Defending Dignity A Manual for National Human Rights Institutions on Monitoring Economic, Social and Cultural Rights Affirmative action or positive measures may be needed to end de facto discrimination and to guarantee true equality. For this reason, States are advised to adopt “temporary special measures” in order to bring disadvantaged groups to the same substantive level as others. For example, if gender equality is to be achieved and realized in practice, it may require states to introduce some effective and meaningful affirmative action policies for the benefit of women. This may continue until women and girls are supported to reach an equal level of capacity, opportunity, facilities and power (see text box on substantive equality and temporary special measures below).8 SUBSTANTIVE EQUALITY AND TEMPORARY SPECIAL MEASURES ‘Substantive equality’ is a concept commonly used in relation to women’s rights. It is similar to ‘de facto’ equality, meaning that all people should be able to enjoy the ‘substance’ of their rights equally in practice, not just in law or in theory. The concept of substantive equality has been advanced in key human rights treaties to capture the key insights that: • Discrimination can be indirect (i.e. a policy that is neutral on its face can in practice discriminate against women) • Inequality can be deeply entrenched in culture, social practice, economic models and attitudes • Equality of opportunity is not enough. Because of structural barriers and historical disadvantages in place, certain groups may not be able to take advantage of the opportunities in theory available to them. Therefore, to understand inequality we also have to pay attention inequalities in results and outcomes. So for example, women may in theory have the same access to work opportunities, but their caregiving responsibilities prevent them from taking advantage of them • Different treatment might be required to achieve equality in practice (see below). UN Women proposes a framework for achieving substantive equality based on three interconnected dimensions8: • Redressing socio-economic disadvantage – for example, implementing minimum wage policies and ensuring equal wages for women • Addressing stereotyping, stigma and violence – for example, robustly tackling gender-based violence, or introducing universal social transfers that do not stigmatize poor women • Strengthening agency, voice and participation – for example, supporting women’s organizations to influence economic policy-making, or ensuring greater inclusion of women in political bodies. Temporary special measures are a potentially crucial means for reaching the goal of substantive equality. The idea of temporary special measures makes explicit that not all ‘different’ treatment is discrimination. Sometimes groups that have been historically discriminated against may need special policies or actions directed towards them, in order to overcome the entrenched disadvantages they face. For example, it is not typically ‘discrimination’ to introduce quotas for women political candidates, or prioritize women in policies designed to reduce poverty or unemployment. CEDAW article 4 explicitly says that “Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards”. The most notable international human rights sources for understanding substantive equality are CEDAW (see in particular Articles 1 and 3); CEDAW Committee General Recommendation 25 on temporary special measures; and General Comment 16 of the CESCR. The Convention on the Elimination of Racial Discrimination also recommends ‘special measures’ to be put in place (article 1). 8 24 UN Women, Progress of the World’s Women 2015–2016, p.42.