Extended read: The Great Regression

Last month, I wrote a feature article on the global backlash against gender equality for the International Bar Association's Global Insight business and human rights law magazine. It drew heavily on then-recent news about a constitutional tribunal ruling that would ban the majority of abortions in Poland. The ruling has just come into effect, coinciding with the news that a full abortion ban has been locked into the constitution of Honduras. It looks like the Honduras ban will be almost impossible to fight or overturn through legislation or through the courts, putting women's lives in danger.

There is some hope - Argentina has legalised abortion up to the 14th week of pregnancy, and the Biden administration has rescinded the US's Global Gag Rule, which had banned funding for overseas organisations that provide abortion among their reproductive healthcare provisions.

In light of these developments, it seems like a good time to share the extended version of the feature that the International Bar Association published a month ago. The original version can be found here, and the extended piece is below. It's a long read, so grab a cup of tea and get comfy.

The Great Regression

‘This is war’, they declared, with chants and banners, marching on the Church, the government, the streets. The silhouette of a woman’s face, with a red lightning strike across it, often held high next to a clothes hanger and the words ‘never again’.

Despite the Covid-19 pandemic and corresponding restrictions on large gatherings, women in Poland have come out in force to protest against a Constitutional Tribunal ruling that would ban most abortions is the largest demonstration the country has seen in decades. The protests are led in part by the Women’s Strike movement, which successfully demonstrated against a total abortion ban in 2016, but has been joined by other groups frustrated with the government, its assault on democratic institutions and its handling of the pandemic.

Poland’s Deputy Prime Minister, Jaroslaw Kaczynski, has called the protests an attempt to ‘destroy’ Poland and urged people to ‘defend’ the nation and the Catholic Church. But the women are not waging war. They are taking a stand, as many women have had to, against a deadly campaign that has wrought havoc on their rights, protections and freedoms.

Milestone or millstone

2020 was supposed to be a landmark year for gender equality. Twenty-five years ago, a ground-breaking blueprint for advancing women’s rights was agreed by representatives of 189 governments at the United Nations Fourth World Conference on Women.

The unprecedented Beijing Platform for Action and Declaration encapsulated comprehensive commitments in 12 key areas. Unfortunately, despite these commitments securing 274 legal and regulatory reforms in 131 countries, there is much work yet to be done.

Women still only have 75 per cent of the legal rights of men worldwide, and many laws continue to be discriminatory. Women are still excluded from decision-making processes, climate talks and peace negotiations, while men make up 75 per cent of parliamentarians. As UN Secretary-General António Guterres lamented recently, ‘women continue to have to fight for their voices to be heard, despite the mountain of evidence on the correlation between women’s participation and the sustainability of peace’.

The world is also missing out on the $172 trillion in human capital wealth that the World Bank estimates closing the gender pay gap would generate. But with labour force participation stagnant at 31 percentage points over the past 20 years, the pay gap may persist for another 150 years. And women’s lives are consistently under threat through restricted healthcare and gender-based violence.

In 2020, the Covid-19 pandemic is threatening to wipe out decades of limited gains. In Justice for Women Amidst COVID-19, a joint report with other organisations, UN Women warn that the pandemic ‘will push back fragile progress on gender equality, including in relation to reversing discriminatory laws, the enactment of new laws, the implementation of existing legislation, and broader progress needed to achieving justice for all’.

This rolling back of progress is set to affect every sector and generations of women, and many governments have done little to stop this gendered impact.

An April 2020 UN Policy Brief highlighted that ‘women will be the hardest hit by this pandemic but they will also be the backbone of recovery in communities. Every policy response that recognizes this will be more impactful for it’.

Yet, despite women making up the majority of frontline healthcare workers, less than one in five labour market and social protection measures enacted during the pandemic have been gender-sensitive, according to the UN Women report Gender Equality in the Wake of Covid-19 – Insights to Action. This oversight is costing women their livelihoods and their lives.

Gendered impact

The UN predicts that 47 million women and girls will be pushed into extreme poverty in 2021 and that by 2030 the poverty gap will see 121 women aged 25-34 living in extreme poverty for every 100 men. This will in part be due to the fact that worldwide, more women (740 million globally) than men work in the informal sector, where there is a lack of social protections, and in Sub-Saharan Africa and Latin America, informal workers have lost an average of 81 per cent of their income.

As education institutions have shut down through the pandemic and many girls facing a lack of digital resources, girls’ opportunities to break cycles of poverty and disrupt gender norms have been curtailed. Many girls will never return to school.

Guterres warned that ‘In some villages in Sierra Leone, school enrolment rates for teenage girls fell from 50 to 34 percent after the Ebola epidemic, with lifelong implications for their wellbeing and that of their communities and societies.’ After Ebola, men’s economic activity rebounded quickly while women’s did not. And Covid-19 has hit far more countries than Ebola.

When girls’ education is disrupted, they are at greater risk of having their rights violated and their future opportunities limited. Child marriage, a human rights violation and practice criminalised in most countries, has surged during Covid-19. Many parents without sufficient state support to combat pandemic-induced financial crises found themselves with limited options to ensure their family’s survival. Ahead of the pandemic, globally one in five girls is married or ‘in union’ before turning 18, a rate that increases to 40 per cent in developing countries. Now, due to the pandemic, an additional 13 million child marriages will take place that otherwise would not have occurred between 2020 and 2030.

The loss of education for girls in many countries won’t just perpetuate cycles of poverty. It will endanger their lives. With child marriage on the rise and access to sexual and reproductive healthcare limited, a rise in adolescent pregnancies is expected, and complications from pregnancies and childbirth are already the leading causes of death for adolescent girls globally.

In June, the World Health Organization reported that even a ten per cent reduction in sexual and reproductive health services could lead to 29,000 additional maternal deaths within just 12 months. In Azerbaijan, 60 per cent of women have faced difficulty accessing gynaecological and obstetric care during the pandemic.

Many governments did not class sexual and reproductive healthcare as essential to continue through the pandemic, leaving some women and girls facing a lack of bodily autonomy more akin to the 1900s, unable to access abortion or birth control. In the US, travel restrictions meant that women whose access was restricted in their state would drive to other states only to find they were blocked on arrival.

Covid-19 has also turned back the clock on many women’s economic opportunities. Before Covid-19, women were on average already undertaking three times more unpaid care and domestic work than men worldwide, with long-term consequences for their economic security. UN Women reports that in general, ‘increased unemployment tends to encourage people to go back to traditional gender roles: unemployed men are favoured more heavily in the hiring process when jobs are scarce, while unemployed women take on more household and care work’.

Winnie Wan Chi Tam, Diversity and Inclusion Officer of the IBA Asia Pacific Regional Forum, emphasises that access to childcare has been key to enabling women in Hong Kong to participate in the workforce pre-pandemic. Yet, in the United Kingdom, one report declared women the ‘sacrificial lambs’ of the country’s economic contraction, with 51 per cent lacking the necessary childcare to enable them to work.

Globally, the International Labour Organization estimates that women’s employment is 19 per cent more at risk than men’s, and the UN says 25 per cent of self-employed women have lost their jobs compared to 21 per cent of their male counterparts.

War on women

The transition to home-working and lockdowns have also contributed to a ‘shadow pandemic’ of gender-based violence, including domestic violence and femicide. Back in February, Guterres noted that ‘In some parts of the world, levels of femicide – the killing of women – could be likened to a war zone.’ But few governments were prepared with plans to tackle this foreseeable side effect of lockdowns shutting people inside with their abusers.

Catalina Santos, officer of the IBA Latin American Regional Forum, highlights reports of a 20 per cent increase of femicide in Latin America this year. Yet, when Mexico saw more women murdered in April 2020 than any other month on record, the government prioritised the economy over women’s lives and cut budgets of women’s shelters.

Access to justice for these crimes was already bleak. Before the pandemic, civil society organisations and the UK’s Victims Commissioner decried the abysmal prosecution rate for rape in England and Wales, arguing rape had essentially been decriminalised – only 1.5 per cent of reported cases resulted in a conviction in 2019.

Santos highlights barriers to reporting abuse or femicide, which contribute to underreporting in many countries. She says, ‘Latin American culture, historically a male culture, has managed to normalize or tolerate these situations, and this is the reason why women are afraid to go to the authorities. Even in those cases where women have reported gender violence or aggression, in many cases there is impunity or penalties that are not severe enough’.

There are huge gaps between international standards and the realities of women and girls in many countries, and in Europe only eight jurisdictions had consent-based definitions of rape in 2018. Most jurisdictions still require evidence of violence or intimidation, and some reduce sentences for young, white perpetrators compared to ethnic minority perpetrators, and for ‘honour’ crimes.

As Sascha Gabizon, Director of Women Engage for a Common Future, told the UN general assembly’s Beijing anniversary virtual event, ‘Gender based violence and discrimination are systemic, growing out of colonialism, slavery and patriarchal traditions’, highlighting the particular impact on people of colour, Dalits, sex workers, people with disabilities and gender non-conforming persons.

The normalisation of this systemic violence and discrimination, the lack of legal protections for women and a failure to recognise and address the potential for Covid-19 to exacerbate existing inequalities must take some blame for the deadliness of the pandemic’s gendered impact.

In February, Guterres noted that ‘Everywhere, women are worse off than men, simply because they are women,’ adding: ‘We live in a male-dominated world with a male-dominated culture. Policies that penalize women… are back in fashion.’

Just as the pandemic was exacerbating existing inequalities, women’s rights were deliberately eroded in some countries with governments often keen to use Covid-19 as a cover for restrictions on women’s freedoms.

Aleksandra Stępniewska, counsel at WKB lawyers in Warsaw, says ‘we have Covid-19 and on the other hand we have this propensity and tendency of governments to restrict fundamental freedoms. To some extent, Covid-19 is an excuse for doing this – normally it may be impossible’.

In the United States, several states saw Covid-19 as an opportunity to restrict abortion access – most of these states had tried but failed to bring in abortion bans in 2019. Earlier this year, Molly Duane, a staff attorney at the Center for Reproductive Rights, told me that ‘in the US there’s a coordinated strategy to ban abortion or push it out of reach altogether. So, as the pandemic hit the US in earnest in March, the handful of states that are always attempting to ban abortion used the pandemic as a pre-textual excuse to once again try to shut down abortion access.’

Poland’s Constitutional Tribunal ruling came this October, and if enacted will ban abortion for foetal, including fatal, abnormalities – the grounds on which 98 per cent were sought in Poland in 2019. The Judge ruled the allowance of abortion on these grounds as unconstitutional, conflicting with the right to life. Poland, a predominantly Catholic country, already had very strict abortion laws, and now abortion will only be allowed if the woman’s life is in danger, or if the pregnancy is the result of a crime like rape or incest.

Stępniewska suggests that ‘maybe it’s not without reason that the Constitutional Tribunal issued this judgment now. They certainly knew that this would trigger demonstrations and protests, and obviously we have a lot of restrictions with regard to protests because of the pandemic’.

Global backlash

At the Beijing Declaration (virtual) anniversary event in October, French President Emmanuel Macron told the rest of the UN that ‘it’s no secret that in 2020 the Beijing Declaration would have no chance of being adopted.’ He and most other delegates warned that women’s rights, alongside the human rights from which they are indivisible, are sliding back worldwide in part due to a significant backlash against gender equality.

Charlotte Gunka, Co-Chair of the IBA Crimes Against Women Subcommittee, believes this backsliding is deeply connected to the rise of nationalistic populism, and the corresponding resurgence of extreme religious views that have been incorporated into state policies.

The Trump Presidency, characterised by mainstreaming nationalism, has explicitly denied abortion rights to garner support from conservative religious groups - despite popular opinion in favour of the right, which is protected by the US Constitution through the 1973 Roe v Wade US Supreme Court ruling and by international human rights frameworks.

As promised to gain evangelical Christian support in 2016, the President has appointed anti-abortion judges. Within weeks of inauguration in 2017, the Trump administration re-implemented and expanded the Global Gag Rule, which prevents organisations in receipt of US government funding from providing family planning services – and it’s had a devastating global impact. And his administration has consistently used its veto power at the UN to hollow out international conventions and declarations focused on gender equality or LGBTI rights.

The final year of the Trump Presidency has seen a particularly fierce assault on reproductive rights.

Secretary of State Mike Pompeo’s Commission on Unalienable Rights - created in 2018 to advise him on foreign policy - calls abortion and marriage equality ‘political controversies’ and advocates cultural relativism usually purported by China and Russia. It seeks to establish a hierarchy of rights and, in its September 2020 report, declares ‘US foreign policy can and should consider which rights most accord with national principles and interests at any given time’.

This agenda was furthered in a late October event hosted by Secretary Pompeo. More than 30 largely autocratic governments joined the US in signing the Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family, which promises to protect women’s health for the sake of society but explicitly denies abortion as a right.

Even if – as expected – the incoming Biden administration throws out the work of the Commission and recommits to gender equality, damage has already been done.

Wade McMullen, Senior Vice President of Programs and Legal Strategy at Robert F Kennedy Human Rights, says ‘there is now a model put forth in the international community, via a very powerful and influential international actor in the US, endorsing cultural relativism and politicising rights claims that have been well established through the international human rights project’.

Further, President Trump was successful in securing a 6-3 conservative majority on the Supreme Court for decades to come by appointing his third promised anti-abortion pick, Justice Amy Coney Barrett, to replace Justice Ruth Bader Ginsburg, who was the Court’s stalwart defender of women’s rights.

Akila Radhakrishnan, President of the Global Justice Center, is concerned that such a politically biased Supreme Court could spell disaster for many rights that were already on tenterhooks. ‘The Supreme Court doesn’t look like it’s going to stand up for women’s rights anymore. And that’s terrifying’, she says.

‘Gender ideology’

In the report Women’s Rights in Review 25 years after Beijing, UN Women notes that trends towards economic instability, increased displacement and environmental degradation have ‘coalesced in the rise of exclusionary politics, characterized by misogyny and xenophobia. Forty years after the adoption of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), women’s rights are being eroded in the name of a return to “traditional values”, and the institutions created to advance gender equality are being undermined’.

On 25 July, Poland’s Justice Minister Zbigniew Ziobro announced the government’s intention to withdraw from the Council of Europe’s Istanbul convention, the world’s first legally binding instrument to prevent and address gender-based violence. Ziobro argues that the Convention ‘takes aim at family, marriage and the currently functioning social culture when it comes to comprehending gender.’

The government sees the Istanbul Convention as promoting LGBT rights through a ‘gender ideology’, because the Convention says violence against women is rooted in gender inequality, and defines gender as ‘socially constructed roles’, separate to biological sex.

Religious groups leading the backlash against the Convention say violence is not a result of gender inequality but ‘pathologies’, like alcoholism, the breakdown of family, and the public sexualisation of women.

The term ‘gender ideology’ originates in 1990s discussions among the Catholic Church, which sought to counter the 1995 UN World Conference on Women. It resurfaced in the 2010s and an October 2019 survey by Ipsos found that a majority of Polish men under 40 see the ‘LGBT movement and gender ideology’ as Poland’s biggest threat in the 21st century.

Stępniewska says the government believes ‘the abandoning of traditional divisions a threat to our traditional family and society. That the Convention’s aim and application would provide for the destruction of the structure of the Polish society’.

To replace the Istanbul Convention, Poland has sought to create a regional treaty that would bolster the rights of ‘traditional’ families, which critics believe will harm LGBTI people and reproductive rights.

At the end of July, Polish Prime Minister Mateusz Morawiecki announced: ‘the Ministry of Foreign Affairs got a clear assignment concerning cooperation with other countries, to come up with appropriate provisions which are not imbued with any worldview elements – and therefore doubts – related to the moral revolution that some want to impose on us’.

‘They would like to defend the status quo,’ Stępniewska says. ‘To some extent we may ask why they are so afraid of equal partnership in families and generally in society’.

Poland is not alone in backsliding and taking issue with a ‘gender ideology’, which has also made headway across Europe and the Americas. The European Parliament found the need to commission a report, Backlash in Gender Equality and Women’s and Girls’ Rights in 2018 and a corresponding resolution was adopted in the European Parliament in February 2019.

The report connects equality backlash ‘to a significant degree with intensifying campaigning against so-called “gender ideology”’. One academic interpretation is that ‘the concept of gender ideology has become “symbolic glue,” uniting many groups and their critiques of numerous issues: modernity in its postmodern form, the identity politics that they identify with gender equality, same-sex marriage, some women’s rights issues (such as sexual and reproductive rights), sex education, challenging restrictive traditional gender roles, and the instability of the post-2008 crisis world’.

As the feminist philosopher Simone de Beauvoir wrote, ‘Never forget that a political, economical or religious crisis will be enough to cast doubts on women’s rights.’

For Radhakrishnan, ‘the rise of nationalism and populism seems to be a reaction to what is viewed as a threat to the hegemonic male monopolisation of power in any particular context’. She argues, ‘the thought of an equal pluralistic world terrifies certain people, and this is the reaction, the dying grasp of the patriarchy clinging to the past’.

Forward march

In the face of that, ‘we have to be strategic and creative’ to achieve gender equality, Radhakrishnan says. ‘We’ve always known this is a long fight and a long battle’, and although the Supreme Court change could be a major setback for legal protections of women’s rights, this is a moment for us to learn from Justice Ginsburg and other pioneering women.

She points to Justice Ginsburg’s legacy of fighting legal discrimination on the basis of sex before she joined the Supreme Court, and says, ‘there’s so much inspiration when you look at how it is that, in that era, when all of these precedents didn’t exist yet, the ideas were being formed and the arguments were being created’.

She is also inspired by the climate activism of youth movements worldwide: ‘it’s incredible that they refuse to be put in a box of what is possible. They have come out unabashedly in favour of massive reform, and said “we do not accept your limits”’.

For Stępniewska, ‘the crucial thing is education. Children should be taught from the beginning that they have rights. Family should be about partnership and there should not be rigid division, and this sense of freedom and the possibility of choice should be taught to children.’

She adds that laws guaranteeing won’t be effective if they are not ‘internalised by people’, if society is not ready. She believes that to have legal solutions that guarantee more gender equality in Poland would take political will, which may take a cultural change and a new government.

Overcoming cultural and structural barriers to social change is a challenge everywhere. Diana Hamade, Vice-Chair of the IBA Arab Regional Forum, says family laws that prevent women possessing their children’s passports – because men are seen as the children’s guardians, while women are custodians – were particularly problematic and remain unaddressed in the United Arab Emirates.

Elham Ali Hassan, a fellow IBA Arab Regional Forum officer based in Bahrain, notes that ‘culture and religion are in some aspects the main barriers impeding the protection of human rights legislations, especially in respect of abortion, recognition of children born outside of wedlock, and LGBT’.

But she and Hamade highlight that change has been forthcoming in the region. In November, the UAE amended family laws to better protect the rights of women, including moving to treat ‘honour crimes’ as any other crime, without reduced sentences.

The UN believes ‘the COVID-19 pandemic provides an opportunity for radical, positive action to redress long-standing inequalities in multiple areas of women’s lives, and build a more just and resilient world.’ To reach that world, in Women’s Rights in Review 25 years after Beijing UN Women outlines four universal catalysts for change.

First, supporting women’s movements and leadership, particularly as UN Women’s report From Insights to Action: Gender equality in the wake of COVID-19 finds ‘in countries with women at the helm, confirmed deaths from COVID-19 are six times lower’.

Second, harnessing technology to create more opportunities for women and close the gender digital divide, to enable the delivery of public services and to mitigate and adapt to climate breakdown.

Third, to match commitments with resources, given the percentage of development resources devoted to gender equality languishes at less than five per cent while global annual military expenditure has reached $1.82 trillion.

Finally, to ensure ‘no one is left behind’, which requires intersectional, disaggregated data and analysis. Intersectional data analysis is key to understanding the truth of inequality. Without it, we would not know how the Iraq war’s increasing of adolescent fertility between 2003 – 2010 affected girls differently dependent on wealth – more than a quarter of girls in the poorest regions of Kurdistan gave birth before turning 18, compared to 9.9 per cent of girls in the richest households of the South/Central region. Understanding these discrepancies enables more effective intervention and highlights the importance of initiatives being led by the community, with greater awareness of the regional concerns.

UN Women notes that feminist leaders are clear that gender equality is inseparable from intersectional issues like racial justice, workers’ rights, climate justice, LGBTI rights, corporate accountability, and more. The report states that addressing structural discrimination with an intersectional approach can shape ‘an alternative vision of a future where women’s rights are at the centre of a better world for all’.

That message has been clear in the high involvement of women in recent protest movements worldwide – in Black Lives Matter protests, climate justice globally, pro-democracy movements like in Belarus, and in Poland.

This involvement not only highlights the intersectional approach of feminist movements, but has a positive effect – protests featuring women are typically bigger, more peaceful, more versatile and more effective.

For everyone

With severe rule of law issues in Poland, with the politicisation and division of the judiciary, and the rejection of European conventions and oversight, combatting the backlash is particularly hard. But just as the 2016 Women’s Strike was successful in forcing parliament to backtrack on a total abortion ban that would imprison women, these women’s voices have been undeniably powerful again, forcing this government to so far delay publishing the new ruling to make it effective.

But Stępniewska highlights that ‘this is not a perfect solution’, raising its own rule of law concerns. It would be a repetition of a precedent set in 2015, when key rulings defending the rule of law were not published by the government in the Official Journal. Repeating such a practice, even in the defence of rights, ‘could open a path to the practice that each time we have protests on the streets, or the decision is not comfortable, then we will not publish the judgments and we will keep our status quo’, Stępniewska warns. She adds, ‘the other solution is that we will publish the judgments and then immediately adopt the same law – but the law could be reviewed and undermined just as the existing one has been’.

Nonetheless, she says, ‘it is so important to oppose what is happening now and try to prevent the backsliding, and it is up to us, unfortunately, to still fight for our status in society’. She adds, ‘there are a lot of demands that are addressed to the government, including the law on abortion, that we would like to certainly restore to the situation before the judgment and there is even a proposition to have more instances where abortion is legalised’.

The Women’s Strike movement have now set up a Consultative Council to develop ‘a way out of the collapse in 13 key areas’, coordinating many civil society organisations. And it’s not just about abortion. Stępniewska says the Women’s Strike is ‘not only about women, but we want to have a Poland for everyone. We don’t want to have any discrimination. We don’t want to have political parties which will promote fascist or nationalist ideas’.

Radhakrishnan says there is a great amount of inspiration to be taken from these Polish protests, alongside recent movements in Africa, Asia and South America – ‘movements that have consistently moved forward the conversation and protection of women's rights in their own countries through organizing, protest, advocacy and litigation’.

One of the reasons that she believes reproductive rights have become so vulnerable in the US is because the conversation around rights not moving forward.

Justice Ginsburg once lamented that Roe guaranteed abortion through a constitutional framework instead of an equality framework. Radhakrishnan says this means, ‘we don’t have fundamental equality scrutiny of these issues that are clearly matters of gender equality’.

Radhakrishnan adds, ‘Roe was decided 45 years ago. Human rights have developed significantly since. We should be asking how that informs what it is that we’re asking for and what our strategy to get there – how do we attack this larger framework of restrictions and bring forth a rights regime that protects all of the different components of what it means to have bodily autonomy and control, including how that plays into the ability to afford access to an abortion?’

‘As a movement,’ she says, ‘we spend so much time ourselves stigmatising abortion instead of asking for what we need – less so now, because of the leadership of women of colour who have helped shift the framework under which we talk about it’.

The way that advocacy has formed around the issue, focusing on incremental change – abortion for these reasons, up to this time, or emphasising that the hope is for abortion to be safe, legal and rare – has put the right in a place that is vulnerable to attack in the long-term. She says that language is used less so now, because of the leadership of women of colour who have helped shift the framework under which we talk about it. Still, ‘that’s the framework we’ve been stuck with,’ she says. ‘Maybe now’s the time to blow the framework open, and be unapologetic about what we’re asking for. We don’t need to build back to the existing framework’.

When women have, unapologetically, raised their voices, they have historically achieved great change – whether securing suffrage 100 years ago, ensuring every femicide is counted in Argentina in 2015, or securing driving rights in Saudi Arabia in the face of imprisonment.

Gunka is ready for a revolution. ‘We need to stand up. Go up front and fight for your rights as an individual, as a human being. And stop justifying yourself. We always try to put forward justification. We don’t have to justify the fact we want bodily autonomy’.

‘We should not give up. We should continue to put these issues forward’, she adds, warning, ‘we should never believe that a right that is acquired can be taken for granted, because history shows that it can in a very dramatic way shift’.