Menstruation, Human Rights and the Patriarchy: How International Human Rights Law Puts Menstruating People at Risk

Menstruation, Human Rights and the Patriarchy: How International Human Rights Law Puts Menstruating People at Risk

Isobel Day

The rights outlined in the Universal Declaration of Human Rights (UDHR), as well as in the International Covenant on Civil and Political Rights, (ICCPR) are rarely disputed in modern democratic societies. Those outlined in the International Covenant on Economic, Social and Cultural Rights (ICESCR)^[1] and the Convention on the Elimination of Discrimination Against Women (CEDAW),^[2] however, have been a topic of debate since their conception in the mid-20th century.  These documents enshrine rights to health, an adequate standard of living, education, work, nondiscrimination on the basis of gender identity, and countless others. Even countries priding themselves on being equal, free, and fair, such as the United States, have not ratified either treaty.^[3] This is due to the public/private distinction that is drawn between rights, dictating which are considered fundamental, along with a myriad of other factors such as the socio-economic status of States. This distinction is also a gendered one, where women and LGBTQ+ people’s rights are considered to be private and less crucial. Thus, their rights are overlooked and unprotected by States which has dire consequences for these individuals worldwide.^[4] Specifically, women and menstruating people^[5] are paid no attention in international human rights law discourse. Rather, their rights to be free from discrimination on the basis of menstruation are violated every day. Because of this, there is a dire need for the rights of women and menstruating people to be enshrined in international human rights law, such as the rights to adequate access to menstrual products, safe and clean hygiene facilities and waste management, menstrual education, and overall nondiscrimination on the basis of one’s status as a menstruator. This can occur through the addition of these rights in General Comments and Recommendations in CEDAW and ICESCR, as well as the overall inclusion of menstruation in discussions on inequity and the need for constant improvement of the protections under international law.

Male-Dominated Language in International Law

The rights enshrined by the ICESCR utilize male-dominant language,^[6] and adopt a perspective of outdated comparisons between women and men along the gender binary.^[7] As noted by the Gender in Geopolitics Institute, the international legal system is and has been almost entirely led by males, and thus the language in its documents “reproduces the patriarchal society found inside states.”^[8] Because of this, issues in international law that have traditionally been associated with men–usually civic and political rights–are seen as general human rights matters, while issues that have been associated with women–social, economic, and cultural rights–are not nearly as prioritized, and often come up short in terms of real protections, namely the right to menstrual health.

Male-dominant language in international law revolves around the dichotomy that “private” rights, having to do with the family and the self (domestic violence, menstruation, family planning, etc.) are separate from “public” rights (work, education, relations between States, etc.). This distinction is gendered, as men have historically dominated “public” sectors such as politics, government, and education, while women have been solely associated with the “private” home and family matters.^[9] Public rights have been a historic priority in international law, as they were among the first to be enshrined.^[10] This separation of rights serves to degrade issues that are associated with women to a lower level of importance than those that are associated with men, as “private” issues are seen as only involving single persons and so do not need to be protected under international law. This impacts discussions around menstrual health as a human right, as it is relegated to the category of “private,” and is therefore minimized in the eyes of the international legal system.

Menstrual Health and Human Rights

Discussions surrounding what is referred to as “menstrual equity,”^[11] defined by the American Civil Liberties Union as adequate access to menstrual products and education on menstruation, are becoming more and more common in discourse on the creation of inclusive and equitable societies. In spite of this, period poverty,^[12] defined in The Lancet Regional Health as a lack of access to menstrual products, education, waste management, and hygiene facilities, affects over five hundred million menstruating people worldwide. Specifically, in the United States, which is noted as having a “very high” Human Development Index by the United Nations Development Programme,^[13] 16.9 million women and menstruating people live in period poverty. Due to inadequate access to menstrual products, menstruating people often resort to using newspapers, rags, or other household objects to absorb blood, which not only harms their dignity but can also increase the risk of urogenital infections.^[15] The implications of period poverty are heightened by crises such as poverty, conflict, imprisonment, and homelessness.^[16]

In a blog created for Menstrual Hygiene Day,^[17] the authors argue that because rights such as health, hygiene and nondiscrimination are outlined in preexisting treaties such as CEDAW and ICESCR, the right to menstrual health and hygiene does not need to be enshrined as a human right. These existing rights, however, have not succeeded in protecting women and menstruating people from period poverty, even in “very highly developed”^[18] States. Because the rights to health, hygiene, and nondiscrimination in existing treaties do not explicitly account for the differing basic human needs of women and menstruating people, such as the need for menstrual products and safe, clean hygiene facilities, they are insufficient in their ability to ensure that these needs are met and protected. By insinuating that menstrual health should not be a recognized right, the authors are minimizing the unique needs of women and menstruating people and the struggles that they endure. Not only that, but the authors are allowing the male-dominant language of current international covenants to stand as adequate for women and menstruating people.

Menstrual health is not expressly incorporated in any right in CEDAW^[19] or ICESCR. Though there are rights that the Menstrual Hygiene Day blog authors argue imply the protection of dignified menstruation (listed here), no right outlines its applicability to menstrual health, leaving space for States and individuals to take advantage of this gap in protection. The right to health, enshrined in ICESCR Article 12^[20], states that everyone has the right to enjoy the highest attainable standard of health. CEDAW Article 12^[21] describes the right of women to not be discriminated against in the healthcare field. ICESCR’s Article 11^[22] outlines the right to an adequate standard of living, while the right to education is protected in ICESCR Article 13^[23]. The right to nondiscriminatory education for women in CEDAW Article 10^[24] complements this right, while Article 6 of ICESCR^[25] grants the human right to work, and Article 7(b) includes access to a safe and healthy working environment. The right to nondiscrimination, which is underlined in CEDAW Article 3,^[26] calls for States to ensure women’s full exercise of human rights and fundamental freedoms.

These rights, as expressed by the authors of the Menstrual Hygiene Day blog,^[27] are only a handful of examples of those aimed at protecting the fulfillment of individuals’ basic human needs. However, these rights are undermined when women and menstruating people experience period poverty.^[28] The barriers to health for those living in period poverty include increased risk of urogenital infections.^[29] The rights to education as well as nondiscriminatory education are violated by the frequent need of young women and other menstruating people to miss school due to inadequate access to menstrual products, as well as the overall lack of education on menstruation,^[30] which is crucial to the elimination of harmful stigma around the issue.^[31] The right to a safe and healthy working environment is made impossible by an inability of those living in period poverty to access safe hygiene facilities and waste management at work while menstruating.^[32] It is clear that one can interpret these rights to include unenumerated rights aimed at achieving menstrual equity. However, the lack of explicit protections for women and menstruating people, such as the right to menstrual products and education on menstruation, has and will continue to allow for the persistent lack of fulfillment of their basic human needs. It eradicates the capability of those experiencing human rights violations to “name and shame”^[33] those committing them. Because of the UN’s lack of enforcement capability, this ability to shame governments into complying with international law is crucial and has been used to bring attention to human rights violations worldwide. This enforcement technique would therefore be extremely useful in bringing attention to period poverty and menstrual equity, but for this to occur, menstrual rights must be enshrined in international law.

Existing Protections

Existing efforts to incorporate menstruation in the language of international law have been limited to flippant mentions of the issue in CEDAW and ICESCR’s General Comments and Recommendations. General Recommendation No. 24 of CEDAW states that State parties should report their policies on healthcare, and how they address “[b]iological factors which differ for women in comparison with men, such as their menstrual cycle and their reproductive function and menopause.”^[34] ICESCR’s General Comment No. 23 also briefly alludes to menstruation- outlining that the right to work should include the right to hygiene facilities that meet “women’s specific hygiene needs.” General Comment No. 22 mentions that the right to sexual and reproductive health implies that States must eliminate “social misconceptions” about menstruation. Though these General Comments imply important protections for women and menstruating people, such as the need to eliminate stigmas around menstruation, they make no attempt to ensure that period poverty and a lack of menstrual equity as a whole is addressed, and instead only discuss pieces of the greater issue at hand. They do not make clear that protection of menstrual health is included in conversations about sexual and reproductive health.

Recommendations

The rights to adequate access to menstrual products, private and sanitary hygiene facilities and waste management at work and elsewhere, and education on menstruation must be protected through their inclusion in General Comments on both the ICESCR and CEDAW. To begin, the Committee on Economic, Social and Cultural Rights must create a new General Comment stating that the right to an adequate standard of living includes the right to access menstrual products, as well as the more general right to protection against period poverty. Additionally, ICESCR General Comment No. 23 must be elaborated on to note that the right to “adequate sanitation facilities that meet women’s specific hygiene needs” at work includes the right to safe and clean menstrual product disposal and changing. CEDAW’s General Recommendation No. 24 must be expanded to ensure States report all policies on eliminating period poverty and discrimination in healthcare on the basis of menstruation. The Committee on the Elimination of Discrimination Against Women must also adopt a General Recommendation stating that the right to nondiscrimination in education includes the right to education on the process of menstruation, as well as how to properly use menstrual products. Also, nondiscrimination in employment must be explicitly stated to include the need for protections for women and menstruating people in terms of paid leave and hygiene facilities. Women and menstruating people deserve to have their human rights protected, and this protection will only be ensured through the re-imagining of the language used in international law.

^[1]International Covenant on Economic, Social and Cultural Rights, OHCHR, (Dec.16, 1966), https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights [perma.cc/Q5QC-WVGY].

^[2]Convention on the Elimination of All Forms of Discrimination against Women, UN Women, (2009), https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm [perma.cc/2V2P-7BWK].

^[3]UN Treaty Body Database, United Nations Human Rights Treaty Bodies, (2019), https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CESCR&Lang=en [perma.cc/ZUY6-W6T6].

^[4]How “Gendered” Is the International Law? Feminist Critiques of the International Legal System, Institut du Genre en Géopolitique, (Dec. 23, 2022), https://igg-geo.org/?p=10372&lang=en [perma.cc/WL3H-GXE4].

^[5]“Women and menstruating people” is used here to include women, trans men, and nonbinary individuals in the category of individuals who menstruate. Note that “women” may be used to describe specific protections for women made in international law, such as CEDAW, but menstruation is noted to be experienced by more than just cis women.

^[6] How “Gendered” Is the International Law? Feminist Critiques of the International Legal System, supra note 4.

^[7] See International Covenant on Economic, Social and Cultural Rights, supra note 1 (article 11).

^[8] How “Gendered” Is the International Law? Feminist Critiques of the International Legal System, supra note 4.

^[9] Id.

^[10] Hilary Charlesworth, Feminist Methods in International Law, 93(2) AM. J. INT’L L. 379, 382 (1999).

^[11] The Unequal Price of Periods Menstrual Equity in the United States, American Civil Liberties Union (last accessed Oct. 20, 2023), https://www.aclu.org/sites/default/files/field_document/111219-sj-periodequity.pdf [perma.cc/DLJ8-26ZM].

^[12] Menstrual Health: A Neglected Public Health Problem, LANCET REG’L HEALTH J. – AMERICAS, (Nov. 2022) https://doi.org/10.1016/j.lana.2022.100399 [perma.cc/Y294-C4F4].

^[13] Human Development Index, United Nations Development Programme, (2023), https://hdr.undp.org/data-center/human-development-index#/indicies/HDI [perma.cc/F397-9Y4R].

^[14]Janet Michel et al., Period Poverty: Why It Should Be Everybody’s Business, 6 J. GLOB. HEALTH REPORTS, 1 (2022).

^[15]Menstrual Health: A Neglected Public Health Problem, supra note 12.

^[16] Menstruation and Human Rights – Frequently Asked Questions, United Nations Population Fund, (May 2022), https://www.unfpa.org/menstruationfaq#menstruation%20and%20human%20rights [perma.cc/D8AW-Q7RK].

^[17] Menstrual Health and Hygiene Is Not a Human Right. It Doesn’t Need to Be. Here’s Why., Menstrual Hygiene Day, (last accessed Oct. 12, 2023), https://menstrualhygieneday.org/mhh-is-not-a-human-right-here-is-why/) [Permalink: perma.cc/B7Y8-T79M].

^[18]Human Development Index, supra note 13.

^[19]CEDAW does not include protections for trans men and nonbinary individuals, which further reduces its applicability to the protection of rights for all menstruating people. Even so, it provides a framework for protections on the basis of identity that is useful to note and explore when discussing the need for expanded protections..

^[20]International Covenant on Economic, Social and Cultural Rights, supra note 1.

^[21]Convention on the Elimination of All Forms of Discrimination against Women, supra note 2.

^[22]International Covenant on Economic, Social and Cultural Rights, supra note 1.

^[23]Id.

^[24]Convention on the Elimination of All Forms of Discrimination against Women, supra note 2.

^[25]International Covenant on Economic, Social and Cultural Rights, supra note 1.

^[26]Convention on the Elimination of All Forms of Discrimination against Women, supra note 2.

^[27]Menstrual Health and Hygiene Is Not a Human Right. It Doesn’t Need to Be. Here’s Why., supra note 17.

^[28]Menstruation and Human Rights – Frequently Asked Questions, supra note 16.

^[29]Menstrual Health: A Neglected Public Health Problem, supra note 12.

^[30]Margaret L. Schmitt et al., “It Always Gets Pushed Aside:” Qualitative Perspectives on Puberty and Menstruation Education in U.S.A. Schools, 4 FRONTIERS REPROD. HEALTH 1 (2022).

^[31]Id.

^[32] Khansadhia Afifah Wardana, Human Rights Framework on Menstrual Health and Hygiene, in INT’L CONF. ON L., ECON., AND HEALTH (ICLEH 2020) 140 (Atlantis Press, 2020).

^[33]Yuan Zhou et al., New Evidence That Naming and Shaming Influences State Human Rights Practices, 22(4) J. HUM. RTS. 451 (2023).

^[34]General Recommendations Made by the Committee on the Elimination of Discrimination against Women, UN Women, (1992), https://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm [perma.cc/EZX9-W6TX].

^[35]General Comment No. 23 (2016) on the Right to Just and Favourable Conditions of Work, OHCHR, (Apr. 27, 2016), https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-23-2016-right-just-and-favourable [perma.cc/L58J-UHDC].

^[36]General Comment No. 22 (2016) on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), OHCHR, (May 1, 2016), https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-22-2016-right-sexual-and [perma.cc/8GG2-L56L].

^[37]General Comment No. 23 (2016) on the Right to Just and Favourable Conditions of Work, supra note 35.