumes

religion as an aspect of culture. Culture and with it religion are the sources of the

gender construct. Thus, as I will show, religion is derived from culture, and gender is,

in turn, derived from both culture and religion.

Culture

Culture is a macro-concept because it is definitive of human society. Anthropologists

commonly use the term ‘culture’ to refer to a society or group in which many or all

people live and think in the same ways. Similarly, any group of people who share a

common culture – and, in particular, common rules of behaviour and a basic form of

social organisation – constitute a society. As Adam Kuper puts it, ‘[i]n its most general

sense culture is simply a way of talking about collective identities’.8 Two categories of

6. CEDAW, supra note 4, art. 5, 1249 UNTS at p.16.

7. ICCPR, supra note 3, art. 18(3), 999 UNTS at p.179.

8. Adam Kuper (1999) Culture: The Anthropologists’ Account. Harvard: Harvard University

Press.