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Report of the Working Group on the issue of discrimination against women in law and in practice, A/HRC/29/40, 2 April 2015

III.     Thematic analysis: eliminating discrimination against women in cultural and family life, with a focus on the family as a cultural space

A.      The cultural construction of gender

21.     Women who do not conform to the gender stereotypes that predominate in some cultures and those who openly contest them, including within their own cultural or religious communities, are particularly vulnerable to discrimination, violence and criminalization. They include, among others, single women, widows, female heads of family, lesbians, bisexual and transgender women, sex workers and women human rights defenders. The Working Group emphasizes that the obligation of States to protect cultural diversity applies to diversity within cultures as well as between them.

B.      The family: conceptual and sociological aspects

1.       Redefining the family by incorporating a gender perspective

23.     The family exists in various forms. The expression “diverse families” encompasses, for example, single-parent families; families headed by women; intergenerational families including, among others, grandparents; families headed by children, such as orphans or street children; families comprising lesbian, gay, bisexual, transgender and intersex (LGBTI) persons; extended families; self-created and self-defined families; families without children; families of divorced persons; polygamous families; and non-traditional families resulting from interreligious, intercommunity or inter-caste marriages. Self-created and self-defined families include, in particular, families formed in marginalized communities. In all these different forms of family, women tend to be subject to legal sanctions and to experience difficult social and economic situations. Indigenous and minority women and women living in strict patriarchal, religious, traditional or caste systems are more likely to be found in these forms of family and are especially vulnerable to early and/or forced marriage, while men may have multiple households or second families with their de facto spouses or partners.

24.     The different forms of family and their recognition by the State are influenced by a multitude of normative factors, such as culture, religion and caste, and behavioural factors, such as livelihoods, sexuality and social status. Although several international forums recognize family diversity, including “in different cultural, political and social systems”,[17] many of the aforementioned non-traditional forms of family are not recognized by all States. The family is often defined by legal systems as a unit founded on marriage between a man and a woman, affecting rights relating to, for example, inheritance, property, child custody, pensions, tax relief and social service provision. Laws and public institutions in some States require a male family member or male guardian to initiate or conclude official transactions, thus placing families headed by women or consisting solely of women at a disadvantage. Families headed by women, like those headed by children, are more seriously affected by poverty because of the discrimination they suffer. Given that State recognition is often a condition for families to receive services and benefits, such as accommodation and protection provided by the State and/or non-State actors, lack of recognition leads to the marginalization of these families.

25.     It is the opinion of the Working Group that the understanding and legal definition of the family in national legislation should be extended to recognize different forms of family. The recognition of same-sex couples, for both women and men, and other forms of family is an example of good practice that a number of States have already implemented. In this regard, the Inter-American Court of Human Rights has confirmed that mothers who are lesbians should not be deprived of custodial rights over their children.[18]

C.      Legal sources of family law

1.       Secular family law systems

46.     In some secular family law systems, elements of discrimination remain, for example a lower legal minimum age for marriage for girls and discriminatory provisions on inheritance rights, divorce and recognition of same-sex couples.

Link to full text of the report: Report-WGWomen-2015-eng


Footnotes    (↵ returns to text)

  1. 17. See Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995 (A/CONF.177/20/Rev.1), Beijing Platform for Action, para. 29; Panel on the protection of the family, 15 September 2014, twenty-seventh session of the Human Rights Council.
  2. 18. Inter-American Court of Human Rights, Atala Riffo and daughters v. Chile, judgement of 24 February 2012 (Merits, Reparations and Costs).