Posts tagged Women’s Rights
US Supreme Court rules to reinstate in-person attendance requirements for abortion pill during Covid-19 pandemic

Food and Drug Administration v American College of Obstetricians and Gynaecologists 592 U.S.__ (2021)

A majority of the Supreme Court of the United States stayed an order by the District Court which suspended the requirement that people attend a hospital or clinic in-person in order to obtain mifepristone, a prescription drug used for medical abortions.

In July 2020, the District Court found that the in-person requirement posed an “undue burden” on people seeking an abortion in light of the COVID-19 pandemic. The Supreme Court’s decision reinstates the Food and Drug Administration’s requirement that patients attend a hospital, clinic, or medical office to pick up mifepristone and sign a disclosure form.

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Case Notes, Case Notes USA Court or TribunalAnnaFordyceHealth, Women’s Rights
High Court of Australia upholds laws that protect people from being accosted and harassed outside abortion clinics

Kathleen Clubb v Alyce Edwards & Anor; John Graham Preston v Elizabeth Avery & Anor [2019] HCA 11 (10 April 2019)

In this landmark decision, the High Court upheld the constitutional validity of safe access zone laws in Victoria and Tasmania, in particular, provisions that prohibit certain communications and protests about abortion within 150 metres of abortion clinics.

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Case Notes 08- Freedom of Expression, Case Notes 15- ProtestGuest UserWomen’s Rights
Supreme Court of Canada finds Quebec pay equity legislation violates Charter of Rights

Centrale des syndicats du Quebec v. Quebec (Attorney General), 2018 SCC 18

Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la sante et des services sociaux, 2018 SCC 17

In two recent decisions, the Supreme Court of Canada considered the whether several provisions of Quebec province’s gender pay equity legislation, the Pay Equity Act 1996, were contrary to section 15 of the Canadian Charter of Rights and Freedoms (addressing systemic wage discrimination against women).

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Case Notes 07- Equality/Non-DiscriminationGuest UserWomen’s Rights
High Court of England and Wales dismisses a defamation claim brought by a Governor following sexual harassment claims

Kofoworola Adeolu David v Zara Hosany [2017] EWHC 2787 (QB)

In a high-profile decision of the High Court (Queen’s Bench Division), Judge Moloney QC dismissed a libel action brought by Mr David, a Governor of a UK public authority, against another Governor, Ms Hosany. The allegedly defamatory material included allegations of sexual harassment.

The Court upheld the principle that complaints, properly made and without malice, are protected from defamation actions (the common law defence of qualified privilege). The exception to the privilege borne from article 8 of the European Convention of Human Rights (ECHR) and section 6 (1) of the Human Rights Act 1998, being a person’s right to respect for “private and family life, home and correspondence”, did not apply as the complaints were made in a private capacity. The judgment provides necessary encouragement to people to report incidences of sexual harassment in the workplace.

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Case Notes UK Court or TribunalGuest UserWomen’s Rights
CEDAW Committee rejects application but confirms broad scope of Convention

Committee on the Elimination of Discrimination against Women under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, Communication No. 39/2012, 57th sess, UN Doc CEDAW/C/57/D/39/2012 (10-28 February 2014) ('N v the Netherlands')

The High Court of Australia has unanimously held that the Minister cannot refuse to grant a protection visa to an individual who has validly applied for a visa on the sole basis that the individual is an “unauthorised maritime arrival”. In this case, as the Minister had refused to grant a protection visa to the plaintiff on this basis, and therefore failed to consider the plaintiff's visa application according to law as he had been directed to do by the Court, the Court issued a writ of peremptory mandamus requiring the Minister to grant the plaintiff a protection visa.

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MichelleBennettWomen’s Rights, Refugee & Asylum Seeker Rights
US Supreme Court rules on buffer zone outside reproductive health clinic

McCullen v Coakley, 573 US ___ (2014) (26 June 2014)

The United States Supreme Court has overturned a Massachusetts law creating a 35 foot buffer zone outside reproductive health facilities.  The Supreme Court held that the law violates the first amendment of the US Constitution because, while the buffer zone serves the State’s legitimate interests in maintaining public safety and preserving access to healthcare, it ‘burden[s] substantially more speech than is necessary’.

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MichelleBennettDemocratic Freedoms, Privacy, Health, Women’s Rights
Denial of Church membership reveals gap in anti-discrimination legislation

Bakopoulos v Greek Orthodox Parish of Mildura (Human Rights) [2014] VCAT 323 (26 March 2014)

VCAT dismissed a claim of discrimination for the refusal of a parish to grant financial membership to a female congregant. The Tribunal did not address the content of the alleged discrimination because there was no area in the Equal Opportunity Act 2010 (Vic) that applied to the nature of her claim. The case highlights gaps in the drafting of the Equal Opportunity Act 2010 (Vic) that limit the scope of protection against discrimination.

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MichelleBennettDiscrimination & Equality, Women’s Rights
UK police have a human rights obligation to prevent rape through effective investigation and punishment

DSD and NBV v Commissioner of Police of the Metropolis [2014] EWHC 463 (28 February 2014)

The UK High Court has found that systemic failures by police during a criminal investigation may amount to torture, inhuman or degrading treatment under article 3 of the European Convention on Human Rights. The Court held that in cases of particularly severe violent acts, such as rape, the police have a duty to conduct an investigation in a timely and efficient manner. Operational failures by the police meant that a rapist was not apprehended as early as he could have been, leaving him at large to continue to rape a significant number of women. The manner in which the police behaved towards the victims of such crimes was also found to amount to a breach of article 3.

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MichelleBennettPolice, Women’s Rights
Discriminatory cap on social benefits found to be lawful

SG & Ors (Previously JS & Ors), R (On the Application Of) v The Secretary of State for Work And Pensions [2014] EWCA Civ 156 (21 February 2014) 

The UK Court of Appeal has held that a cap on housing benefits does not breach the rights of the child, the family or the right to freedom from discrimination. The cap was found to have a discriminatory impact upon women, particularly single mothers and mothers escaping domestic violence. The Court of Appeal considered the cap was justified in light of the legitimate aim of ensuring people return to work.

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MichelleBennettDiscrimination & Equality, Child Rights, Women’s Rights
Legal restrictions breach sex worker safety rights

Canada (Attorney General) v Bedford [2013] 3 SCR 1101 (20 December 2013)

Summary

The Supreme Court of Canada has held that criminalisation of certain activities relating to prostitution breach the right to security under section 7 of the Canadian Charter of Rights and Freedoms. The Court found that the impugned laws imposed dangerous conditions on what is otherwise a legal activity, that of selling sex.

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MichelleBennettWomen’s Rights
Exclusion of pregnant students from schools undermines fundamental rights

Head of Department, Department of Education, Free State Province v Welkom High School and Another Case (CCT 103/12) [2013] ZACC 25 (10 July 2013)

The Constitutional Court of South Africa has ruled that school pregnancy policies that allow the automatic exclusion of pregnant students, violate students' constitutional rights to equality and a basic education and were not in the best interests of the students. The Court ordered that the policies be reviewed.

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MichelleBennettForeign Policy, Women’s Rights
Failure to protect against domestic violence amounts to gender-based discrimination and torture under European Convention

Eremia v Republic of Moldova [2013] ECHR, Application no. 3564/11 (28 May 2013)

The Republic of Moldova’s failure to adequately protect a woman and her two daughters from her husband’s violent attacks amounted to a breach of the European Convention on Human Rights. The European Court of Human Rights found Moldova’s inaction amounted to a violation of articles 3 (Torture and inhuman treatment), 8 (Private Life) and 14 (Discrimination).

The case is an important development in the ways in which human rights can be used to tackle systemic issues of gender-based violence and gender discrimination.

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MichelleBennettDiscrimination & Equality, Women’s Rights, Human Rights Law & Institutions, Foreign Policy
Forced sterilisation of Roma women is inhuman and degrading but not discriminatory

IG & Ors v Slovakia [2012] ECHR 1910 (13 November 2012) 

The European Court of Human Rights has again declined to rule on whether the forced sterilisation of Roma women in Slovakia constitutes discrimination under article 14 of the European Human Rights Convention. This is the third such forced sterilisation case to come before the Court. The Court held that the sterilisation of two Roma women constituted inhuman and degrading treatment, and that Slovakia had violated the women’s right to respect for private and family life. The Court awarded damages and costs to the applicants. The claim of a third woman was struck out due to her death. The Court denied her children’s standing to continue the application on her behalf.

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MichelleBennettWomen’s Rights, Discrimination & Equality
Failure to provide effective protection against domestic violence violated CEDAW

Isatou Jallow v Bulgaria, UN Doc CEDAW/C/52/D/32/2011 (28 August 2012) 

The CEDAW Committee found that Bulgaria violated several articles of the Convention on the Elimination of All Forms of Discrimination against Women by failing to investigate domestic violence allegations, failing to take domestic violence into account in making court orders and failing to provide the complainant with information regarding the whereabouts of her child.

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MichelleBennettWomen’s Rights, Human Rights Law & Institutions
Failure to ensure de facto equality in employment a violation of CEDAW

RKB v Turkey, UN Doc CEDAW/C/51/D/28/2010 (13 April 2012) 

The UN Committee on the Elimination of Discrimination against Women has found that the termination of a woman from employment on the basis of her alleged extramarital affair – in circumstances where her male co-worker was not terminated – violated the right to equality and the prohibition against wrongful gender stereotyping.

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MichelleBennettDiscrimination & Equality, Women’s Rights
Sterilisation of woman amounted to breach of respect for private life and prohibition against inhuman or degrading treatment

V.C. v Slovakia [2011] ECHR 1888 (8 November 2011) 

In this case, the European Court of Human Rights held that the sterilisation of a woman, in circumstances where “consent” to the procedure was obtained during the late stages of her labour, violated her right to private life and the prohibition against torture and ill-treatment.

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MichelleBennettWomen’s Rights, Health
Denial of access to therapeutic abortion and essential health care violated Convention on Elimination of Discrimination against Women

L.C. v. Peru, UN Doc. CEDAW/C/50/D/22/2009 (4 November 2011)

The UN Committee on the Elimination of Discrimination against Women has found that Peru, by denying a minor who had been sexually abused access to therapeutic abortion and delaying necessary spinal surgery that contributed to her paralysis, violated articles 2(c), 2(f), 3, 5 and 12 of the Convention on the Elimination of All Forms of Discrimination against Women in conjunction with article 1.

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MichelleBennettWomen’s Rights, Health, Child Rights
Treatment and conditions of detention for women must be gender-sensitive, says CEDAW

Inga Abramova v Belarus, Communication No. 23/2009, UN Doc. CEDAW/C/49/D/20/2008 (29 August 2011) 

The Committee on the Elimination of Discrimination against Women has found that Belarus’ treatment of a woman detained under administrative arrest violated articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with article 1 and the Committee’s General Recommendation No. 19 on violence against women.

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MichelleBennettWomen’s Rights, Prisoner Rights
Failure to protect woman effectively against domestic violence violated Convention on Elimination of Discrimination against Women

V.K. v. Bulgaria, UN Doc CEDAW/C/49/D/20/2008 (17 August 2011) 

The Committee on the Elimination of Discrimination against Women has found that Bulgaria’s failure to protect V.K. effectively against domestic violence amounted to violations of articles 2(c)-2(f) of the Convention on the Elimination of All Forms of Discrimination against Women, read in conjunction with article 1, and article 5(a), read in conjunction with article 16(1) and General Recommendation No 19 on violence.

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MichelleBennettDiscrimination & Equality, Women’s Rights
No doubt over lawfulness of abortions

Abortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246 (1 June 2011)

On 1 June 2011 the New Zealand Court of Appeal handed down its decision in the appeal and cross-appeal from the judgment of Justice Miller in the High Court’s 2008 decision in Right to Life New Zealand Inc v Abortion Supervisory Committee [2008] 2 NZLR 825 on the rights of the unborn child and the powers of the Abortion Supervisory Committee (ASC) under the Contraception, Sterilisation and Abortion Act 1977 (CSA Act). The majority (2:1) upheld Justice Miller’s finding that an unborn child has no express right to life, but held that his view that there was nevertheless “reason to doubt the lawfulness of many abortions” was inappropriate and had no legal effect. The majority also rejected Justice Miller’s finding that the ASC’s general supervisory role included a statutory obligation to audit the decisions of certifying consultants on the lawfulness of abortions in individual cases.

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MichelleBennettWomen’s Rights, Health, Foreign Policy, Human Rights Law & Institutions
States Have Obligation to Prevent and Address Gender-Based Stereotyping

Vertido v The Philippines, UN Doc CEDAW/C/46/D/18/2008 (1 September 2010) 

The Committee on the Elimination of Discrimination against Women has held the Philippines in violation of its obligations under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women to protect against gender-based stereotypes after a judgment issued in a rape case.  The Committee found the State party did not uphold its obligation to ensure an expeditious remedy or to prevent unfair gender-based stereotypes in violation of arts 2 (c), (f) and 5 (a) of the Convention.

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MichelleBennettWomen’s Rights, Discrimination & Equality
Temporary Exceptions and the Right to Equality and Non-Discrimination: Exemptions should be Subject to Ongoing Monitoring and Evaluation

Wesley College (Anti-Discrimination Exemption) [2010] VCAT 247 (3 March 2010)

In this case, VCAT considered an exemption application pursuant to s 83 of the Equal Opportunity Act 1995 by Wesley College. The exemption sought to enable Wesley to advertise for and give preference to prospective female students so as to promote a gender balance among students at the school.

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MichelleBennettDiscrimination & Equality, Women’s Rights
The Right to Equality and Non-Discrimination and Exemptions under the Equal Opportunity Act 1995 (Vic)

Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415 (26 November 2008)

In a recent VCAT decision, Harbison J has confirmed that the limitations provision of the Charter now defines the parameters of VCAT’s power to grant an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) under s 83 of the EO Act.

This decision concerned an application by the Royal Victorian Bowls Association (‘RVBA’) and the Victorian Ladies Bowling Association (‘VLBA’) for an exemption from the EO Act to allow them to conduct single sex lawn bowls competitions.

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MichelleBennettDiscrimination & Equality, Women’s Rights
Right to Private and Family Life and the Protection of Children

EM (Lebanon) v Secretary of State For The Home Department [2008] UKHL 64 (22 October 2008)

The House of Lords recently ruled that a foreign national could not be removed from the UK in circumstances that would completely deny or nullify her right to family life, since such removal would be incompatible with the UK's obligations under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998.

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MichelleBennettForeign Policy, Child Rights, Discrimination & Equality, Women’s Rights