Due diligence laws must not leave women behind
This blog is part of a series 'Towards Mandatory Human Rights Due Diligence'.
The adverse human rights impacts of corporate activities are by no means gender neutral. In our work in the Global South, we see time and time again how business activities can lead to gender‐specific harms and discrimination, or exacerbate existing gender roles and structures within a community. Furthermore, when seeking redress and remedy, womxn [see explanation of "womxn" below] face additional barriers to justice, despite being on the frontlines worldwide in defending rights against powerful multinationals.
Like womxn in mining communities whose care burden increases due to pollution from mining activities, for example by having to look for alternative water sources for their household chores, but who are not able to enjoy the benefits that men enjoy, such as a job in the mine. Female farmers who lose their land to large agribusiness but who cannot claim any compensation because they are excluded from land ownership. Or the female workers in factories in Bangladesh and Pakistan facing daily harassment, violence and sexual misconduct.
womxn face additional barriers to justice, despite being on the frontlines worldwide
While there is increasing international recognition of the differentiated and disproportionate impacts of business activities on womxn, such as the gender chapter in the 2018 OECD guidance and the upcoming UN Working Group report, this awareness has yet to translate into anything meaningful in practice.
States have not paid adequate attention to gender equality in carrying out their duties under the Guiding Principles - for example, most national action plans on Business and Human Rights do not include a gender perspective.
And we see only too often how companies conducting due diligence fail to integrate gender considerations in their efforts, allowing for considerable gaps in the implementation of their responsibility to respect womxn’s human rights.
Gender-blind due diligence: a dangerous trap
These gaps often begin right at the start of companies’ due diligence journey, in their efforts to identify and assess the potential human rights risks and impacts of their activities. A gender-blind approach is a dangerous trap, given that gender injustices rarely become apparent in standard risk assessments.
Measures can be so misguided to the point of actually reinforcing gender inequalities
Risk identification processes that do not take into account stark worldwide gender inequality and the fact that womxn face specific risks and barriers - independent of sector and geography - undoubtedly lead to preventative and mitigating measures that are ineffective for womxn, whether workers or those in the affected communities.
At worse, those measures can be so misguided to the point of actually reinforcing gender inequalities. For example, large buyers in the garment sector may identify freedom of association as one of the salient risks in their supply chains, and respond to it by collaborating with factories to establish worker committees. Yet if these committees do not meaningfully include womxn - who are concentrated in the lower positions in garment factories - such committees may fail to recognize their needs when representing workers, and may exacerbate gender inequality within the factory.
When legislating in the area of business and human rights, States must treat gender equality as a cross-cutting issue, ensure that corporations take into account the potential differentiated impact of their activities on womxn and men and guarantee gender-sensitive remedy.
What this means for due diligence legislation
In order for states to fulfil their existing human rights and gender equality obligations, gender considerations need to be reflected in emerging due diligence legislation, or we risk adopting laws that will leave womxn behind. The integration of a gender perspective in due diligence laws is rightfully also one of the key recommendations in the UN Working Group on Business and Human Rights’ new report on Gender dimensions of the UNGPs - which will be presented on 26 June 2019.
If womxn’s rights and needs are not taken into account in the development of these laws to begin with, it may take years before these gaps are corrected. And it goes without saying that the laws must also be carefully designed to avoid that gender equality and womxn’s rights become only a tick-box exercise within the due diligence processes and practices of companies.
To ensure this does not happen, consultations during the drafting of the laws must include womxn workers, gender experts, womxn’s rights organisations and feminist movements. Legislation should require companies to conduct due diligence that is gender-responsive, paying particular attention to multiple or aggravated forms of discrimination and identifying overlapping vulnerabilities; and should be accompanied by specific guidance for companies on the issue.
Last but not least, if emerging legislation includes a liability element, it must be ensured that womxn will benefit equitably from any remedies that may be provided for rightsholders under the law in the case of corporate-related human rights violations. That means ensuring that the law takes into account the specific barriers that womxn face when trying to access justice and remedy and that it is designed in such a way that these gender-specific barriers can be bridged in practice.
Time to be proactive now rather than pick up the pieces later
Legislative processes for due diligence, whether at the national, regional or international level, are a major opportunity to guarantee that businesses do not harm womxn’s human rights, as well as to improve business activities’ contribution towards gender equality in a more coherent, rights-based approach. Let’s not miss this opportunity.
For more information, contact:
Kelly Groen is Policy & Campaigns Officer at ActionAid Netherlands, [email protected]
Lis Cunha is EU Policy Officer on Corporate Accountability and Tax Justice at ActionAid International, [email protected]org
 Although to the untrained eye this might seem like a typo, we purposefully use ‘womxn’ throughout this article to make an effort to use inclusive language. Womxn is a definition that explicitly does not only include cis-women. This is in order to underscore inclusivity and intersectionality and to stress that the disproportionate impacts of business activities do not only impact women but all people subjected to intersecting forms of discrimination.