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UN Working Group on the issue of discrimination against women in law and in practice finalizes country mission to Spain

MADRID (19 December 2014) – At the end of a 10-day mission to Spain, in which the Working Group’s delegation, comprised of Frances Raday and Eleonora Zielinska, visited Madrid, Seville, Bilbao, Vitoria and Pamplona, Frances Raday delivered the following statement:

We want to express our sincere appreciation to the Government of Spain for having invited us to conduct this country visit and for its efficient organisation. We are grateful to all our interlocutors, including State officials at the central and regional levels, representatives of civil society organisations and representatives of United Nations agencies. We would like also to thank the various women’s associations who shared their experiences with us.

The Expert Group notes with appreciation the impressive and wide-ranging legislative and institutional frameworks for equality established in Spain, including the Constitutional provisions of 1978, the Law against Gender Violence 2004, the Same Sex Marriage Act 2005, the Constitutional Law 3/2007 for effective equality, the creation of the Ministry of Equality 2008, the Organic Law 2010 on sexual and reproductive health and abortion, the Law providing free legal assistance for victims of violence in 2013. Specialized institutional mechanisms were established for implementation of gender equality: the establishment of the Women’s Institute in 1983, an inter-ministerial committee on equality between women and men, gender units in all ministries, the women’s participation council and women’s institutes at regional level.

Numerous gender equality plans and policies have been introduced, including, at the national and autonomous community levels, consecutive strategic plans on equality, strategies on violence against women; a National Action Plan for the Application of Security Council Resolution 1325; a proposal to enact the Statute of the Victim to provide better protection of rights of crime victims in court cases.

These legislative instruments and various plans and policies have not succeeded in making inroads into the culture of ‘machismo’ and the social influence of patriarchal religious attitudes, which remain powerful behind the rhetoric of equality. Nor have they reduced the level of violence against women, in all its forms, which remains a matter of grave concern to all stakeholders.

Furthermore, in 2010, the Ministry of Equality was dissolved and its functions assigned to the Ministry of Health, Social Affairs and Equality and, in 2014, the mandate of the Women’s Institute was transformed into an entity responsible for all forms of discrimination, changes which reduced institutional gender visibility, specificity and focus.

Furthermore, in the context of the economic crisis, measures have been taken which adversely affect women’s enjoyment of their economic and social rights. There are polarized perceptions amongst stakeholders of the impact of these measures on the situation of women in comparison with men.

Many stakeholders, including public officials in the regions, have observed a worrying retrogression in women’s social and economic empowerment. According to some interlocutors, this regression is a result not only of the economic crisis but also of government policy and austerity measures, which are not fully explained or justified by the economic crisis. They point out there has been a reduction of budgets for social services in many Autonomous Communities, leading to the weakening or closure of institutions that provide services to women, their children and their dependents.

Other stakeholders have shown that the national social expenditures were not only maintained but even increased between 2007 and 2012. However, they agreed that these levels of budgets were not enough to maintain the level of services for individuals in need, within a context of increasing demand for social assistance. The institutional budgets for law enforcement mechanisms and gender equality institutions were maintained and they were increased in 2014.

Economic and social participation and empowerment of women

Women are in a disadvantaged position in the labour market. They have a lower level of participation in full time work than the EU average. Of people working part time, 70 % are women and 58.2% of them say the reason is their inability to find full-time employment. Furthermore, employers have been reducing full time jobs to part-time plus overtime hours in order to avoid employment costs. Women are the primary victim of this practice.

The wage gap persists, at 21.5 % in the private and 13.4% in the public sector. There is a disconnect between women’s higher educational achievements than men’s and their lower remuneration. In employment, women’s promotion to managerial positions is lower than the average in the EU, despite Spanish women’s higher levels of tertiary education. There is horizontal segregation, with women concentrated in the low paid service sector.

Women’s unemployment has doubled since 2008. However, the gap between men’s and women’s unemployment has narrowed from 8% to 2%. Nevertheless, women constitute 59.9% of the long term unemployed. Unemployment of young women stands at 54.96%. However, according to the information received, measures to increase employment after the economic crisis have largely focused on male employment sectors.

The conditions of live-in domestic workers, most of whom are migrant women, are harsh. Employers may deduct 30% from the total salary, above the minimum wage, for food and accommodation. Despite the improvements introduced by Law 1620/2011 on Domestic Workers, we regret that these workers are still excluded from unemployment insurance. In this regard, we would like to encourage the Government to ratify the 189 ILO Convention on the Protection of Domestic Workers.

The Organic Law for Effective Equality provides a strong legal framework for equal opportunity in employment, including prohibition of direct and indirect discrimination, equal access to employment and career development, reconciliation of personal, family and working life, training, gender balance for selection and evaluation committees, and equal pay for work of equal value. The Law also mandates the formulation of corporate positive action equality plans for enterprises with more than 250 employees. However, we were constantly told that women do not feel empowered by this legislation to enforce their right to equal employment opportunities.

Enforcement of the prohibition of discrimination in both the public and the private sector is delegated to the Labour Inspectorate and the Women’s Institute. However, social awareness of this avenue of complaint is not sufficient. Stakeholders consider that recourse by individuals or by CSOs to court, to enforce equal employment opportunity rights, is not regarded as a feasible option because they feel that there is little chance of succeeding and because in conditions of high unemployment, the risks of losing their jobs are too great. In the public sector, we were informed by state officials responsible for equality monitoring that there is no discrimination in public employment. They attributed the low level of women in high positions to their later entry, in the late 1970s, to professional positions. However, this argument was not supported with longitudinal data and the 13.4% wage gap in public employment remains unexplained.

Women’s unpaid care burden constitutes a severe and increased structural barrier to equal employment opportunity. The Expert Group appreciates that woman have the right to paid maternity leave and parents to child care leave in accordance with international standards. The Expert Group also notes with appreciation the extension of reduced working hours for parents of children under 12 (previously granted until the child is 8). However, austerity measures, in many Autonomous Communities, have reduced dependent care eligibility and child-centered services, such as kindergartens and school canteens, thus privatizing the burden of care. At the same time, the right of parents to choose flexi-work was cancelled. All these measures have increased the care barrier to women’s labour force participation and career promotion. Ensuring a social protection floor for care, especially for full-time working parents and synchronizing the school day and holidays with working time, are essential measures not only for women but for sustainable recovery of the economy.

Education, culture and stereotypes

The disconnect between women’s educational achievements and access to economic opportunities should be addressed in schools, through the removal of stereotypes in the educational system and the provision of career advisory services for girls. Stakeholders reported that textbooks have still not been revised since the CEDAW recommendation in its Concluding Observations in 2009.

The change introduced in the education curriculum - which made the core syllabus citizenship course, with its component of civic ethics and human rights education, an optional alternative to religious studies - is counter-productive in the aim to eliminate discriminatory gender stereotypes and empower girls. The teaching of gender as a crosscutting issue in the social and natural sciences courses does not rectify this situation. Religious instruction does not incorporate feminist theology. A representative from the Episcopal confirmed that for the Church, feminist theology does not exist. The citizenship course is an essential and requisite tool for educating boys and girls that universal human rights values and women’s human rights are an inalienable part of the civic ethics of all states and that gender-based violence is a severe violation of women’s human rights and is prohibited under both international and Spanish law. Freedom of religion cannot, as UN special rapporteurs and the human rights treaty bodies have clarified, be used to justify discrimination against women and, hence, cannot be regarded as a justifiable reason for marginalizing the teaching of women’s right to equality.

The challenge of improving the educational level and employability of Roma girls is urgent. Only 40% of Roma girls enroll in secondary education and 2% in higher education and the labour force participation rate of Roma women is extremely low. The Expert Group appreciates the integration policies adopted in some Autonomous Communities. However, the Roma community claims that in many places the schools are isolated and ghettoized and we encourage further involvement of the Roma community in designing integration policies for girls’ education and avoiding ghettoisation.

Negative gender stereotypes contribute to women’s disadvantage in all spheres of life. Interlocutors criticized the use of discriminatory language in the courts, imposition of a secondary role in the Church, lower levels of women artists in exhibitions and awards and severe under-representation of women in the Academy of Sciences. In the media, there are traditionalist and sexist roles, sexist advertising and resistance to reporting women’s successes in sports. The Women’s Institute has obtained a court injunction to withdraw sexist advertising by a commercial airline and, in Andalusia, the Women’s Institute has established an anti-sexist advertising observatory in cooperation with the Audiovisual Observatory.

We noted with concern the multiple discriminatory stereotypes to which women in vulnerable situations, such as rural women, women with disabilities, women in poverty, migrant women and lesbians, are exposed.

Violence against Women

The 2004 Law for Comprehensive Protection Measures against Gender Violence established a solid legal framework for prevention, protection, prosecution and punishment of violence by an intimate partner. It established a specialized criminal court and prosecutor for the adjudication of offences under the Law. The Ministry of Interior has developed the VioGen system, which is a sophisticated and innovative data base for use nation-wide by law enforcement agencies. This monitoring and follow-up system for domestic violence is a powerful tool in the process of risk assessment for protection of victims. We hope that the Law and the VioGen system will be extended to cover all other forms of gender-based violence against women - including violence by carers, police violence, violence in public spaces, the workplace and schools - and that the system will remain focused exclusively on gender-based violence, in the meaning of the Istanbul Convention.

All stakeholders expressed grave concern at the high level of domestic violence. There were 124,894 reported cases of domestic violence by intimate partners in 2013. Cases of women or children being killed, in some instances after repeated complaints to the police, continue to occur and 54 women were killed by their partners in 2013. Furthermore, during our visit, two women were killed by their intimate partners, at least one of whom had previously reported violence to the police. We learned from numerous stakeholders that law enforcement officials, including social workers, police and judges, often fail, as a result of insufficiently effective gender-sensitive capacity building, to give proper weight to women’s evidence regarding the risk of violence, for them and their children, and to provide a full measure of protection of women victims’ needs in the criminal justice system. This may affect the issuance of protection orders, which are given in 59% of the requests which reach court. Furthermore, numerous stakeholders reported to us that fathers are frequently granted visitation rights and custody, in spite of having committed acts of domestic violence.

The failure of due diligence in such cases was reflected in the CEDAW Committee’s emblematic Gonzales decision, in which it recommended, inter alia, that mandatory training be provided for judges and administrative personnel and that the exercise of custody and visitation rights should not be allowed where it endangers the safety of victims of violence, including children, and that the best interest of the child must prevail. We look forward to implementation of the recommendations and the government’s response to CEDAW. Quality capacity building and training in gender sensitivity should be mandatory for law enforcement officials and the judiciary, at all levels, and for psycho-social and health workers.

There is a deteriorating situation nation-wide regarding the provision of protective services for women victims of domestic violence, including a reduction in the availability of shelters for women and children. The decision to reduce the number of shelters is regrettable in view of the seriousness of the problem. We welcome the exception learned in our visits to Andalusia, which in spite of budget cuts across the board maintained the number of shelters and the quality of protection..

All stakeholders regard trafficking of women for sexual exploitation as a tragic social issue and are concerned at the lack of implementation of existing protocols for identifying trafficking victims, particularly in cases of expulsion.

Health and safety

The Expert Group acknowledges that the 2013 draft bill restricting abortion rights under the Organic Law 2/2010 on sexual and reproductive health and abortion was withdrawn in the face of popular opposition. However, we are concerned that, even under the present law, conscientious objection by medical professionals can obstruct women’s access to legal abortion, as has occurred in Navarra where there has been no abortion since 1986. We understand that a new legislative proposal may be presented to Parliament and this will require parental consent for abortion by girls aged 16 and 17, in place of the presently required notification to one parent, unless this will result in a clear and present danger of domestic violence. This measure would further restrict girls’ access to safe and legal abortion and would put the burden of proof on girls that notification to their families will expose them to risk. Similar considerations apply regarding girls younger than 16, who at present cannot access legal abortion without parental consent.

Migrants in an irregular situation are no longer covered by universal health care, with exceptions, and we were informed that this has a disparate impact on migrant women as those who cannot afford to pay are deprived of an important facility in the medical services for detection of gender-based violence.

Participation in the political and public life

The Law of 2007 created a 40% quota for political representation of each sex, resulting in a significant increase in women’s participation in parliament. Furthermore, parity was achieved in the national government but was not maintained and the number of women presently stands at 30%.

Although women have been entering the judiciary since the late 70s and they now constitute 33% at the lower and middle levels, yet the numbers of women at the highest levels of the judiciary are extremely low: in the Supreme Court, of 70 judges only 12 are women; there are no women presidents in the chambers of the National Court (Audiencia Nacional); and in the High Courts of Justice, of 52 presidents of these courts only 6 are women. There is a lower level of promotion of qualified women in the Foreign Office to the position of Ambassador. More women should be promoted to the highest levels of the public administration, on a merit basis without stereotypical barriers.

Access to justice

Many stakeholders have observed that there is mistrust in the justice system as regards gender issues. They claim that often judges, too readily and in a biased fashion, dismiss women’s claims for restraining orders or prevention of visitation rights or custody from their violent partners. They add that judges tend to dismiss women’s evidence as false or manipulative and are prepared to accept vindictive accusations by husbands suspected of violence that the violence is mutual or that the woman has alienated the children.

Numerous stakeholders explained that the 10/2012 Law for the regulation of determining costs in the area of administration of justice, which imposed heavy fees for filing actions in court, have created a serious barrier to litigation in most civil, family, labour and administrative cases.

Conclusion

Spain’s efforts to integrate women into public, political and economic life and the commitment to eradicate domestic violence are unswerving. To these ends impressive laws, policies and plans have been put in place. However, the roots of discrimination in ‘macho’ culture and patriarchal attitudes, limiting many women to traditionalist domestic roles, and paving the way to gender-based violence, have not been properly diagnosed and addressed. Thus the political will has not carried through to secure a high profile for gender equality in institutional frameworks for education, training, awareness raising, public media, care services and access to justice, necessary to bring about transformative equality.
Our preliminary findings and conclusions will be presented in a more comprehensive report to the Human Rights Council in June 2015.

ENDS

The UN Working Group on the issue of discrimination against women in law and in practice was created by the Human Rights Council in 2011 to identify, promote and exchange views, in consultation with States and other actors, on good practices related to the elimination of laws that discriminate against women. The Group is also tasked with developing a dialogue with States and other actors on laws that have a discriminatory impact where women are concerned. The Working Group is composed of five independent experts: the Current Chair-Rapporteur Frances Raday (Israel/United Kingdom), Alda Facio (Costa Rica), Kamala Chandrakirana (Indonesia), Emna Aouij (Tunisia) and Eleonora Zielinska (Poland).

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