The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) has been described as the international bill of human rights for women. CEDAW is the only international treaty exclusively devoted to eliminating gender-based discrimination and promoting gender equality.
CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms, in the political, economic, social, cultural, civil or any other field.”
This definition must be read as inclusive of all women and extend protection to women who experience discrimination and violence based on their sexual orientation, gender identity/expression and/or sex characteristics (SOGIESC).
Over the last decade, the CEDAW Committee, an expert body that monitors implementation of the Convention, has shown an increasing willingness – either explicitly or implicitly – to address the human rights of lesbian, bisexual, transgender and intersex (LBTI) people as seen in General Recommendation 27 and General Recommendation 28. However, in most instances, the Committee mentions LBTI persons in relation to the issue of intersectionality or in a list of particularly disadvantaged or vulnerable groups of women rather than the unique lived experiences of LBTI persons.
It should be noted that CEDAW Committee’s willingness to engage with LBTI rights is often based on the state reporting process in itself: often when State parties fail to mention the rights (or lack thereof) of LBTI people in their periodic reports, the Committee only makes recommendations for women and girls (without focusing on LBTI persons). For some countries, the Committee has invoked other international instruments or brought up the human rights of LBTI people without a nudge from the state or civil society submissions. Overall, the CEDAW reporting process is often based on a binary understanding of gender as reflected in the Convention itself: “obligation [is] to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights.”
Most of the Committee’s Concluding Observations continue to serve this purpose of maintaining equal rights between men and women, often following a narrow and exclusionary definition of women that excludes LBTI persons. That being said, in the recent past the Committee has been especially receptive to LBTI rights claims, and the terms ‘woman’ and ‘gender’ have expanded to include SOGIESC.
Given that there is no legally binding international instrument that could obligate states to recognise and protect the human rights of LBTI persons, it is crucial that advocates of these rights strategically engage with CEDAW. This is especially important considering that State parties to the Convention are bound by the treaty to comply with certain legal obligations. Some of those obligations include, but not limited to, abolishing criminalisation of consensual same-sex relations among adults, and enacting laws and policies that explicitly recognise and protect the rights of LBTI persons from any forms of discrimination and violence.
The strategic engagement with CEDAW will also allow for the opening up of the international community towards a more nuanced and enlarged understanding of human rights. The CEDAW Convention is known to be a dynamic instrument that can and should be interpreted in a way that is responsive to current challenges, needs, and developments.
It is with this understanding that Kaleidoscope Trust and the invited consultant, Deya Bhattacharya, developed a database that provides advocates of LBTI rights with information on how to use CEDAW and what potential it presents for their advocacy efforts in their domestic contexts. The database also stands to assist advocates in engaging with the CEDAW review process and influence CEDAW Committee’s perspectives on SOGIESC-based discrimination thereby helping them to positively develop the interpretation of CEDAW. The Tracker was presented to and discussed with diverse civil society organisation leaders during Kaleidoscope Trust’s Share and Connect workshop in Bangkok in March 2023.
The database was developed under the Commonwealth Equality Project funded by the UK Foreign and Commonwealth Development Office (FCDO).
Cite GR 27, 28
Article by Rikki Holtmaat, ‘Enhancing LGBT rights by changing the Interpretation of CEDAW?’, 2015
ILGA World: Treaty Bodies Report, 2018
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