Posted by Anya Marcelis

(En)gendering human rights due diligence: a ‘transformative’ UNGPs framework

Anya Marcelis and Aurelie Duchesne write:

New guidance from the UN Working Group on Business and Human Rights ‘Gender dimensions of the Guiding Principles on Business and Human Rights’, which has just been presented to the UN Human Rights Council, is the result of more than two years of research and consultations to develop a gender framework and gender-specific guidance fitted to the UN Guiding Principles on Business and Human Rights (UNGPs). It provides practical guidance and recommendations to States and businesses on developing and integrating a gender perspective in their implementation of the UNGPs. This report belongs to a larger body of growing context, sector or issue-specific guidance aiming to supplement the UNGPs, such as UNICEF’s Children’s rights & business principles, and should be welcomed as a potentially significant milestone in the development of gender-inclusive business practices.

The framework is based on an important premise: there are significant potential adverse effects to taking a gender-neutral approach to human rights due diligence. “To avoid any doubt” the report points out, “it should be stressed that a gender perspective is always appropriate for all States and businesses in all situations.”

Firmly rooted in the UNGPs, the framework provides an opportunity to be easily incorporated into existing programmes and policies. Key points include:

  • Each guiding principle provides suggestions for concrete (illustrative) actions to be undertaken by States and business to integrate a gender perspective within legislative and corporate frameworks.
  • The framework recognises that there are power imbalances in societies and within businesses which lead to/create risks of adverse impacts on women, and that gender-neutral approaches are not only inadequate but can cause unintentional harm to women.
  • To improve or respect women’s human rights, ‘gender’ cannot be considered as a standalone issue, but as an overall equality issue that has impacts on every level of business and States, in every department.
  • Significant capacity building is necessary and important, both at a business and State-level, to change social norms and to ensure the achievement of gender equality – this is not simply an economic issue, but a deeply political and cultural one which requires changing mindsets at a structural level.
  • States and business need to ensure the participation of women in consultations related to gender-responsive assessments, and in decision-making relating to gender-transformative measures and remedies, and should integrate women in leadership positions and across all levels of business and public sectors.
  • Measurement of impact needs to include engagement with women directly affected by negative impacts, but also with women’s organisations and local community groups.
  • Measures and remedies should be ‘transformative’, i.e. capable of “bringing about systematic changes in discriminatory power structures.”
Why is a ‘gender framework’ relevant?

Efforts such as the World Benchmarking Alliance (WBA)’s Gender Equality and Empowerment benchmark demonstrates private sector willingness to engage with these notions and address these issues within their operations or supply chains. Additionally, Development Finance Institutions (DFIs) have been mobilizing funds to support women access leadership positions, while the ILO is prioritising gender-based violence in this centennial year by adopting a new Convention on the elimination of violence and harassment in the word of work. In May, more than 50 international, regional and national standards organisations have become signatories to the Declaration on Gender Responsive Standards and Standards Development (a UNECE initiative).

Nevertheless, every day, women face significant challenges in the global economy: widespread discrimination and harassment or violence at work, increased vulnerability to exploitation, economic pressures to work with simultaneous social pressures to undertake unpaid care, and exclusion from decision-making. States and companies’ efforts are often criticised as being insufficient or inadequate to bring about real change and can be characterised as treating gender as an ‘add-on’ or ‘tick-box exercise,’ or focusing on outcomes rather than recognising and addressing its structural dimensions.

Against this backdrop, the new UN ‘transformative’ gender framework has the clear and core ambition to tackle root-causes, leading with the notion that structural issues call for structural changes.

Building on the ‘Protect, Respect and Remedy’ framework: UNGPs 2.0?

The gender framework is built on a three-step cycle parallel to the three pillars of the UNGPs, stipulating that any effective and compliant implementation of the UNGPs is a ‘gender-transformative’ one.

The first step is to undertake a ‘gender-responsive assessment’ (including gender-disaggregated data collection, consulting gender-sensitive experts and engaging with women’s organisations). The second and third steps are to develop and implement ‘gender-transformative measures’ that will “achieve substantive gender equality in all spheres of life,” and ‘gender-transformative remedies’ with preventive, redressive and deterrent dimensions.

Key consequences and highlights for companies

The framework encourages businesses to be proactive and gender-inclusive in every dimension, and provides illustrative examples of actions, such as:

  • Broadening human rights policy frameworks/commitments to include relevant specific international norms and principles such as the Convention on the Eliminations of All Forms of Discrimination against Women.
  • Implementing zero-tolerance policies towards sexual harassment and gender-based violence and discrimination in the workplace and to consider these issues as risks of severe and irremediable human rights impact.
  • Embedding gender issues across all business activities, rather than limited to diversity, inclusion or human resources issues.
  • Reviewing, through a gender lens, human rights risk assessments, due diligence processes, remedies and grievance mechanisms, with particular attention to ‘intersectionality’ (the cumulative grounds on which women can be discriminated against).

Finally, beyond recommending that enterprises respect all relevant national laws, the guidance encourages businesses to use their leverage to positively change discriminatory norms or practices in a country and “explore innovative ways to uphold women’s international human rights.”

Can it be a vehicle for achieving structural change?

Given that significant rules and guidance exist on ‘what’ States and businesses should and should not do regarding women’s human rights or gender equality, this framework seeks to stimulate answers as to ‘how’ to implement these standards.

Consistent with its ambition, the framework benefits from a maturity in analysis gained since the adoption of the UNGPs: achieving structural change on gender, as well as other issues, requires not only a recognition of root causes and power dynamics, but also specific and concrete actions. Further, recommendations are directed at the broader business and human rights ‘ecosystem’: experts and consultants, stock exchanges, industry associations and investors, international financial institutions, national human rights institutions, civil society organisations, trade unions, human rights defenders and the legal profession.

In the context of emerging mandatory due diligence legislation, this framework may fuel national debates and lead to legislative propositions. Similarly, civil society organisations will use this framework to demand gender-transformative responses by the private sector. With increasingly higher expectations on the private sector to positively contribute to gender equality, progressive and leading companies are likely to take ownership of the framework and include it as part of the SDGs Agenda.