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Article 5 of the Federal Constitution – INCISO I – Gender Equality

06 de June de 2019

Art.5, I, CF – “Men and women are equal in rights and obligations, under the terms of this Constitution.”

The first paragraph of Article 5 of the Federal Constitution deals with what we call “gender equality”. That is, it provides that all persons, regardless of their gender, are equal from the viewpoint of the Constitution. This means that everyone must have the same rights, opportunities, responsibilities and obligations. This paragraph is so important that it is considered a fundamental right, indispensable to citizenship, to society and to the Brazilian State. In legal terms, this concept is inserted in the Principle of Equality, also known as the Principle of Isonomy.

That is to say that gender equality does not ignore the existence of differences between men and women, but rather affirms that gender should not be a criterion of negative discrimination. What gender equality proposes is that gender should not be a criterion of negative discrimination, that is, that gender can not be the cause for recognizing a person less rights or more obligations. This means that gender equality embraces the idea that individuals are different and that these particularities must be taken into account in order to ensure that, regardless of their gender, all people have the same opportunities to develop, with their actions and voices being equally valued.

It is in this same vein that, in order to defend women’s rights in order to build a truly egalitarian society that values ​​the well-being and freedom of all its citizens, the specific needs of different groups of women. Thus, gender equality will only be fully realized if we are able, through legislation and appropriate public policies, to guarantee all women (cis and trans) regardless of their color, origin, sexual orientation or social class the opportunities and rights necessary for them to develop to their full potential.

  • Gender Equality – A Right of All

Gender Equality is still a project under construction. This process already adds several movements, claims and struggles, nationally and internationally. From then on, however difficult the difficulties may be, there are many achievements of women. Increasingly, laws and public policies aim at the social well-being of the citizen and the citizen regardless of gender and women have been gaining ground in the political and economic fields.

Predicted in item I of article 5, Gender Equality is a struggle of all and for all. To have this right guaranteed by the Constitution is of undeniable importance, but history has already shown that this alone does not guarantee its practical efficiency. The defense of women’s rights and gender equality is therefore a collective and continuous effort.

  • What is the relevance of gender equality?

Gender equality is one of the pillars for building a truly equal, just and democratic society. It comes from the recognition that we live in a society that systematically discriminates against women by gender and makes a commitment to change that situation. It is in this sense that achieving gender equality and empowering all girls and women is one of the goals of sustainable development of the United Nations, known as Agenda 2030.

Although it is often seen as a “women’s” issue, gender equality is a human rights agenda and it is necessary for men to get involved too in order to achieve it. Crimes such as harassment, rape, feminicide and other forms of violence against women are social problems that, as such, demand the attention of society as a whole.

  • Gender equality in history

Gender equality is a historical agenda among social and popular demands throughout the world. Since the eighteenth century, women have been mobilized for civil, political and social rights, including demands such as the right to vote, divorce, education, equal pay, adequate working conditions, sexual and reproductive rights and participation in power spaces. In 1848 the First Convention of Women’s Rights took place during the first wave of the feminist movement. Also known as the Seneca Falls Convention (the name of New York City where the event took place), it was the first meeting on women’s rights in the United States and is by many singled out as the official birth of the feminist movement.

Another well-known landmark in the struggle of women for rights is the Sufragist Movement, which in the 19th century led women in Britain and the United States, for example, to take to the streets and fight for the right to political participation, as voters and candidates.

Another event, more recent, was the first meeting of Afro-Latin American and Afro-Caribbean Women in July 1992, which gave visibility and recognition to the struggle of black women in the Americas. The event brought together more than 300 women from 32 different nations, who shared their experiences in the feminist movement and formulated common agendas and, as the event was held on July 25, it was defined as the International Day of Afro- Latin American and Afro-Caribbean.

  • Gender equality in

Brazil In Brazil, although the claims for rights also have their roots in previous movements, we will talk here about the process that led to the struggle for gender equality in the Federal Constitution of 1988.At the end of the Military Dictatorship in Brazil (1964-1985) , few were the legal instruments that sought to guarantee gender equality in the country. However, in the period of redemocratization, a Constituent Assembly took place (1987-1988) with the purpose of drafting a new Constitution to replace that which was in force during the dictatorship. This Assembly resulted in the Citizen Constitution of 1988, which promoted the insertion of minority rights in their fundamental rights.

During this period, several social movements gained strength, among them the feminist. Seeking to fight against gender inequality, women from various social classes started to claim a series of rights that involved issues related to education, health, work, among others. In order to coordinate and strengthen these demands, the National Council of Women’s Rights (CNDM) was created in 1985.

Linked to the Ministry of Justice, the CNDM promoted a national campaign called “Constituent in order to have to have women’s rights!”, From which, recognizing the importance and capacity of the State in the fight for gender equality, the Charter of Brazilian Women was formulated to the Constituents. This document was known as the Lipstick Lobby.

In the letter, women expressed that for them “this country will only be truly democratic and its citizens truly free when, without prejudice to sex, race, color, class, sexual orientation, political or religious creed, physical condition or age , assuring equal treatment and opportunity for access to streets, palanques, workshops, factories, offices, assemblies and palaces “and listed a series of points related to work, family, health, education, culture and violence that should be addressed by the constituents.

These demands were, in the end, a series of demands for women to exercise their citizenship and derive from the understanding that, for these women, “the full exercise of citizenship means the right to representation, to voice and in public life, but at the same time implies dignity in everyday life, which the law can inspire and must ensure, the right to education, health, safety and family life without trauma. ” In this sense, these women brought to the public a “double demand: an egalitarian political system and a non-authoritarian civilian life”.

An important point to understand the approval of several of these claims is the role of women elected to participate in the 1987-1988 Constituent Assembly. In all, 26 women were chosen, representing 5.3% of the constituents. Although these 26 constituencies represented different parties and ideologies, they acted together to ensure that women’s claims were heard and were instrumental in winning the rights requested.

  • Gender equality today

Gender equality seeks to ensure equal opportunities for all citizens, including in the labor market or in politics. Despite the advances, there is still much to be achieved with regard to gender equality. One example is the under-representation of women in political spaces. Although the women are little more than half of the Brazilian population, the representativity in the polls is far from reflecting this. With the results of the 2018 elections, the Chamber of Deputies now consists of 77 women and 436 men, which means that women represent only 15% of the total number of deputies. In the Federal Senate the female participation is similar, being only 13 women out of the 81 senator positions, that is, 16% of the total.

In the economic sphere, the importance of women is great in Brazil. There are 107 million Brazilians who, together, represent 42% of the total income of the workers and move 1.8 trillion reais annually. However, even with such significant figures, gender inequality still harms women. Women are estimated to earn 24% less than men in equivalent positions.

Another point that draws much attention is the rates of violence against women. According to the UN “Women’s Movement” (“HeForShe”) movement, around the world, nearly one-third of all women have suffered some kind of intimate partner violence and women and girls represent 3/4 of the victims of traffic. In Brazil, according to Datafolha’s survey, in 2018, 12.5 million women suffered verbal offenses; 4.6 million were physically touched or beaten for sexual reasons; 1.7 million were threatened with a knife or a firearm; and 1.6 million were beaten or strangled. Altogether, almost 30% of women in our country reported having suffered some type of violence or aggression in the last year. If we consider a race cut, the rate is higher in relation to black women: the homicide rate, for example, is 71% higher among black women than among non-black women.

Other extremely alarming data in this regard is that Brazil is the fifth country in the world with the highest rate of femicide according to the World Health Organization and the country that kills most trans and gender-diverse people in the world, according to data from Transgender Europe. It is undeniable, therefore, that there is still much to be achieved in Brazil and in the world so that men and women in fact have access to the same rights.

  • Ensuring gender equality

Although gender equality goes beyond the legal world, law can play an important role. This is the case of some Brazilian legal instruments aimed at balancing the balance of gender equality. Some examples are:

  1. Law 10,406 / 02 (Civil Code): The man is no longer privileged in the sharing of goods, prevailing equality between men and women with regard to the acquisition of rights and obligations, expressions such as “all man” and “father power” have been replaced by “every person” and “family power” and it has come to be recognized that the headship of the family and the provision must be exercised, in collaboration, by the couple, and not more exclusively by the man.

  2. Law 10.886 / 04: It typified domestic violence, inserting it into the Penal Code.

  3. Maria da Penha Law (Law 11.340 / 06): It introduced mechanisms for combating, preventing and typifying domestic and family violence against women, and is now one of the main mechanisms to combat domestic violence.

  4. Law 12.987 / 14: Instituted the creation of the National Day of Tereza of Benguela and the Black Woman (July 25), as a way of recognizing the resistance and leadership of the black woman.

  5. Law 13.104 / 15: It provides for femicide as qualifying circumstance of the crime of homicide.

  6. Differentiated retirement: The right of women to retire earlier than men is a way of recognizing their dual journey, since in addition to practicing their professions most women also do the main household chores.

  7. Maternity leave of 120 days: The Constitution itself guarantees maternity leave as a way to guarantee the close coexistence between mother and daughter / child in the first months. Related to this, the paternity leave, which was only 5 days, was extended with the Labor Reform of 2017 for up to 20 days for a large number of workers, which contributes (albeit embryonic) to the notion that caring for children is not an exclusively female responsibility.

Source: @politize

Dr. Athos Freitas Fernandes Souza – OAB/MG 176.707
Dr. Giovanni Bittencourt de Souza – OAB/MG 176984