The Yale Law Journal

VOLUME
131
2021
NUMBER
1
October 2021
1-369

Not Hers Alone: Victim Standing Before the CEDAW Committee After M.W. v. Denmark

International Law

abstract. M.W. v. Denmark constitutes the first case in which the Committee on the Elimination of Discrimination against Women (CEDAW Committee) granted victim standing to an individual who did not identify as a woman to allege a violation of their rights under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This Note argues that the CEDAW Committee should embrace and expand on its admissibility decision in M.W. v. Denmark by allowing any individual to allege CEDAW violations without restriction on the basis of sex, gender, or gender identity.

author. Jessica Tueller (Yale Law School, J.D. 2021) is a Robina Fellow at the Inter-American Commission on Human Rights. The author would like to thank Professors Michael Reisman and Ali Miller for their feedback on early drafts of this Note and the editors of the Yale Law Journal, especially Jackson Busch, for their assistance in preparing this piece for publication. Thanks also to Jakob Schneider, Ivaylo Petrov, and Anne Kawuki for facilitating access to the admissibility decision in M.W. v. Denmark as well as for granting permission to cite and excerpt from the decision. Special thanks to Anya Allen, Jiho Park, and Andy Secondine for their review of and contributions to the paragraphs concerning the text of Article 2 of CEDAW’s Optional Protocol in Russian, Chinese, and Arabic, respectively.

Introduction

In 2012, an Austrian national, M.W., submitted an individual communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee), alleging that Denmark had violated the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).1 At first glance, M.W.’s case appears to be a straightforward domestic-violence and parental-rights dispute.2 Earlier, in 2007, M.W. had attempted to file a police report against her abusive husband, S., but Danish authorities believed her husband’s account and arrested M.W. instead.3 Then, in 2012, after M.W. and S. had separated, S. and an accomplice kidnapped O.W., the young son of M.W. and S.4 Rather than reunite M.W. with her son, Danish authorities granted S. custody over O.W.5

The twist? Instead of asserting that only her rights under CEDAW had been violated, M.W. alleged that O.W.’s rights had been violated too.6 Denmark argued that this was impossible: “[O]nly women whose rights under the Convention have been violated, and not boys such as O.W., can claim to be victims.”7 But the CEDAW Committee rejected Denmark’s argument, finding that O.W. had victim standing.8 For the first time in its history, the CEDAW Committee heard allegations of discrimination against a victim who did not identify as a woman.9

Only seven years old at the time the CEDAW Committee issued the admissibility decision in M.W. v. Denmark, O.W. was probably too young to appreciate the unprecedented access he had gained to this unique and influential human rights mechanism. CEDAW is the only United Nations (UN) treaty solely dedicated to eliminating discrimination against women, and the CEDAW Committee is the treaty body that monitors State compliance with its terms. One function of the CEDAW Committee is to receive “communications” directly from individuals who, like M.W. and O.W., allege that a specific State, in a specific instance, violated their rights under CEDAW.10 If an individual does not have victim standing, however, the CEDAW Committee will find that individual’s communication inadmissible and will not issue a decision on the merits.11 An individual lacking standing thus has no opportunity to present the substance of their claims before the CEDAW Committee, let alone to secure the authoritative finding that their rights have been violated, any recommendation as to how the violation should be remedied, or the international publicity that the Committee’s decisions provide. Nor does an individual lacking standing have the opportunity to shape the interpretation and evolution of CEDAW, as individuals whose communications are admitted can do.12 Whether individuals who do not identify as women can gain standing to allege CEDAW violations and, as a result, what claims the CEDAW Committee hears, are thus crucial questions not only for the provision of relief to individual victims of sex- and gender-based discrimination, but also for the ongoing development of CEDAW itself.

This Note argues that the admissibility decision in M.W. v. Denmark paves the way for a more inclusive interpretation of victim standing before the CEDAW Committee—one that includes any individual alleging CEDAW violations, without restriction on the basis of sex, gender, or gender identity. To date, the CEDAW Committee has largely failed to address sex- and gender-based discrimination against male, nonbinary, and transgender persons13due to CEDAW’s almost exclusive focus on women’s
rights.14 With the exception of CEDAW Article 5(a),15 an anti-gender-stereotyping16 provision whose potential to broaden CEDAW’s mandate is considered in Section III.B, men are not envisioned as potential victims of sex- and gender-based discrimination under CEDAW.17 Meanwhile, it took the CEDAW Committee approximately two decades to begin to address violations of the rights of intersex and transgender women,18 even though they have been advocating before the Committee since the early 1990s,19 and the status of nonbinary individuals and transgender men in relation to CEDAW and the CEDAW Committee remains contested.20 Inclusive victim standing to allege CEDAW violations would resolve these status questions and ensure that all individuals—regardless of sex, gender, or gender identity—have access to a forum where their claims of sex- and gender-based discrimination can be heard.

This Note is in conversation with over a decade of scholarship and activism promoting an expansive reinterpretation of CEDAW that would incorporate broader concepts of gender and victimhood.21 Many scholars and activists have argued, for example, that the CEDAW Committee could simultaneously advance women’s rights and LGBTQ+ rights by expanding its understanding of CEDAW’s mandate to include discrimination on the basis of sexual orientation and gender identity in addition to sex and gender, as well as discrimination on these bases against individuals who do not identify as women.22 Concretely, some scholars have recommended that the CEDAW Committee adopt a more inclusive interpretation of CEDAW in its General Recommendations, which advise States Parties on how the Committee will interpret CEDAW, and in its Concluding Observations, which suggest improvements in the overall human rights practices of specific States Parties.23 A General Recommendation, however, does not appear to be forthcoming,24 and Concluding Observations are inherently limited to providing targeted analyses of an individual State’s compliance with CEDAW.25 Another avenue, yet unexplored, is the individual communications procedure. This Note supplements existing proposals by knocking down a procedural barrier to victims’ and activists’ use of the individual communications procedure: the traditional restriction of victim standing before the CEDAW Committee to women.

Part I of this Note reviews the CEDAW Committee’s admissibility decisions on communications from male victims alleging CEDAW violations leading up to M.W. v. Denmark to highlight the significance of the Committee’s decision to grant victim standing to a male child in that case. Part II then makes the normative case for why M.W. v. Denmark’s interpretation of victim standing should be embraced and expanded. Section II.A argues that inclusive victim standing will further transformative gender equality, Section II.B notes the potential for the CEDAW Committee to play a more central part within the UN human rights regime through inclusive victim standing, and Section II.C addresses potential fears about what inclusive victim standing could mean for women’s rights activists. Part III makes the legal case for inclusive victim standing by justifying the conclusion reached in M.W. v. Denmark and highlighting opportunities for the CEDAW Committee to expand on the case’s reasoning. Section III.A argues that Article 2 of the Optional Protocol to CEDAW (CEDAW’s Optional Protocol),26 the procedural provision allowing victims to submit individual communications to the CEDAW Committee, does not restrict victim standing before the CEDAW Committee on the basis of sex, gender, or gender identity. Section III.B then explains that CEDAW Article 5(a), the anti-gender-stereotyping provision mentioned above, can serve as a substantive foothold for individuals who do not identify as women to gain victim standing to allege violations not only of Article 5(a), but of any right protected by CEDAW. Finally, Part IV illustrates how an inclusive interpretation of victim standing could further transformative gender equality, as well as remedy individual wrongs, in three areas: parental leave, school bathrooms, and gender recognition.