Ann Elizabeth Mayer points out something very significant in her article A “Benign” Apartheid” How Gender Apartheid Has Been Rationalized [pdf].
As the foregoing comparisons between the international human rights documents on racial and gender discrimination have illustrated, the former is far more harshly condemned than the latter. Among other things, there is nothing in CEDAW expressly admonishing that gender discrimination is impossible to justify regardless of motive.
No, I’m sure. That’s because so many people think it is possible to justify. But wouldn’t it be nice if that could change? If we could finally drop all the bullshit about women being “complementary” and having their own “role” and about “family values”?
Although the parallels between racial and gender apartheid are significant, the international community has impliedly accepted various rationalizations for what amounts to gender apartheid–rationalizations like the need to respect natural differences and religious and cultural traditions–that would not be given serious consideration if racial apartheid were at issue.
That state of affairs itself seems almost “natural”…but not all that long ago people did accept various rationalizations for racial apartheid, along with accepting apartheid itself – by which I don’t mean just the South African variety, but also all the de facto segregation in places other than South Africa.
That the Apartheid Convention warns us in Article III that racial apartheid can never be justified and is criminal regardless of motive has already been mentioned. Since critical outsiders felt confident that the power relations inherent in South African-style apartheid were unjust and deserving of the strongest condemnation, any defense of the associated culture/religion became likewise untenable. As discussed by Courtney W. Howland, the International Court of Justice (ICJ) decision against South Africa in the 1970 Namibia case showed no interest whatsoever in exploring the reasons for South Africa’s apartheid
policies; any such rationales were dismissed out of hand.80 As Howland reminds us, according to Afrikaaners’ religious beliefs there was a divine plan for the roles of Whites and Blacks that mandated Afrikaaners’ supremacy and their domination over Blacks.81 However, the ICJ ruled that the motives for apartheid were irrelevant, and it also deemed that evidence purporting to show the benefits of South African racial policies was immaterial.82
80 Howland, The Challenge of Religious Fundamentalism, at 347-48. 81 id.
That’s interesting, isn’t it? Afrikaaners’ religious beliefs were just dismissed as irrelevant when it came to apartheid. It can be done, so let’s everybody start doing it with gender apartheid too.
That is, attempts to justify racial apartheid by appeals to the motives behind it or its supposed beneficial impact were laughed out of court. Howland concludes that, by now, “[tlhere is no chance that the international community would accept that religious belief justifies systematic racial discrimination.”83 This conclusion seems incontestable. One need only imagine the reaction that would occur if someone tried to attack Nelson Mandela as an enemy of culture and religion on the grounds that his campaign against racial apartheid had been destructive of Afrikaaner traditions and disrespectful of Afrikaaners’ Christian faith in order to appreciate that the principle of racial equality easily trumps conflicting claims based on religion and culture.
In contrast, as will be discussed, room has been left for religion and culture to be successfully invoked to rationalize gender apartheid. A rare instance where the use of culture to justify treatment of women in violation of international human rights law is expressly prohibited is in the 1994 Declaration on the Elimination of Violence Against Women. Article 4 of the Declaration asserts:
States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. 84
One can surmise why UN delegates agreed that women’s rights could not be curbed by custom, tradition, or religion in circumstances where violence was being used against women.
83 Id. at 349. 1
84 G.A. Res. 48/104, supra note 24, Art. 4.
Because they didn’t want to say “our religion says we can use violence against women.” It would be awkward. But short of violence…it’s a different story.