As a human rights organization committed to the advancement of rights for all people, and with the knowledge that gender equality is necessary to achieve that end and is that end itself, we write to express our profound concern with USAID’s “2020 Gender Equality and Women’s Empowerment Policy” released Wednesday, August 19, 2020, for public comment.  Amnesty International USA submits these comments as part of a global movement of millions of supporters, members, and activists in more than 150 countries and territories who campaign to end grave abuses of human rights. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We are independent of any government, political ideology, economic interest, or religion.

The current draft undermines human rights for women and girls by reducing and qualifying rights language.

The draft uses terms such as “unalienable rights” (pgs. 5, 10, 16, 25) “basic rights” (pgs. 3, 9) or “legal rights” (pgs. 3, 9, 10) – and it separates “civil” from “human rights” (pg. 5).  These qualifications and separations weaken human rights protections for women and girls and undermine international treaties and agreements to which the United States is a party.  Nowhere in the policy does it state that gender equality is a right in and of itself, which it is.  The right to equality, regardless of gender, is included in multiple international treaties and agreements to which the United States is a party, including the Charter of the United Nations, Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination.

The qualification of rights (“unalienable” or “basic” or “legal”) and the separation of civil rights from human rights perpetuates a false understanding of human rights, privileging certain rights over others. Particularly, the term “unalienable rights” clearly a reference to the State Department’s Commission on Unalienable Rights, which has been roundly criticized by mainstream human rights organizations, including Amnesty International, and which weakens human rights protections and ultimately undermines gender equality.  Imposing a faulty concept of “unalienable rights” creates a hierarchy of rights, and as the current State Department has demonstrated in its report on “unalienable rights” and through comments of the Secretary of State, women’s rights, LGBTI rights, and sexual and reproductive rights are at the bottom of that hierarchy.

In the “Report of the Commission on Unalienable Rights” and in comments by Secretary of State Pompeo, “unalienable rights” is defined in a way that creates a hierarchy of rights that prioritizes religious freedom and property rights over equality grounds and resurrects a troubling US history of seeking to undermine the standards and development of international human rights law in order to deny internationally recognized human rights to some rights-holders based on discriminatory motives. By imposing a false hierarchy of “unalienable rights” the State Department is advocating for the de-prioritization of socioeconomic rights, including by putting increased emphasis on rights interpreted through specific American documents, rather than those guaranteed in international treaties that bind the United States and other governments. It is a retreat from the human rights framework and threatens gender equity.  The work of the commission itself was illegitimate

and the use of “unalienable rights” in this document further discredits this draft.

Additionally, focus on “legal rights” throughout the document as a framework for gender equality proposes a simplistic and ineffective understanding of rights and equity.  The focus on legal rights depends on a law or statute already in place in a given context, which already assumes this law or statute is human rights compliant, instead of focusing on the actual ability of women and girls to exercise that right.  By refusing to use universally declared and accepted human rights terminology, this policy removes USAID’s gender equality efforts from the larger international human rights framework and provides a vehicle for the U.S. to exempt itself and its international aid efforts from being held accountable to these same frameworks.

USAID should omit qualifying language for rights and instead root itself in unqualified human rights language and frameworks to which the United States is a party and which are essential to ensuring gender equality.

The current draft narrows and politicizes reproductive health.

All individuals have reproductive rights, which are grounded in a constellation of fundamental human rights guarantees found in human rights instruments, treaties, and agreements to which the United States is a party.  The human rights key to reproductive rights include: The Right to Life; The Right to Liberty and Security of Person; The Right to Health, including Sexual and Reproductive Health; The Right to Decide the Number and Spacing of Children; The Right to Consent to Marriage and to Equality in Marriage; The Right to Privacy; The Right to Equality and Non-Discrimination; The Right to be Free from Practices that Harm Women and Girls; The Right to Not be Subjected to Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment; The Right to be Free from Sexual and Gender-Based Violence; The Right to Access Sexual and Reproductive Health Education and Family Planning Information; and The Right to Enjoy the Benefits of Scientific Progress.

The draft policy provides a narrow and incomplete perspective on reproductive health, diminishing it to only focus on maternal health and family planning; it ignores that comprehensive reproductive health access is necessary to achieve equality and empowerment. The policy unnecessarily politicizes sexual and reproductive health, including by defining the lifespan as beginning “before birth,” a concept that has no basis in international human rights law and agreementsThe policy only promotes fertility awareness methods, rather than all modern contraceptive methods that must be available for individuals to have free and informed choice over family planning decisions; it primarily addresses fertility and family planning discussions as occurring between spouses at the exclusion of people who want access to family planning and reproductive health care outside of marriage.

The policy should focus on evidence-based content to advance sexual and reproductive health by addressing the global unmet need for contraception, access to the full range of modern contraceptive methods, and providing comprehensive sexuality education and reproductive health access to young people to help them determine their own health and life outcomes. Gender equality is impossible without bodily autonomy, access to comprehensive health services, and reproductive freedom, and any policy that purports to support gender equality while narrowing and politicizing reproductive health and sexual and reproductive rights will not only fail to achieve gender equality but also has the potential to dangerously undermine advances toward gender equality.

USAID should include more expansive reproductive health references and understandings and align itself with sexual and reproductive rights language and frameworks to which the United States is a party.

The current draft is dangerously regressive with regards to inclusivity and its lack of understanding of intersectionality.

Women and girls experience the world as complex individuals who experience multiple layers of inequality that undermine gender equality and women’s and girls’ empowerment.  Yet the draft has removed references to critical language affirming the inclusivity of people “regardless of age, sexual orientation, gender identity, disability status, religion, ethnicity, socioeconomic status, geographic area, migratory status, forced displacement, or HIV/AIDS status” from the previous draft, and has removed several references to the marginalization of people based on “ethnicity, gender identity, sexual orientation, lack of income, disability or other factors,” and the definition of “gender identity.” The actions of removing the above references and neglecting to bring an even stronger focus demonstrate not just failure in this regard but a clear regression.

What’s more, the draft lacks any reference to lesbian, gay, bisexual, transgender, genderqueer, or intersex (LGBTQI) people, including explicitly removing a reference from the last draft to violence against LGBT people in a definition of gender-based violence.  The draft also removes any reference to sexual orientation or gender identity.

The policy should specifically acknowledge that women and girls are not homogeneous groups and should not be treated as such.  The policy should include language that affirms the inclusivity of people and the necessity of understanding people’s intersectional identities when seeking to promote gender equality.

The current draft has eliminated social norms approaches, revealing a dangerous lack of understanding as to the structural realities that cause and perpetuate gender inequality.

Decades of development evidence and practice have shown that achieving gender equality and women’s empowerment requires work to change discriminatory social norms, roles, structures, power imbalances, and institutions that perpetuate inequality. The draft fails to centralize this point; it offers no power analysis and it does not outline any strategy, mechanism, or approach to achieve gender equality.

In one example, the definition of “Gender Equality” (pg. 9) was changed dramatically from the original 2012 draft. The updated definition focuses on “opportunity” as the main issue for equality, ignoring the structures that create inequality (including a lack of opportunity).  The 2012 draft included some of these causes, including: “attitudes, behaviors, roles and responsibilities at home, in the workplace, and in the community.” The 2012 draft also noted that “Since the roles and power relations between men and women affect how an activity is implemented, it is essential that project managers address these issues on an ongoing basis.”  There is no way to create “opportunity” for equality without addressing these underlying causes.

The deletion of this language from this updated draft is perhaps most disturbing in the lack of expertise it demonstrates in development and gender, pointing instead to a politically-motivated focus on specific economic measures that address only the symptoms and not the root causes of gender equality.

The policy should reinstitute language from the current (2012) policy that includes understandings of root causes, including social norms, as critical to achieving gender equality.

The current draft deletes references to gender-based violence, misunderstanding the centrality of preventing and responding to gender-based violence to ensuring gender equality.

Gender-based violence” (GBV) is no longer defined in the 2020 draft policy, including explicitly cutting the definition included in the 2012 version. The 2020 draft policy further offers much less emphasis on intimate partner violence (IPV) than the 2012 policy and frames IPV in terms of secondary impacts on children and notes only that “programs to prevent and respond to violence that address both boys and girls, and focus on breaking the cycle of violence, can effectively reduce future sexual violence” without referring to reduction in non-sexual physical, psychological, or other abuse (26).  This is a drastically incomplete understanding of the centrality of IPV and gender-based violence to gender inequality.  Mentions of GBV survivor support are incredibly basic and overly general. Comprehensive survivor support is a critical part of GBV response and prevention of future violence and should be more robustly discussed in this USAID gender policy.

The GBV and legal reform section discusses only laws that are introduced or countries where legal reform to protect women from sexual harassment or FGM/C. The draft fails to mention anything related to access to justice, alternatives to legal recourse, or the impacts of legal reform on reducing or responding to GBV (27).

The GBV section included does not reference the particular vulnerabilities of lesbian, trans women, intersex or gender non-conforming individuals despite well-established evidence that these communities are largely targeted for violence as a result of their sexual orientation or gender identity. The section also does not reference intersectionality and the particular vulnerabilities to GBV of people based on racial, ethnic, ability, age, or other intersectional factors despite strong evidence that they are highly exposed.

Finally, the shortened comment period and lack of engagement with civil society on this policy is unacceptable and undermines the legitimacy of this policy.  The announcement of the Policy’s impending review came out more than a year ago, and from the moment of that announcement, civil society members clearly articulated community requests for opportunities to review, provide feedback, and inform the process. Civil society has sent letters to Agency leadership, met with relevant officials, and been assured that there would be opportunities to provide considered and substantive review. After more than a year of waiting, the draft was rushed through an internal clearance process that may be in violation of the Agency’s own policy (ADS-200), with internal feedback due within a week and then not incorporated before it was turned around for public comment within hours on the same day (Wednesday, August 19th). Public comment is similarly rushed, with less than one week allowed for review.  This is a timeline that shows a deep disregard for meaningful participation from civil society experts who not only have decades of experience and expertise in this exact subject, but also have previously strengthened USAID’s work in the past.

We strongly encourage USAID to address the above concerns and to put the implementation of this policy on hold until meaningful engagement with civil society can take place and a policy draft can be revised that will truly promote gender equality.