Campaigning for gender equality in nationality laws
1. Introduction
Twenty-seven countries1 deny mothers the ability to confer nationality on their children on an equal basis with fathers. Five countries2 maintain nationality laws that discriminate against unmarried fathers, denying them the right to confer their nationality on their children on an equal basis with mothers. In addition to violating the right to non-discrimination by explicitly discriminating on grounds of sex, these laws cause other significant and wide-ranging human rights violations including statelessness. In fact, gender discrimination in nationality laws is a leading cause of childhood statelessness.3
Historically, most countries around the world considered a child’s nationality to be derived from his or her father. However, over the course of the 20th century most states enacted reforms, recognising that not only do women deserve equality, but that society benefits when the children of all citizens — men and women — are included in the essential civil contract of citizenship. Despite the enactment of nationality law reforms in most countries to address this discrimination, gender discriminatory nationality laws persist in multiple regions, with many of these laws concentrated in the Middle East, North Africa, and Sub-Saharan Africa. While the majority of gender-discriminatory nationality laws deny women the same rights as men, all are rooted in outdated, unequal notions of gender roles and parenthood.
Today, there is growing recognition that gender equal nationality rights are critical to ensuring the rights of children, while being essential to achieving gender equality. While there are significant obstacles to realising reforms, in the past decade alone over a dozen countries have changed their law. The Global Campaign for Equal Nationality Rights (Global Campaign) was launched in 20144 with the mission to advocate for legal reforms to ensure that women and men have the equal right to acquire, change, retain, and confer their nationality on children and spouses. Following tireless advocacy by civil society, momentum for reform in a number of countries is building, with new laws advancing gender equal nationality rights currently being drafted by several governments.
2. Challenges
Recent reform efforts provide important insights into effective strategies and messages. They also illustrate the notably similar arguments and fears expressed by those opposed to reform — similarities made all the more obvious by common assertions of exceptionalism.
Many opposed to reforms maintain beliefs — spoken or unspoken — that the father’s ‘natural’ role is head of the household, the root of family identity, and thereby the rightful source of nationality. “We are a patriarchal society” was the answer given by one authority, when asked why women cannot equally confer nationality. Some maintain religious justifications, even though no religious text calls for citizenship to be derived from the father. In fact, gender discrimination in nationality laws is generally a legacy of colonial rule, not religion.
Those who understand family identity to be derived from the father, also frequently express fears that the children of foreign men will assume allegiance to the father’s country, even when the child was born in and lived only in the mother’s country. This in turn is frequently linked with perceived security concerns by the government. In Nepal for example, the open border with India is frequently cited as a justification for women’s unequal nationality rights, with fears expressed that intermarriage could result in the country being overtaken by the children of Indian men.
Across the globe, gender discrimination in nationality laws is often linked with other forms of discrimination — religious, ethnic, and/or racial — with xenophobia playing a notable role. In many places, gender-based discrimination disproportionately impacts individuals from marginalised ethnic or religious groups, especially when authorities have discretion to grant nationality to the children of women citizens in ‘exceptional’ circumstances, such as when the mother is single, paternity hasn’t been established, or the father is stateless. In Madagascar, while the law permits Malagasy nationality to children of single mothers, such individuals are often denied citizenship documents by authorities who claim that their name doesn’t ‘sound’ Malagasy – a justification often used by authorities in many countries. Many of the arguments used by those opposed to enacting reforms are quite similar to arguments used in debates regarding immigration policy and expanding access to citizenship more generally. For example, many opposed to reforms express fears regarding the loss of jobs, especially to foreign men, as well as, anxiety over potential loss of political power.
Somewhat ironically, a justification expressed almost universally by those opposed to reform is the ‘exceptional’ concerns of that country. Across regions and in varying contexts, political leaders justify the existence of gender discriminatory law because of ‘X’ unique concern, be it economic, political, or security-related. This is not to say that sexism does not inform the debate — it is fundamental to the acceptability of discrimination in the name of other goals — but rather that explicit arguments for women’s inferior legal status are rarely used. Many Lebanese political leaders assert that the country’s confessional system of government, which assigns political power according to the supposed size of religious communities (based on the outdated 1932 census), would be undermined if the law is reformed. The demographics of the country could change, the argument goes, so better to maintain the status quo at the expense of equality. Tellingly, similar concern is not expressed with regard to potential demographic shifts that may occur through granting citizenship to the children and spouses of Lebanese men and non-national women. Similarly, the Jordanian government cites the preservation of Palestinian identity as a reason for gender discrimination, even though gender discrimination is not only applied to Jordanian women with Palestinian husbands. Furthermore, Jordanian men confer nationality on Palestinian wives and children from those unions without question.5
States may have legitimate concerns regarding the acquisition of citizenship. However, such concerns can and must be addressed without resorting to discrimination, including on grounds of sex, as required under international human rights law. Unfortunately, many authorities and elected officials are unaware of their state’s international legal obligations.6 When there is an awareness of relevant international laws, many authorities portray such obligations as an affront to national sovereignty, dictated by ‘the international community.’ In fact, countries exert their sovereignty by voluntarily committing themselves to uphold international conventions.
Outside of international legal obligations, many discriminatory nationality laws are in contradiction with mandates for equality enshrined in national constitutions, which sometimes explicitly protect equal nationality rights. In some cases, the nationality law is in contradiction with other laws, though it is the discriminatory nationality law that is applied by authorities at the local level. In Togo, both the Constitution and the Children’s Code state that the children of Togolese fathers or mothers should have the right to citizenship, but the nationality law only permits mothers to confer their nationality if the father is stateless or of unknown nationality.
A lack of awareness among the public and policy makers regarding the existence of the problem and its impact poses additional challenges. In many instances, parents are not aware of their inability to confer nationality on their children, nor the impact this will have on daily life, until they are confronted with the situation. A related challenge lies in the fact that there is a lack of statistics on the number of individuals who are stateless because of gender discriminatory nationality laws. In many countries, the problem can be hidden from the public and policy makers, with affected individuals living in the margins, working in the informal sector, and afraid to disclose their situation, while suffering overwhelming hardships.
The question of gender equal nationality rights, like any political issue, can also fall victim to other political realities and challenges, such as when it is linked with other contentious issues or a political party/group. A 2016 referendum in The Bahamas, which would have eliminated gender discrimination pertaining to nationality rights, failed in large part because of false connections made between nationality reforms and same sex marriage, with the opposition counting on high levels of homophobia and dissatisfaction with the ruling party that was promoting reform.
In many countries that have enacted law reform, implementation remains a major challenge. It is not uncommon for some officials with deeply entrenched discriminatory beliefs to refuse to implement the law. For example, in Egypt, Morocco7 and other countries which have reformed their law, there are cases of authorities refusing to provide citizenship documents based on the mother’s nationality to children born out of wedlock or whose parents lack a marriage certificate, as well as children born out of inter-religious marriages. Furthermore, when laws are reformed, there are often insufficient resources devoted to training civil authorities and raising public awareness to ensure that affected populations may benefit from the reforms. In Indonesia and Kenya, even years after reforms had been enacted, local authorities and families who could benefit from reforms were not aware of women’s equal ability to confer nationality.8
The existence of other gender-discriminatory laws, including some personal status and penal codes, can also result in children being denied nationality. For example, inter-religious marriage and sex out of wedlock, even in instances of rape, are offences punishable by prison sentences or worse in a few countries. Consider the especially tragic example of a child conceived through rape in a country where the law permits mothers to confer nationality to children when the father is unknown, though sex outside of wedlock may result in imprisonment. Jordan, Saudi Arabia, and the U.A.E. all permit mothers to confer nationality to children when the father is unknown or paternity has not been established — rights that are severely compromised when the price for accessing them could be imprisonment or worse. Rape victims in many Gulf countries have been jailed and even sentenced to lashings.4 Consensual sex outside of marriage in Jordan can result in three years' imprisonment and children born out of wedlock are frequently, forcibly removed from their mother’s care. Because of mothers’ fears of persecution, children born in such circumstances may lack documentation needed to claim citizenship. Even where sex out of wedlock is not a criminal offence, discrimination by authorities or reticence to register children due to social taboos may result in children being denied nationality.
The existence of other gender-discriminatory laws, including some personal status and penal codes, can also result in children being denied nationality. For example, inter-religious marriage and sex out of wedlock, even in instances of rape, are offences punishable by prison sentences or worse in a few countries. Consider the especially tragic example of a child conceived through rape in a country where the law permits mothers to confer nationality to children when the father is unknown, though sex outside of wedlock may result in imprisonment. Jordan, Saudi Arabia, and the U.A.E. all permit mothers to confer nationality to children when the father is unknown or paternity has not been established — rights that are severely compromised when the price for accessing them could be imprisonment or worse. Rape victims in many Gulf countries have been jailed and even sentenced to lashings.9 Consensual sex outside of marriage in Jordan can result in three years' imprisonment and children born out of wedlock are frequently, forcibly removed from their mother’s care.10 Because of mothers’ fears of persecution, children born in such circumstances may lack documentation needed to claim citizenship. Even where sex out of wedlock is not a criminal offence, discrimination by authorities or reticence to register children due to social taboos may result in children being denied nationality.
Additionally, there is a strong link between gender discrimination in nationality laws and obstacles to accessing birth certificates. As described later in this article, Sustainable Development Goal (SDG) 16.9 — provide legal identity for all by 2030 — cannot be achieved without ensuring gender equal nationality rights for all. In contexts where nationality is almost universally accessed through the father, authorities frequently require marriage certificates before granting the birth certificates needed to secure citizenship through the paternal line. As previously referenced, women who have children out of wedlock are often denied birth registration documents, thereby compromising single mothers’ ability to secure citizenship for children, even when permitted by law.
In contexts of displacement, with access to documentation compromised and families often separated, the inability of mothers to confer nationality significantly increases the risk of children being born stateless. Today, with the greatest displacement since World War II, forced displacement and migration from countries with gender-discriminatory nationality laws threatens to create a new generation of stateless children, with the impact of gender discriminatory nationality laws on refugees, internally displaced persons and persons living in conflict contexts especially dire.11
3. Lessons learnt: creative and effective methods to mobilise for change
One mark of successful reform campaigns is the ability to share the stories of affected individuals,12 especially the negative impact of gender discriminatory nationality laws on the lives of children. This plays an important role in securing public support and action by policy makers. Whenever possible, it is especially impactful to facilitate opportunities for affected women and children to personally share the serious, negative impact of the law on their lives. This can be done through multiple forms of media — video,13 news articles, web profiles, and social media — and should ensure that affected persons can share their stories anonymously if desired. This has been a core and effective strategy in the campaign for women’s nationality rights in Lebanon,14 where affected children and their families are frequently front and centre at sit-ins before parliament, garnering significant media attention.15
Another effective strategy is to appeal to traditional values centred on family unity and the wellbeing of the national family. For example, as part of their successful efforts to secure support for women’s nationality rights in the new Constitution, Kenyan activists including the Federation of Women Lawyers-Kenya, appealed to grandparents,16 especially grandfathers, to imagine their grandchildren being told they did not belong and were not Kenyan, simply because their daughters married foreign men. When such a personal connection is made and citizens are confronted with the idea of the potential impact on their own family, many can be convinced to support reforms.
Similarly, it is often beneficial to emphasise that, rather than being in contradiction with religious tenants, ensuring children’s access to their mother or father’s nationality is very much in line with religious values that advance the wellbeing of the child and sanctity of the family. It is important to note though, that as non-discrimination, equality and the right to nationality are human rights obligations, advocacy for gender equal nationality rights need not be framed as being reliant upon religious justifications — in fact such arguments can undermine the long-term advancement of universal human rights norms. Rather, highlighting the link between religious values supportive of children’s wellbeing and family unity and the advancement of gender equal nationality rights is often an important complement to other key messages.
While obligations to uphold international conventions are disregarded by some governments, many have an interest in their country’s international reputation, including perceptions around their human rights record. Periodic reviews by human rights bodies provide useful opportunities to highlight state failures to uphold human rights obligations and have been shown to influence reform processes in a number of cases. At the Human Rights Council side event, “Women’s Equal Nationality Rights in Law and Practice,” held during the 32nd session of the Council,17 representatives of Algeria and Madagascar emphasized that attention by human rights mechanisms encouraged their governments to advance women’s nationality rights. However, while interventions at the international level can be an important component of advocacy, civil society-led advocacy at the national level, including through following up on international human rights bodies’ recommendations and commitments made by governments at the international level, is critical to achieving reform.
Most successful campaigns have been framed around strong calls for gender equality. In fact, in many contexts it is easier to approach this issue from a gender equality perspective than to have an emphasis on combating statelessness — a problem many governments are loathe to acknowledge. There is a growing international consensus that it is in societies’ benefit to end discrimination against women and even in some of the most gender-discriminatory contexts, states are seeking to present themselves as supportive of women’s empowerment. Most governments have made numerous international commitments to this effect, with all but six18 having ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which explicitly obliges States to ensure gender equal nationality rights (Article 9), while also obliging States to end discrimination against women in all legislation (Article 2).
In some contexts, it is strategic to link nationality law reform with other efforts to advance gender equality. For example, Algeria’s nationality law reforms were undertaken as the country engaged in a review of the family code to advance women’s rights. In some instances, there is ripeness for nationality law reforms in the wake of other substantial reforms for gender equality, such as in the case of Morocco where women’s right to confer nationality to children was achieved following ground-breaking reforms to advance women’s rights in the family code, Moudawana.19 Constitutional review processes provide another entry point. It was through such a Constitutional review that Kenyan women’s rights activists secured women’s ability to equally confer nationality to children and spouses. Activists have also leveraged government initiatives to harmonise national legislation with international legal commitments under CEDAW and CRC, a process that has also at times been driven by new or amended Constitutions calling for such harmonisation. This approach can also come with significant challenges. For example, The Bahamas June 2016 referendum failed in large part because of misinformation and inflammatory rhetoric regarding a broader gender equality bill linked with the referendum.20
The SDGs provide significant entry points as well. Gender-discriminatory nationality laws clearly contradict SDG 5, “Achieve gender equality and empower all women and girls,” which includes target 5.1 “End all forms of discrimination against all women and girls everywhere,” and SDG 16, which seeks to promote peaceful and inclusive societies and includes target 16.9, “by 2030, provide legal identity for all, including birth registration.” However, given the wide-ranging human rights violations that result from these laws, they in fact negatively impact nine out of the seventeen SDGs.21 Importantly, linking the SDGs with nationality rights facilitates discussions around the negative impact of discriminatory nationality laws on economic development, a priority area for most governments including some less concerned with human rights obligations. As governments are presently working to develop SDG national action plans, activists have an opportunity to highlight the linkages with discriminatory nationality laws and advocate for reforms to realise the SDGs.
Cross regional collaboration has also been vital to successful reform movements. The regional Arab Women’s Right to Nationality Campaign,22 launched in the first decade of the 21st century, provides a strong example of the power of regional exchange and solidarity. Through this campaign, leading women’s rights organisations across the region provided mutual support in developing advocacy strategies, shared lessons learned, and provided solidarity during multi-year advocacy campaigns. By the end of the decade, reforms were achieved in eight countries: Algeria, Egypt, Iraq, Morocco, Libya, Palestine, Yemen, and Tunisia. The impact of such exchanges between activists was evident in recent interventions undertaken in Bahrain by the Global Campaign and coalition member Bahrain Women Union. By facilitating the participation of an Egyptian activist who had been heavily involved Egypt’s successful nationality reform campaign, Bahraini parliamentarians learned about the positive impact of the reforms in Egypt and subsequently requested a copy of the Egyptian law to inform national reform efforts. Furthermore, the Egyptian activist was able to impart lessons learned to Bahraini NGOs, who integrated successful strategies into the ongoing national effort.
Women’s rights groups have traditionally led the fight for women’s equal right on confer nationality to children and make up the majority of coalition members of the Global Campaign for Equal Nationality Rights. Given the impact of gender discriminatory nationality laws on children’s human rights, it would be strategic for campaigns for women’s nationality rights to engage organisations and activists focused on other issue areas – such as access to education, healthcare and children’s welfare – in the international effort to ensure men and women’s equal ability to confer nationality on their children. By expanding our coalitions, learning from successful campaigns, and building on recent momentum for reform through increased pressure at national, regional, and international level, activists today have a real opportunity to eradicate gender-discriminatory nationality laws, thereby eliminating a leading cause of childhood statelessness and a key barrier to achieving equality between women and men.
* Based at Women's Refugee Commission, Catherine Harrington is Campaign Manager for the Global Campaign for Equal Nationality Rights, a coalition of NGOs, UN agencies, and activists working to end gender discrimination in nationality laws. She previously worked at Women's Learning Partnership (WLP), where she was the Senior Program Officer for Advocacy and Communications. Catherine holds a Master of Science in Global Affairs from New York University and a Bachelor of Arts in History from Tulane University.
1 See http://equalnationalityrights.org/the-issue/the-problem
2 Ibid.
3 Reform of gender-discriminatory nationality laws is listed as Action 3 in UNHCR’s ten-year Global Action Plan to End Statelessness.
4 by its Steering Committee members – Women’s Refugee Commission, which houses the Global Campaign, Equality Now, Equal Rights Trust, the Institute on Statelessness and Inclusion, and UNHCR –
5 While the Arab League previously encouraged Arab states to not grant citizenship to Palestinian refugees to protect their right to return, the League has subsequently asserted that the acquisition of other citizenship has no connection with the right to return – a fact that has been emphasized in regards to the many children of Egyptian women and Palestinian men who now hold Egyptian citizenship. “Egypt reiterates children with Palestinian fathers get citizenship,” Ma'an News Agency, September 23, 2012, available at: http://www.maannews.com/Content.aspx?id=522755
6 Gender discrimination in Nationality Laws results in violations of the Convention on the Elimination of All Forms of Discrimination against Women (Articles 2 and 9) and other international human rights conventions, including the Convention on the Rights of the Child (Articles 2, 7 and 8) and the International Covenant on Civil and Political Rights (Articles 2, 3, and 24).
7 Women’s Refugee Commission, Tilburg University, Our Motherland, Our Country: Gender Discrimination and Statelessness in the Middle East and North Africa, June 2013.
8 Equal Rights Trust, My Children's Future: Ending Gender Discrimination in Nationality Laws, September 2015
9 An especially horrific example includes the case of a Saudi victim of gang rape sentenced to six months in jail and 200 lashes. “Rape victim sentenced to 200 lashes and six months in jail,” The Guardian, November 17, 2007, available at: https://www.theguardian.com/world/2007/nov/17/saudiarabia.international
10 “Getting away with sexual abuse in Jordan,” IRIN News, January 27, 2014, available at: http://www.irinnews.org/report/99544/getting-away-sexual-abuse-jordan
11 See for example, Institute on Statelessness and Inclusion, Understanding statelessness in the Syria refugee context, (2016), available at http://syrianationality.org/pdf/report.pdf
12 Equal Rights Trust, Ending Gender Discrimination in Nationality Laws - Sapana's Story (2015) available at https://www.youtube.com/watch?v=GtIlhGSIM80
13 BarefootWorkshops, "Nationality" (Arabic) (YouTube, 2009), available at https://www.youtube.com/watch?v=-KfblwFui60
14 See https://nationalitycampaign.wordpress.com/
15 The Daily Star, ‘Lebanese women demand right to pass on nationality to children’ (2014), available at http://www.dailystar.com.lb/News/Lebanon-News/2015/Nov-04/321661-lebanese-women-demand-right-to-pass-nationality-to-children.ashx
16 Equal Rights Trust, The Impact of Reform: Stories from Indonesia and Kenya (YouTube, 2015), available at https://www.youtube.com/watch?v=ZJfI3wrEXY4, (min 5:06-48)
17 See http://equalnationalityrights.org/news/66-event-women-nationality-human-rights-council
18 Iran, Somalia, Sudan, Tonga and the United States have not ratified CEDAW.
19 ‘Moroccan feminist groups campaign to reform Moudawana (Personal Status Code/Islamic family law), 1992-2004’ (1994-2004) Global Nonviolent Action Database, available at http://nvdatabase.swarthmore.edu/content/moroccan-feminist-groups-campaign-reform-moudawana-personal-status-codeislamic-family-law-19
20 The Nassau Guardian, ‘The challenge for a new generation’ (2016), available at http://www.thenassauguardian.com/opinion/editorial/65387-the-challenge-for-a-new-generation
21 SDGs negatively impacted by gender discrimination in nationality laws: SDG 1 No Poverty; SDG 3 Good Health and Wellbeing; SDG 4 Quality Education; SDG 5 Gender Equality; SDG 8 Decent Work and Economic Growth; SDG 10 Reduced Inequalities; SDG 16 Peace, Justice and Strong Institutions 22 See http://crtda.org.lb/project/nationality