Background

Across the globe and throughout history, women and girls have experienced discrimination rooted in their sex and/or reproductive function; often intersecting with other prohibited grounds.^[1.1] As a result, they have been subjected to specific forms of violence that have affected them disproportionately because of their female sex, such as forced marriages, femicides, female genital and other bodily mutilation or harm, rape, sexual and other types of exploitation including prostitution– to mention a few.

While the term “sex” has not been defined in international law, Article 31 of the Vienna Declaration on the Law of Treaties (1969) mandates that treaties be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.^[1.2] The same article also specifies that States shall take into account – together with the context in which a treaty was concluded – “any relevant rules of international law applicable in the relations between parties” and any subsequent practice.^[1.3] Based on the aforementioned, sex is to be understood as a “biological category”^[1.4] and a distinction between women and men^[1.5] as well as boys and girls. This is the understanding that the Special Rapporteur has for the purposes of the report.

Several key international human rights treaties and other instruments refer to the obligation of States to prohibit and prevent discrimination based on sex.^[1.6] The recognition that sex is often central to women’s and girls’ experience of discrimination and violence, does not and should not imply that women’s and girls’ oppression is biologically determined. Rather, international law, CEDAW in particular, and State practice recognize the need to address and eliminate discriminatory stereotypes and social norms arising from unjustified and unfair distinction based on sex (CEDAW Art 1) that can lead to “the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women” (CEDAW Art 5.2).

There are other instances, however, when such a distinction is not deemed discriminatory but necessary to protect women’s human rights and fundamental freedoms. This is the case, for example, in protection of maternity (CEDAW Art 4.2). Temporary special measures based on sex are also important in eradicating historic discrimination and violence that women and girls face.

Today, violence against women and girls remains at epidemic levels, including new, emerging and evolving forms and manifestations. Additionally, certain forms of violence remain insufficiently recognized or reported. The experiences of women and girls of this violence continue to be profoundly shaped by their sex. Despite its centrality, while many States and other actors have adopted ad hoc legal– sometimes conflicting - policy and legal frameworks to prevent and respond to sex-based violence against women and girls, significant gaps persist in analysing them effectively and tackling the root causes of such violence. Additionally, there is an observable trend to adopt laws and policies that are blind/neutral to the specific sex-based discrimination, including violence, against women.

Objectives

The Special Rapporteur would like to receive input to better understand different forms and manifestations of sex-based violence against women and girls; analyse challenges and gaps in national, regional and international legal and policy frameworks to prevent and respond to sex-based violence against women and girls; and to form recommendations and actions to be undertaken by relevant actors in order to better identify, prevent and respond to sex-based violence against women and girls.

Key questions and types of input/comments sought

Manifestations of sex-based violence against women and girls

1. What are some of the most prominent forms of violence against women and girls today that are specifically or primarily based on sex?
2. What are the consequences of the most pervasive forms of sex-based discrimination today on women and girls?
3. Are there emerging forms or evolving dynamics of sex-based violence against women and girls that call for a deeper and more nuanced understanding of such sex-based forms of violence?
4. What forms of sex-based violence against women and girls are underrecognized or underreported, and what measures can be taken to identify and address them?
5. How are language and terminology today being used to describe and address sex-based violence against women and girls? What are the implications and consequences of this usage?

Fundamental freedoms and sex-based violence against women and girls

6. What challenges and opportunities do women’s organizations and victims encounter in their advocacy around the issues of sex-based violence against women and girls?
7. What challenges and opportunities do experts, researchers and academics meet in researching, analysing and understanding the current forms of sex-based violence?
8. To what extent are women and girls – as well as organizations that represent them- able to meaningfully and effectively participate in all processes that affect them?

National, regional and international legal and policy frameworks to prevent and respond to sex-based violence against women and girls

1. What are the consequences of the inadequate consideration of the relationship between sex as a ground for violence against women and girls in law, policy and practice including the ability to access effective assistance and protection from State and non-State actors?
2. What are the challenges, opportunities and good practices in the collection and analysis of data based on sex to address violence against women and girls?
3. What are the challenges, (especially gaps in legislation), opportunities and best practices in combating sex-based violence against women and girls?
4. What tensions arise between the obligation to prohibit and prevent discrimination and violence against women and girls based on sex and other grounds, including gender? How have States and international organizations been addressing these tensions?

Recommendations

13. What actions should relevant actors take (States, international organizations, civil society, others) to better identify, prevent and respond to sex-based violence against women and girls?
14. How should national, regional, and international frameworks and standards on women and girls be reviewed, adjusted, clarified, or complemented in order to enhance efforts to identify, prevent, and respond to sex-based violence against women and girls?

Respondents may wish to answer these questions and provide supportive information focusing on either women, girls or both.

The Special Rapporteur is particularly interested in hearing from representatives of governments; civil society organizations; lawyers; national human rights institutions; academics; policy and research institutions; as well as from victims’ associations.

How inputs will be used?

Please do not send submissions from individuals in which individual stories are narrated, which will not be processed as the mandate has limited capacity.

For minors who wish to send input, the express consent of one of their parents or guardians will be required. Should the number of submissions remain manageable, the mandate may publish and cite those submissions, unless they are marked by their authors as confidential or if the expressed consent of victims and individuals mentioned has not been secured.

1.1. The Committee on the Elimination of Discrimination Against Women (2017) in its General Recommendation 35 on gender-based violence has highlighted that discrimination against women is inextricably linked to other factors that affect their lives, that may include ethnicity, race, colour, political opinion, disability, migratory status as well as gender identity and sexual orientation.

1.2. Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art. 31.

1.3. Ibid.

1.4. Chinkin et al (Ed.), the UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary, 1992, first edition, p. 15.

1.5. CEDAW Committee, General Recommendation N28 (“The term “sex” here refers to biological differences between men and women”, p. 2, par. 5)

1.6. These include the UN Charter, the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights (ICCPR); the International Covenant International Covenant on Economic, Social and Cultural Rights (ICESCR), the Declaration on Ending Violence against women and girls, the Convention on the Elimination of All Forms of Discrimination Against Women, as well as the Convention on the Rights of the Child (CRC).