Gender Impact Legal Analysis of Laws and Regulations in the Field of Human Capital

Gender Impact Legal Analysis of Laws and Regulations in the Field of Human Capital

Photo: unsplash.com / Wesley Tingey
20 March 2024
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During the reconstruction and recovery period after the war, it is important to consider the principles of gender equality in laws and regulations. The principle of “build back better,” which Ukraine plans to apply during reconstruction, can also be used in shaping economic and social policies, increasing their effectiveness and human-centeredness. This means that in developing laws and reforms, it is necessary to consider equal opportunities for men and women and to include provisions in L&R that promote gender equality.

In 2005, the Verkhovna Rada adopted a law that introduced the necessity of gender impact legal assessment in all areas of legislation to ensure that adopted regulatory acts provided equal opportunities for men and women. However, to this day, such expert assessment is not included in published draft documents, and the regulations often need to pay more attention to ensuring equal opportunities for men and women.

Our audit of reformist resolutions and laws in the social sphere adopted during 2022-23 demonstrates that many of them require the incorporation of unequivocal norms to ensure gender equality. 

The Verkhovna Rada introduced gender impact legal expert assessment of laws and regulations (L&Rs) in 2005 to ensure equal rights and opportunities for women and men. It involves a comprehensive analysis of existing legislation and draft L&Rs to assess their compliance with ensuring equal rights and opportunities for women and men. In 2006, the government adopted a resolution defining gender impact legal expert assessment as part of legal expert assessment to be conducted by the Ministry of Justice.

In December 2019, the government approved an updated procedure for conducting gender impact legal expert assessment. Following this, the Cabinet of Ministers amended its regulations (Appendix 4), stipulating that the explanatory note to a draft L&R developed by the government should contain information on the presence or absence of provisions affecting the promotion of equal rights and opportunities for women and men. However, the Verkhovna Rada regulations and methodological recommendations for drafting laws still do not explicitly require information about the document’s impact on equality. 

Approaches to Gender Impact Assessment

According to the recommendations of the Ministry of Justice, gender impact legal expert assessment evaluates how a regulatory project or regulation itself will affect or is affecting the activities, needs, opportunities, and rights of women and men. Conducting gender impact legal expert assessment in all areas of legislation aims to shape gender-sensitive legislation that eliminates discrimination and promotes equality of rights and opportunities for women and men.

If the expert assessment reveals that the legal act contains provisions that create inequality (limitations in opportunities) or inequity (limitations in rights) based on gender, age, or other characteristics or includes provisions that, although appearing neutral, do not effectively protect against discrimination or contribute to it, such an act requires amendments. 

Ensuring equal rights entails the absence of restrictions or privileges based on gender and equal conditions for the exercise of rights by women and men. Sometimes, to ensure equal rights, it is necessary to introduce “positive actions” because the needs and opportunities of individuals of different genders may differ, and legislation should consider this.

According to the Cabinet of Ministers Resolution No. 997 and the methodological recommendations of the Ministry of Justice, L&Rs in terms of content and consequences in the field of ensuring gender equality are divided into the following categories: 

  • Gender-neutral (in content and consequences): meaning that individual provisions or regulations as a whole do not lead to discrimination based on gender and equally affect both men and women (e.g., terms such as “persons” or “citizens” are used in L&Rs without specifying a particular gender).
  • Discriminatory: these norms result in unequal treatment of individuals based on gender or other factors (such as race, nationality, age, disability, etc.) and aim to weaken or disregard human rights. However, a norm may include distinctions, exceptions, or advantages for individuals of a specific gender within the framework of positive actions (e.g., gender quotas in elections to increase the representation of a gender that is usually underrepresented). Such actions should be temporary and objectively justified to eliminate legal or factual inequality in opportunities for women and men to exercise the rights and freedoms established by the Constitution and laws of Ukraine.
  • Gender-imbalanced provisions in favor of a specific gender are those that can lead to an imbalance between genders, particularly to the unequal representation of women and men in various spheres of society. Gender-imbalanced norms can result in disparities in employment, access to education, participation in decision-making, as well as in the distribution of resources. An example of such a provision is Article 10, “Protection of Women’s Labor,” of the Law of Ukraine, “On Labor Protection,” which stipulates that “The work of pregnant women and women who have underage children is regulated by legislation.” In this case, it does make sense to regulate the work of pregnant women separately; however, it would be appropriate to regulate the work of both men and women with underage children equally to achieve equal participation of men and women in parenting.
  • Those that [effectively – ed.] do not provide equal opportunities for both genders, i.e., while a particular norm, act, or draft act may grant equal rights to individuals regardless of their gender, applying these norms in practice will result in one gender being in a worse position or experiencing limitations in their opportunities. An example provided in the Ministry of Justice’s instructions is Article 3 of the law on electing people’s deputies. It guarantees equality of rights and opportunities for candidates to participate in elections and prohibits privileges or restrictions on candidates based on race, political, religious, or other beliefs, gender, etc. However, in reality, there are significantly fewer women in Parliament than men (among the members of the Verkhovna Rada of the ninth convocation, there are 316 men and 85 women).

It should be noted that the following are not considered discrimination based on gender: special protection for women during pregnancy, childbirth, and breastfeeding; compulsory military service for men; special occupational health requirements for women and men related to the protection of their reproductive health; and positive actions.

Next, we present our gender audit of laws and regulations. When selecting L&Rs for analysis, we rely on data from our “Reform Index” project. Within the framework of the Index, experts and the editorial board of the project select reform and anti-reform legislation pieces from the list of all regulations adopted by the authorities, namely those L&R that will have a significant impact on the economy and the “rules of the game” in Ukraine, and evaluate them. 

In this article, we analyzed regulations that fell under the Index’s “Human Capital” category, which encompasses the most people-centric areas of the Index: the labor market, social protection, education, healthcare, culture, etc. We selected the most relevant regulations adopted after February 24, 2022. Firstly, during this period, Ukraine faced unprecedented challenges in the social sphere due to the displacement of a large number of Ukrainians, increased demand for state social support, and the need for new solutions in the medical and educational sectors. Secondly, our country embarked on a rapid Euro-integration advancement, requiring accelerated harmonization of domestic legislation with European standards. Finally, Ukraine is working on rebuilding following the principle of “build back better.” Part of this work involves developing new and improved policies, particularly in social policy. In total, we examined 78 L&Rs assessed by the Reform Index experts. More details about the methodology are provided below.

Gender Impact Audit Methodology

For the analysis of laws and regulations (L&Rs), we selected the period from February 24, 2022, to December 31, 2023. In total, during this period, over 5,000 L&Rs (decrees, resolutions, orders, presidential decrees, government resolutions, NBU regulations, and ministry orders) were adopted. Approximately 1,000 of these L&Rs were related to human capital (education, healthcare, social support, etc.). We chose this sphere for analysis because it is where policies that directly impact people’s lives and opportunities are formulated. The corresponding laws and regulations establish the conditions for accessing educational and healthcare services, working conditions, equal opportunities, and social protection.

Out of the 5,000 L&Rs, we identified over 300 as reforms and evaluated them in the Reform Index. As part of the gender impact audit, we are examining 78 of these reforms in human capital (see Table). 

We have categorized the 78 L&R considered as follows:

  • Those that do not affect gender equality (typically, these L&Rs are aimed at technical norms and processes, such as amendments to the Regulation on the Unified Information System of the Social Sphere) — marked as “0“;
  • Those that have an impact on gender equality. Such L&Rs are further divided into two groups: 
  1. Those that have an equal impact on everyone – e.g., the right to freedom of religion (in these L&Rs, we expect to see formulations like “everyone has the right to…” with norms that ensure the opportunity to exercise such rights) or have qualitatively defined norms that take into account the differences between genders and ensure equal rights and opportunities for them (e.g., separately defined norms related to the reproductive health of women and men) — marked as “1“;
  2. Those where, despite universal norms, the impact for women and men may differ due to differences in their needs, or those that discriminate against certain groups compared to others (these L&Rs should include norms that ensure access for individuals of all genders and groups to certain government services or benefits) — marked as “2“.

Here, we want to see a more profound analysis focused on whose needs are being met and how. For example, maternity leave due to childbirth is only for women, but parental leave can be for both women and men. Cultural, social, or medical services may seem universal at first glance, but they can also be provided, considering the needs of individuals of different genders. (For example, women consume cultural goods and services more frequently and regularly than men. Therefore, positive actions can be introduced to encourage cultural consumption by men. Also, social services such as psychological support, counseling, and social assistance should consider the diverse needs of individuals. In the healthcare sector, women/men may require specific medical examinations that evaluate their physiological characteristics). 

In our view, we have identified 15 acts that do not affect gender equality — they are marked as “0” in the table. The remaining 63 acts require consideration of the interests and experiences of women and men for the planning, implementation, monitoring, and evaluation of government policies and programs. Our research has focused on assessing whether these L&Rs are gender-sensitive (i.e., contribute to achieving equality of rights and opportunities for women and men).

Audit results

Based on the analysis, in our view, out of the 63 L&Rs:

  • Thirty acts have an equal impact on everyone regardless of gender (“1”). 

Examples of such L&Rs include the law on administrative offenses aimed at enhancing legislation in the field of migration and the law on improving the conditions and procedures for immigration to Ukraine for foreigners and stateless persons. These laws equally apply to all citizens regardless of gender, so there may not be any mention of ensuring equal rights for men and women in such acts. However, some of them include the principle of gender equality among the principles underlying the L&Rs: “the principle of non-discrimination, namely equal access for all subjects to…,” and “the principle of ensuring equal rights and opportunities for women and men.”

  • Twenty-seven acts have a general impact; however, based on the results of additional research (statistical and sociological), it may be found that there are certain “biases” (e.g., in using public services) in favor of either women or men so some of these L&R will require refinement (“1” / “2“). 

For instance, the Cabinet of Ministers Resolution (approving the Procedure for the professional training, retraining, and advanced training of registered unemployed) envisages providing educational services to the unemployed on the principle of “money follows the person.” The Resolution equally applies to both women and men, but the sphere requires further investigation because the demand for mastering certain professions may vary depending on gender. Accordingly, training, retraining, and advanced training will require different approaches. Moreover, during martial law, this service is likely to be used more by women, as some men try to refrain from registering anywhere to avoid mobilization (which, however, is not related to the norms of this law).

Another example could be the law on the public health system. It stipulates that the Ministry of Health approves a list of criteria for assessing the safety of working conditions (sanitary and hygienic conditions) for women, minors, and persons with disabilities (taking into account psychophysiological, age-related, and other features). This means that the law mandates the development of separate criteria for women. At first glance, this law adequately considers universal rights and opportunities and those requiring different approaches for women and men. However, additional research may reveal the need to refine certain norms.

One more example is the law on the conditions for acquiring Ukrainian citizenship. The law provides a simplified procedure for obtaining citizenship for individuals with outstanding merits to Ukraine. In particular, foreigners and stateless persons serving under contract in the Armed Forces of Ukraine, the National Guard, etc., will have the opportunity to take exams in the Ukrainian language, knowledge of history, and the Constitution of Ukraine within two years of obtaining citizenship (all others must submit documents proving they have passed the exams along with their citizenship application). Although the law applies to all foreigners and stateless persons regardless of gender or other characteristics, the current conditions may create a situation where women have fewer rights to simplified citizenship acquisition (since fewer women join the International or Foreign Legions). Therefore, primarily, men may benefit from this law, not due to flaws in this or other laws, but because fewer women choose military service.

  • Six acts have an impact that differs for men and women due to differences in their needs, or they discriminate against certain groups compared to others. These acts require changes (“2“).

An example of this category is the recently adopted law on ensuring the right of service members and other persons to biological parenthood (motherhood). The law provides that military members have the right to receive free medical services related to ensuring their right to biological parenthood (motherhood), including the collection, cryopreservation, and storage of their reproductive cells in case of loss of reproductive function while performing duties in defense of the state and homeland protection. At first glance, this law equally applies to all military personnel; however, the cost of services for men and women for these services differs, and men will likely use this service more often than women. Therefore, the subordinate regulatory acts developed to implement this law’s provisions should consider the specificities of providing this service for both men and women.

The list of 78 legislative acts with links to their texts, distribution by categories, and our proposals for improving the L&R are in the table.

Gender impact Total number of L&Rs Number of L&Rs with sufficient provisions for gender equality Number of L&Rs where provisions are present but require changes Number of L&Rs where provisions are absent but needed Number of L&Rs where provisions are unnecessary
Those that do not impact gender equality have an equal impact on everyone by default or have qualitatively prescribed norms that consider differences between genders while ensuring equal rights and opportunities for them (marked as “0” and “1” in the table*). 45 11 4 12 18
Those that may or indeed differ for women and men due to their different needs or where certain groups may be discriminated against (marked as “1”/”2″ and “2” in the table). 33 81 16  

Therefore, 38 of the analyzed L&Rs require amendments and additions to implement gender equality or consider the differences between women and men. 

Particular attention should be paid to regulatory acts in the field of healthcare. Men’s life expectancy in Ukraine is approximately ten years less than that of women. Therefore, if there is an opportunity to introduce positive actions into legislation to help reduce this gap, it is worth doing so.

Recommendations:

  • Make it mandatory to conduct gender impact assessments and publish their results (including the fact that the regulatory act does not affect gender equality) in explanatory notes to all draft regulatory acts, following the example of the current financial and economic expert assessment or compliance with European standards. This will make it possible, firstly, to focus attention on the potential impact of each regulatory act on gender equality and, secondly, to identify those L&Rs that require additional analysis of their effects on different population groups (this may contribute to the formulation of the need for collecting disaggregated statistical data).
  • L&Rs that directly affect people should rely on disaggregated statistical data where possible. The most important groups for disaggregation may include gender, age, and belonging to vulnerable groups (people with disabilities, orphaned children, single parents, and older adults).
  • If a regulatory act is supposed to cover all categories of individuals instead of listing them (with the risk of “losing” one of the important population groups and the need to restore justice through amendments to the regulatory act or judicial practice), it is recommended to use universal categories – e.g., “every person,” “individuals who,” etc., so that representatives of all gender, age categories, and groups can see themselves in these descriptions, and there are fewer opportunities for different interpretations of the groups of people covered by the legislation in judicial cases.

Conclusions

Our audit is an example of gender impact analysis of L&Rs in human capital. It can be used to analyze regulatory acts or their drafts in other sectors.

During recovery, it is essential to consider the different needs and characteristics of men and women. A gender approach helps ensure fair and equal recovery for all citizens. Particular attention should be paid to healthcare, education, and social protection, for example, through programs that reduce the health gap between genders or ensure equal opportunities for women and men in the labor market. 

We have identified that many laws and regulations (L&Rs) potentially impact men and women differently due to their diverse needs and characteristics. Among them, a substantial proportion of L&Rs (according to our audit, nearly 50%) require changes and amendments to ensure gender equality and equal opportunities for all citizens.

Our research has highlighted the importance of mainstreaming gender impact legal assessment in new and existing regulations at all levels. Such expert assessment will help identify imbalanced L&R and eliminate provisions that do not promote equality of rights and opportunities for target groups through legislative changes. 

By considering the full spectrum of gender aspects’ impact on the resilience and development of the state during the reconstruction and harmonization of Ukrainian legislation with European standards, Ukraine can create a fairer and more equitable society for all its citizens.

*Note: “Gender impact audit,” “gender impact analysis,” and “gender impact legal assessment” are used interchangeably in the article.

The material was produced by the NGO Vox Ukraine with financial support from the Government of Great Britain as part of the project “Women, Peace, and Security: Response to the Challenges of War,” which is implemented by the Ukrainian Women’s Fund in partnership with CSO “La Strada – Ukraine,” the Ukrainian Women Lawyers Association ‘JurFem,’ the Women’s Information and Consultative Center, the Ukrainian Foundation for Public Health, and the Center “Women’s Perspectives.” This initiative is supported by the Office of the Vice Prime Minister for European and Euro-Atlantic Integration and the Secretariat of the Government Commissioner for Gender Policy. The responsibility for the content of the article lies with the NGO Vox Ukraine. 

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