Australian Women with Disabilities using Optional Protocols: The Challenges, The Benefits (Christina Ryan: Advocacy for Inclusion)

Christina RyanChristina Ryan of Advocacy for Inclusion discusses the challenges and benefits for Australian women with disabilities of using Optional Protocols

Australian women with disabilities experience many rights violations, struggle to have them recognised, and struggle even harder to have them addressed.  Mechanisms to address these rights violations can appear remote, high level and irrelevant to the women who would benefit most from using them.  Perhaps this is why no woman with disability has used the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol to CEDAW) or the Optional Protocol to the Convention on the Rights of Persons with Disabilities (Optional Protocol to the CRPD) yet to assert her rights or have those rights clarified for the Australian context.

One of the most pronounced rights violations for Australian women with disabilities is the ongoing practice of forced, or involuntary, sterilisation.  A recent Senate Committee inquiry into this practice made many strong recommendations, but unfortunately the Committee stopped short of the single most important recommendation it needed to make: it recommended against banning forced sterilisation.  This inquiry was put into place after years of lobbying, and possibly represents the final domestic action to be taken to have forced sterilisation banned in Australia (unless there is an imminent threat to life or health).

Disability rights activists, specifically Women with Disabilities Australia (WWDA), have used UN treaty reporting processes over the last decade to clarify the situation on forced sterilisation and have been highly successful in achieving outcomes from various committees recommending that it should be banned unless there is an imminent threat to life or health of the woman concerned.[i]  Australia is about to report for the first time on its implementation of the Convention on the Rights of Persons with Disabilities (CRPD) and there is a strong expectation that another recommendation on forced sterilisation will result from this process.  Preliminary input by Australia’s NGO delegation has raised this issue with the Committee on the Rights of Persons with Disabilities (CRPD Committee), and further questions have been asked of Australia prior to its dialogue with the Committee in early September 2013.

Yet the results of the Senate Committee inquiry raise the pertinent question: what is the point of all the UN outcomes if the Australian Parliament will not recognise them? What further processes can disability activists undertake to progress our campaign?

The Optional Protocol to CEDAW and the Optional Protocol to the CRPD provide a strong opportunity for women with disabilities to go outside Australia’s legal system to seek redress for this ongoing rights violation. Individual cases can be considered under the Optional Protocols only when all domestic remedies have been exhausted; however, in the case of forced sterilisation, it could well be argued that there is no further domestic remedy available now that the Senate Inquiry has concluded.

The High Court in 1992[ii] and the UN have both made it clear that forced sterilisation is unacceptable.  However, the practice remains legal in Australia when approved by order of a state/territory-based tribunal.  With the Senate Committee baulking at recommending an outright ban, there seems no further capacity to use existing domestic mechanisms.

So why have no Australian women with disabilities used the Optional Protocol to CEDAW or the Optional Protocol to the CRPD to seek redress for being forcibly sterilised? Considering that WWDA and the disability rights movement have actively used the UN for the past decade, why haven’t these particular mechanisms been employed as part of the ongoing campaign to ban sterilisation?

The answer is both simple and highly complex.

Forced sterilisation is an incredibly personal experience for the women who have been subjected to it.  Usually it is those most closely related to them, and on whom they rely heavily and trust, who have also arranged for them to be sterilised.  Many women are so traumatised by understanding this that they feel restricted in being able to respond, either because they still have a close relationship to those concerned, or because they are so damaged by this realisation that their lives become focused on survival rather than retribution.

Other Australians have used UN Optional Protocol mechanisms to seek redress for human rights violations, but most of these cases would be categorised as clarifying matters of principle rather than as redress for violations of physical integrity.  Forced sterilisation is a procedure performed on the body of a person without their consent, or often without their knowledge.

While other individual communications originating from Australia have been extremely important, and taken great courage and resources, they have not related to matters of the physical integrity of the individual.  For anyone to take such a matter to the UN through an individual communication process requires enormous courage and persistence.  For women with disabilities it is an even greater expectation given that they are some of the most isolated and disadvantaged members of the community.  Additionally, the majority of women who have been forcibly sterilised are women with cognitive disabilities and/or significant communication barriers and/or significant physical disabilities.  These women struggle with basic survival in Australia where resources to support people with disabilities are generally very stretched and where the day-to-day organising of personal support needs is all-consuming.

Disability advocates support people with disabilities to resolve a wide range of day-to-day barriers and discrimination that they experience.  Despite every effort to streamline Australia’s discrimination complaints systems it is still very difficult for advocates to convince people with disabilities that they should make a complaint.  Most people with cognitive disabilities, or those who rely heavily on support services, are reluctant to “make a fuss” or to individually challenge the people that they rely on for day-to-day support. It is highly unusual for discrimination complaints to be undertaken by this marginalised group, it is even more unusual for them to use legal avenues to seek redress.

In this context it is easy to understand how approaching the Committee on the Elimination of Discrimination against Women (CEDAW Committee) or the CRPD Committees to seek redress, through Optional Protocol mechanisms, is simply too hard.  This doesn’t mean that it will never happen, but it will take enormous planning, support, and persistence for a woman with disability to take this route, and even then it is not unlikely that she may not persist with it.  A key barrier is that she will have to seek support outside her family networks, and that this external support must be strong and of long duration.

Any woman with disability who is courageous enough to make a communication on forced sterilisation using the CEDAW Optional Protocol or the Optional Protocol to the CRPD may well alienate her family, service providers, and community networks by doing so. This is a heavy consideration and would constitute a good reason to abandon such an action.

The benefits to women with disabilities of using the Optional Protocol to CEDAW or the Optional Protocol to the CRPD to challenge forced sterilisation are many.  Most pertinently it would raise UN communications to Australia to another level beyond treaty reporting recommendations.  Outcomes of treaty bodies are considered by governments to a greater or lesser extent, but specific Optional Protocol communications carry extra weight due to their specific nature and irregular frequency.  It would be difficult for any Australian Government to ignore a specific communication decided by the CEDAW or the CRPD Committees that indicated that forced sterilisation is a human rights violation and must cease.  This would be a powerful tool for rights activists to continue our campaign.  It would also be a clear message to the Australian community, judiciary and medical profession that sterilisation in the absence of the individual’s consent is unacceptable.  Cultural change is a major factor in overcoming disability discrimination and rights violations and an Optional Protocol communication would contribute enormously to community discussion.

Ultimately, it will probably transpire that the first uses of the Optional Protocols to the CRPD and CEDAW by Australians with disabilities will relate to other rights violations, and be communicated by individuals who experience less significant disability barriers, have strong family supports around them, and access to quality pro bono legal support.  They are unlikely to relate to matters of physical integrity, but rather to physical barriers or matters of principle about inclusion.

For this reason it is more likely that the Optional Protocol to the CRPD will be the tool used, as the CRPD specifically covers matters of accessibility and discrimination in areas like education, employment and living circumstances.  In fact, it is not unlikely that the first individuals with disabilities who use the Optional Protocol to the CRPD will be men given that they are generally more likely to have strong family supports, be discriminated against in more “palatable” ways, and have greater resources.

The CRPD Committee is relatively young, but it has already made some powerful Concluding Observations about “difficult” discrimination areas, for example supported decision-making.  Article 6 of the CRPD outlines the gendered impact of disability and how States Parties must consider the intersecting nature of multiple disadvantage experienced by women with disabilities.  

As the Australian Shadow Report to the CRPD Committee recognises several significant rights violations of article 6 of the CRPD, it is hoped the CRPD Committee will make strong Concluding Observations on the particular discrimination experienced by Australian women with disabilities.  Forced sterilisation is addressed in the Shadow Report alongside general sexual and reproductive rights (including the right to parent), and other specific areas like higher levels of violence and sexual assault, and restraint.

While the Optional Protocol to CEDAW remains a powerful tool for Australian women with disabilities to consider, it also presents particular challenges given the nature of discrimination and rights violations that they experience.  The CEDAW Committee recognised the multiple disadvantage experienced by women with disabilities in its 2010 Concluding Observations on Australia.  Additionally, the UN Special Rapporteur on violence against women undertook a study tour of Australia in 2012, in recognition of the consistent level of concern expressed by civil society, and heard further concerns about forced sterilisation directly from women with disabilities.

Perhaps it is time for these various UN human rights bodies to collaborate on how to address consistent messages about significant rights violations, rather than to wait for particularly marginalised individuals to use Optional Protocol mechanisms.  Is the UN presenting a further barrier, to people with disabilities who wish to seek redress, with its complex system that is daunting to the most capable and comparatively well-resourced members of our community?

Women with disabilities are not well resourced and are supported by civil society organisations that are also not well resourced.  This presents a particular barrier to individual action that may be insurmountable.  The Optional Protocols to CEDAW and the CRPD are both powerful mechanisms for people with disabilities to consider using, but do they present too many significant barriers and challenges to the very people they would most benefit?

Christina Ryan is the General Manager of Advocacy for Inclusion and an active member of Women with Disabilities Australia.  She represented WWDA on the Australian NGO delegation to the 2010 UN CEDAW Committee session, was a member of the official Australian Delegation to the UN Commission on the Status of Women 55, and represented WWDA at the International Conference on Women with Disability in Madrid delivering the keynote address on WWDA’s campaign to end forced sterilisation.

With many thanks to Yoko Hayashi for use of the featured photo of the Garden of Koutokuin Temple, Kamakura, Japan

[i] Committee on the Rights of the Child; Concluding Observations: Australia; UN Doc. CRC/C/AUS/CO/4 (2012); UN General Assembly Human Rights Council (2011) Draft report of the Working Group on the Universal Periodic Review: Australia, 2011, A/HRC/WG.6/10/L. 8 [para. 86.39]. The final document will be issued under the symbol A/HRC/17/10; Committee on the Elimination of Discrimination against Women, Concluding Observations: Australia, UN Doc. CEDAW/C/AUS/CO/7 (2010); Committee on the Rights of the Child, Concluding Observations: Australia, UN Doc. CRC/C/15/Add.268 (2005), paras 45, 46(e).

[ii] Secretary, Department of Health and Community Services (NT) v. JWB and SMB.