COVID-19 and the Law: Framing Healthcare Worker Risks as Women’s Rights Violations

This commentary is reposted from HHR Viewpoint https://www.hhrjournal.org/2020/12/covid-19-and-the-law-framing-healthcare-worker-risks-as-womens-rights-violations/ and added here to stand in solidarity with women healthcare workers everywhere.

Today, public health is ‘delivered by women and led by men’, with a glaring absence of women and nurses at the decision making table.[1] Globally, though women only make up 25% of those in healthcare leadership they make up the majority of healthcare workers (70%) and nurses (90%).[2]  This exclusion skews the agendas on health so the gender dimensions of research, diagnosis, treatment, and care are rendered invisible.[3] It also perpetuates a historical legacy whereby women health workers have been underpaid, undervalued, and their needs underprioritized.[4]

In the context of COVID-19, this structural gender inequality creates specific problems. Critically, the safety and security issues, and threats and harms facing health care staff are deeply gendered. International law offers some relief, though the gendered elements are not sufficiently highlighted to truly protect women. International humanitarian law, which pays significant attention to attacks on health care workers, does not apply to public health emergencies like COVID-19. Furthermore, broadly scoped human rights instruments do not account for the gendered dimensions of health care work in emergencies. Under international human rights law, human beings have the right to life (Article 6 of the International Covenant on Civil and Political Rights) and the right to ‘the highest attainable standard of physical and mental health’.[5] 

Globally, health care workers represent a high percentage of those infected with COVID-19. The International Council of Nurses reported that by the end of October 1,500 nurses from 44 countries had died, with total health worker fatalities as high as 20,000.[6] Not only are health workers disproportionately at risk of infection, but they also carry most of the care-burden at home, including caring for older relatives, having a significant impact on their right to family life.[7] Although the legal instruments set out the relevant rights and ways in which they are violated, the universal framing may have a “neutralization effect”: by failing to foreground that women are disproportionately affected because they make-up the majority of health workers,  emphasis on the universality of human rights norms risks concealing the gendered impact.

To address this blind spot, I recommend a strategic pivoting towards women’s rights. Careful attention to a legal framing of problems and an emphasis on articulating harms and obligations through the language of international women’s rights law could help address these concerns.

Pivoting towards women’s rights

The Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW) is a powerful, albeit difficult, instrument to work with. Although riddled with state party reservations, caveats, and dubious interpretation of obligations, it is nevertheless the key international legal instrument protecting women.[8] The Convention and the breadth of the CEDAW committee’s general recommendations can be applied to discrimination, work, and violence to locate gendered risks as human rights violations.

Discrimination. CEDAW Article 1 states that all forms of discrimination are prohibited. Discrimination means any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women of human rights and fundamental freedoms. Attention must be paid to intersectional discrimination, such as where gender, class and ethnicity intersect.[9] It also requires an awareness of how politics and culture matter in emergencies: women healthcare workers’ role as “shock absorbers” is a result of systematic discrimination and a failure to frame these shocks as outcomes of policy and political decisions, that is, they are literally man-made. The duty of sacrifice underpinning the professional nursing culture is consistent with societal expectations about women’s roles as nurturers and caregivers—at any cost.

Work. The structural undervaluation and failure to provide fair payment to nurses is closely tied to the notion of care work as women’s work, and the still-liminal legal status of women’s work as a salaried activity within a safe environment.[10] The right to equal pay and treatment under international law was established 70 years ago.[11] CEDAW Article 11(d)states “the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work”. The structural injustice of nurses’ pay could be investigated as a violation of the state’s obligations under international law and subjected to strategic and coordinated litigation.

Risk. In the context of COVID-19, risk and harm have been linked to inadequate planning and a dearth of resources tailored to the needs of women healthcare workers. With respect to workplace safety, the inadequately fitted PPE for women healthcare workers during the Ebola outbreak in 2014-15 appear to have been repeated.[12] When quarantining women health workers their reproductive health needs must be addressed. As noted, it “is important to include products such as essential hygiene and sanitation items e.g. sanitary pads, soap, hand sanitizers, etc.) for female health workers, women and girls, particularly those quarantined for prevention, screening and treatment”.[13] Failure to observe these needs should not be explained as poor logistics: instead, inadequate preparedness should be identified as a violation of  women’s right to work. According to CEDAW Article 11 (f) on workplace safety, women have “The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.”

Violence. There is a need to assess the legal implications of how gender-based health care worker risks become gender-based violence.[14] Having access to legal language to name harms helps. Disconcertingly, it is regularly observed that sexual harassment is still the norm in health care, whether the perpetrator is the employer or manager, colleagues, patients, or patient family members.[15] In recent years, the problems with workplace harassment and the importance of recognizing and reporting these issues, including grave forms of violence, have been illuminated by worldwide #MeToo and #AidToo campaigns.[16] Despite this progress, “hard law” formal recognition—and an attendant link to political willingness to invest in systematic documentation practices and sanctions—is still just emerging. Some international instruments explicitly recognize that gender-based violence undermines women’s right to just and favorable conditions of work—but this remains soft law.[17] The Violence and Harassment Convention, 2019 (No. 190), in the process of being ratified, addresses this most directly, emphasizing that,

Acknowledging that gender-based violence and harassment disproportionately affects women and girls, and recognizing that an inclusive, integrated and gender-responsive approach, which tackles underlying causes and risk factors, including gender stereotypes, multiple and intersecting forms of discrimination, and unequal gender-based power relations, is essential to ending violence and harassment in the world of work.[18]

Finally, some health workers pay the ultimate prize. Gender-based violence also potentially undermines women’s health care workers right to life: every year women health care workers are killed on the job—targeted in gendered ways and because they are female.[19] This must systematically and carefully be investigated as murder and not dismissed as workplace incidents.

Conclusion

This Viewpoint has argued that pivoting towards women’s human rights – by way of matching the experiences of women healthcare workers to the discourse and analytical prism of law – could make an important contribution to the struggle for more equitable treatment of women healthcare workers globally. This means zeroing in on how the risks and harms experienced by women health care workers are not trivial. Rather, they are lethal, not inevitable but political, and such risks and harms frequently violate international human rights obligations.

Acknowledgments

This commentary is based on my contribution to the panel on the Safety and security of healthcare workers during the COVID19 pandemic and other epidemics panel at the Women in Global Health Norway Annual Conference 2020. I am grateful to the panelists and the hosts for the encouragement to write this.

Kristin Bergtora Sandvik is Research Professor in Humanitarian Studies, PRIO and Professor of Sociology of Law, Department of Criminology and Sociology of Law, University of Oslo, Norway. Email: kbsandvik@jus.uio.no

References

[1] Delivered by Women, Led by Men: A Gender and Equity Analysis of the Global Health and Social Workforce Human Resources for Health Observer – Issue No. 24 Available at   https://www.who.int/hrh/resources/health-observer24/en/

[2] WHO (the Gender, Equity and Leadership in the Global Health and Social Workforce)  Available at https://www.who.int/docs/default-source/health-workforce/ghwn-geh-policy-brief-for-consultation.pdf?sfvrsn=ff48aa7b_4;  WHO, “Delivered by Women, Led by Men: A Gender and Equity Analysis of the Global Health and Social Workforce Human Resources for Health” (2019) Observer – Issue No. 24 Available at   https://www.who.int/hrh/resources/health-observer24/en/

[3] G. R. Gupta, N. Oomman, C. Grown C, et. Al. “Gender Equality, Norms, and Health Steering Committee. Gender equality and gender norms: framing the opportunities for health.” Lancet 2019 Jun 22;393(10190):2550-2562. doi: 10.1016/S0140-6736(19)30651-8.

[4] Mercado et al. (eds.) “Women’s Unpaid and Underpaid Work in the Times of COVID-19 Move towards a new care-compact to rebuild a gender equal Asia”, Monday, June 1, 2020. Available at https://asiapacific.unwomen.org/en/news-and-events/stories/2020/06/womens-unpaid-and-underpaid-work-in-the-times-of-covid-19

[5] Available at   https://www.ohchr.org/documents/publications/factsheet31.pdf and https://www.ohchr.org/EN/Issues/Executions/Pages/InternationalStandards.aspx

[6] ICN confirms 1,500 nurses have died from COVID 19 in 44 countries and estimates that healthcare worker COVID 19 fatalities worldwide could be more than 20,000 October 28, Available at  https://www.icn.ch/news/icn-confirms-1500-nurses-have-died-covid-19-44-countries-and-estimates-healthcare-worker-covid

[7] See for example Guide on Article 8 of the European Convention on Human Rights European court of human rights Right to respect for private and family life, home and correspondence. Available at  https://www.echr.coe.int/documents/guide_art_8_eng.pdf

[8] N. A. Englehart  and M. K. Miller, “The CEDAW effect: international law’s impact on women’s rights.” 13.1 Journal of Human Rights (2014): 22-47.

[9] H.M. Treadwell, “Wages and Women in Health Care: The Race and Gender Gap”  109 American Journal of Public  Health (2019). Available at  https://doi.org/10.2105/AJPH.2018.304866

[10] F. Robinson, “Beyond labour rights: The ethics of care and women’s work in the global economy.” International Feminist Journal of Politics 8.3 (2006): 321-342.

[11]  Available at  https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C100

[12] Z. Kleinman (2020) PPE ‘designed for women’ needed on frontline 29 April 2020; Available at https://www.bbc.com/news/health-52454741

[13] Policy Brief: The Impact of COVID-19 on Women 9 APRIL 2020. Available at  https://www.un.org/sites/un2.un.org/files/policy_brief_on_covid_impact_on_women_9_apr_2020_updated.pdf?emci=042a2364-2a7b-ea11-a94c-00155d03b1e8&emdi=1b37376c-2e7b-ea11-a94c-00155d03b1e8&ceid=2369678

[14] A. S. George, et al. (eds.) “Violence against female health workers is tip of iceberg of gender power imbalances.” bmj 2020; 371:m3546

[15] A. Salles, “Sexual Harassment Is Still the Norm in Health Care” Scientific American, October 24, 2019. Available at  https://blogs.scientificamerican.com/voices/sexual-harassment-is-still-the-norm-in-health-care/

[16] DisasterReady (2019) 27 Sep 2019 Responding to Sexual Violence in the Aid Workplace; Available at https://reliefweb.int/training/3323808/responding-sexual-violence-aid-workplace; K. Midden,  and S Deshmukhs, “#AidToo: How development organizations can respond to sexual violence.” 14 December 2017. Available at  https://www.devex.com/news/aidtoo-how-development-organizations-can-respond-to-sexual-violence-91707. Also, E. M. Gillespie, R. M. Mirabella, and A. M. Eikenberry. “# Metoo/# Aidtoo and Creating an Intersectional Feminist NPO/NGO Sector.” 10:4 Nonprofit Policy Forum. 2019.

[17] Declaration on the Elimination of Violence against Women Proclaimed by General Assembly resolution 48/104 of 20 December 1993. Available at  https://www.ohchr.org/EN/ProfessionalInterest/Pages/ViolenceAgainstWomen.aspx

[18] Available at  https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190.  See also Human Rights Watch, “ILO: New Treaty to Protect Workers from Violence, Harassment” (2019) June 21, 2019. Available at  https://www.hrw.org/news/2019/06/21/ilo-new-treaty-protect-workers-violence-harassment.

[19] See for example https://www.bls.gov/iif/oshwc/cfoi/workplace-violence-healthcare-2018.htm, illustrating the gendered nature of workplace homicides. See also https://wwwn.cdc.gov/WPVHC/Nurses/Course/Slide/Unit1_6, noting  mortality rates and that “studies show that health care workers, particularly nurses, are at a far higher risk of workplace violence compared to most other professions”.

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