Principles of equality between women and men & Non-discrimination on the basis of sex

The two human rights principles of equality between women and men and non-discrimination on the basis of sex are basic principles of human rights dating back, at least, to 1948. Neither of these principles is a new or recent concept in human history. They were never nor are they now being imposed or forced on The Bahamas and Bahamian citizens in 2002 or 2014.

We as citizens of The Bahamas post Independence (1973) enthusiastically and proudly accepted our status as a sovereign nation, a member of the Commonwealth of Nations (1973), the United Nations (1973), Organisation of American States (1982) and the Caribbean Community (1982). As a member of each of these entities we have rights, privileges, responsibilities and obligations. Our successive Governments freely committed our country and all of us as citizens to being an integral and significant part of the collective progress and advancement of human beings and nations throughout the world. These two principles of equality between women and men and non-discrimination on the basis of sex were, therefore, not forced on us by any external body. We affirmed the principles and are now being called on to redress through constitutional reform the historical inequalities that have disadvantaged Bahamian women. I take very seriously our national commitment with its attendant rights and responsibilities. As citizens of The Bahamas, it is really our privilege and duty to be participants on this journey towards the further development of our country domestically, regionally and internationally.

These two human rights principles both gained wide acceptance in the post WWII climate when human beings the world over including citizens of the colony of The Bahamas (under the international leadership of persons such as Churchill, Roosevelt and local leaders such as Mary Ingraham, Georgiana Symonette, Mabel Walker, Eugenia Lockhart, Dr. Doris Johnson, Althea Mortimer, Milo B. Butler, Dr. C. R. Walker, A. F. Adderley, Henry M. Taylor, Cyril Stevenson, William Cartwright, Dr. H. W. Brown, Randol Fawkes, Lynden Pindling, Cecil Wallace Whitfield, Arthur Foulkes, to name a few) declared and vowed to affirm, amongst other things, the self determination of nations and the fundamental rights and freedoms of all persons without distinction as to race, colour or sex.

Prior to WW II the issue of human rights, decolonisation, racial discrimination and equality of economic opportunity was ably promulgated by the Pan African Congress as early as 1900 in London. This movement was led by persons such as Dubois, Ida Gibbs Hunt, George Padmore, Nkrumah and Kenyatta. Marcus Garvey through the establishment of the Universal Negro Improvement Association in 1914 was also a proponent of civil rights and economic opportunity for disenfranchised black people in Africa and the Caribbean.

The general principles of equality between women and men (gender equality) and non-discrimination on the basis of sex are fundamental elements of international human rights law. The principles are specifically included in the United Nations Charter of 1945 and the United Nations Universal Declaration of Human Rights of 1948. Further, the

same principles are set forth in the American Declaration of the Rights and Duties of Man of 1948 as drafted by the

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Organisation of American States (OAS). Both Declarations have similar wording in regard to the two principles.

The preamble of the United Nations Charter states as follows:

We the peoples of the United Nations determined, inter alia,

To re-affirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women, and of nations large and small.

The United Nations Universal Declaration of Human Rights provides as follows:

Article 1: All human beings are born free and equal in dignity and rights.

Article 2: Everyone is entitled to all the rights and freedom set forth in this declaration without distinction of any kind such as race, colour or sex, language, religion,, political or other opinion, national or social origin, property, birth or other status.

Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

It is instructive for all of us as Bahamians to know that the leaders of the Women’s Suffrage Movement used the same Human Rights Declaration of 1948 to advance not only the right to vote for women but also other civil liberties and political rights in the 40s, 50s & 60s. Further, In their public education advocacy on citizenship in a democracy, they made specific references to a) the Magna Carta of 1215; the British Bill of Rights of 1689; c) the American Declaration of Independence of 1776; d) the Atlantic Charter of 1941 of Churchill and Roosevelt that laid the predicate for the establishment of the United Nations post WWII; and e) Churchill’s Iron Curtain speech (Sinews of Peace) of 1946. They also referred to the writings of John Locke, John Milton and Sir Edward Coke as planks in the establishment of principles of fundamental rights and freedoms in a democracy.

Further, this Universal Declaration of Human Rights was/is the basic document used to shape and develop the fundamental rights and freedoms of our Constitutions in the Caribbean and other Commonwealth Countries.

The principles of equality between women and men and non-discrimination on the basis of sex are also guaranteed in the International Covenant on Civil and Political Rights of 1976 and the International Covenant on Economic, Social and Cultural Rights of 1976. Both Covenants also include a general non-discrimination article, which includes “sex” among the prohibited heads of differential treatment. This non-

discrimination norm is also found in the UN Convention on the Elimination of All Forms of Racial Discrimination of 1969 and the Convention on the Rights of the Child of 1990. The non-discrimination principle is elaborated fully in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) of 1979.

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Under these Conventions, discrimination on the basis of “sex“ is prohibited and equality between women and men in the enjoyment of rights set forth in the Conventions is guaranteed.

On May 7, 2009 the Bahamas ratified the UN International Covenant on Civil and Political Rights of which Article 3 provides for equality between women and men in the area of civil, political, economic, cultural and social rights. Article 26 of this Convention also provides for equal protection of the law and prohibits discrimination on the basis of sex. On December 23, 2008, the Bahamas ratified the UN Covenant on Economic, Social and Cultural Rights that also addresses the issue of equal rights between women and men and non-discrimination on the basis of sex.

In addition, The Bahamas has ratified the OAS Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women of 1994 (aka the Convention of Belem do Para). This Convention based on the Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man also affirms the principles of equality between women and men and the principle of non-discrimination on the basis of sex. The Bahamas has not yet signed the OAS American Convention of Human Rights of 1969 that also affirms these two principles.

At least two UN Conventions and an Inter-American Convention require that The Bahamas expedite constitutional reform in regard to equality between women and men and non-discrimination on the basis of sex. The Bahamas conceded to CEDAW in 1993, the last Caribbean country so to do and the Convention of Belem do Para on Violence Against Women in 1995. We are, therefore, obligated and bound to amend the Constitution and laws to grant women formal equality with men in areas such as the conferment of citizenship on spouses and children.

This Constitutional Reform is a national obligation to which The Bahamas, as a member State of the United Nations, the Organization of American States and CARICOM, has committed itself as a result of the ratification of specific international and regional Conventions, Declarations or Platforms of Action. The State, ie, The Executive and the Legislature, has a duty and obligation to remediate the inequality and discrimination in regard to women and men that persist in our Constitution. We, the Bahamian electorate, have a duty and obligation to correct the inequality and discrimination in regard to women and men that persist in our Constitution on Thursday, November 6.

Article 1 of CEDAW defines discrimination as follows:

The term ‘discrimination against women’ shall mean 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 and any other field.

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Article 2 provides, in part, that:

States Parties condemn discrimination against women in all its terms, and agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle.

The Convention of Belem do Para Article 6 states as follows:

The right of every woman to be free from violence, includes among others:

The right of women to be free from all forms of discrimination; and

The right of women to be valued and educated free of stereotyped patterns of behaviour and social practices based on concepts of inferiority or subordination.

Article 15 of The Bahamas Constitution declares and affirms the existence of fundamental rights and freedoms for the individual in regard to race, place of origin, political opinions, colour, creed or sex. Article 26 of The Constitution must then be amended to include “sex” as one of the prohibited grounds of discrimination. The prohibited grounds under Article 26 are as follows: race, place of origin, political opinions, colour or creed. This amendment to Article 26 would not only bring it in alignment with Article 15 but would comply with the demands of the Conventions ratified in this regard.

Non-discrimination on the basis of sexual orientation refers to different treatment on the basis of an individual or group’s sexual preference. This issue is not a part of the current Constitutional reform and amendments. It does not appear in the Bills before the House of Assembly nor is it a part of the referendum before the electorate on Thursday, Nov. 6. If one reads the Report of the Constitutional Commission and its Recommendations of 2013, the issue of same-sex marriage never arose as a question to be considered and is defiitively not a recommendation that is before the Bahamian electorate today.

The Constitution of South Africa, for example, provides in section 9 for equality before the law and freedom from discrimination. The prohibited grounds of discrimination are race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, conscience, belief, culture, language and birth. One can clearly see that there is a distinction between the prohibited grounds of ‘sex’ and ‘sexual orientation’. The principle of non-discrimination on the basis of sex is a different principle than that of non-discrimination on the basis of sexual orientation or sexual preference.

The insertion of the word ‘sex’ in Article 26 of the Constitution, in my view, does not equate with same-sex marriage as some are stridently proposing. I bring to our attention that

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section 6 of the Employment Act Ch. 321A of 2006 in regard to non-discrimination and equal pay for equal work promotes the principles of equality of women and men and non-discrimination on the basis of sex as follows:

No employer or person acting on behalf of an employer shall discriminate against an employee or applicant for employment on the basis of race, creed, sex, marital status, political opinion, age or HIV/Aids.

To my knowledge there has not been opposition to the use of the non-discrimination principle on the basis of sex in this Act.

Finally, the legal and binding obligations of The Bahamas under the UN & OAS Conventions, nothwithstanding, it is my view that we as Bahamian citizens have a moral obligation to implement the principles of equality between women and men and non-discrimination on the basis of sex. In plain language, we owe this debt to: the enslaved women and men who fought for their/our rights and freedoms; women and men of the Suffrage Movement; women and men who helped to found and sustain the Progressive Liberal Party; the trade union women and men of the General Strike of 1958; the women and men of Black Tuesday; women and men of the United Bahamian Party who supported the enfranchisement of the black majority; women and men of the Free National Movement, the Democratic National Alliance and the Progressive Liberal Party who believe deeply in the growth and progress of our country and its capacity to be a leader regionally and internationally; women and men of all faiths and creeds in The Bahamas; women and men involved in the human rights movement; women and men of The Bahamas, in general; and young women and men of The Bahamas, in particular; and future generations.

It was a political error in 1972 not to entrench the principles of equality between women and men and non-discrimination on the basis of sex in our Constitution. The time is at hand for us to correct the mistake. On Thursday, November 6, we are being asked to affirm the two principles of equality between women and men in regard to the conferment of citizenship to spouses and children and that of non-discrimination on the basis of sex, ie,

non-discrimination as a woman (female) or man (male), nothing more and nothing less. This historical moment is in our hands.

Marion Bethel

Nassau, Bahamas

August 16, 2014