Obvious though it may seem that equity and equality are not the same thing, they are often used interchangeably (or translated interchangeably) in many legal texts –including legislations aimed at implementing the principles set forth by the Committee on the Elimination of Discrimination against Women (CEDAW). In a paper titled Morgan Symposium on the Gender of Constitutional and Human Rights Law: Equity or Equality for Women? Understanding CEDAW’s Equality Principles, Alda Facio, Director of the Women, Gender and Justice Program at the United Nations Latin American Institute for Crime Prevention (ILANUD), and Martha I. Morgan, Robert S. Vance Professor Emerita of Law, University of Alabama, explore the differences between these two terms and how their misuse has a direct impact on the implementation of women’s rights norms.

The paper begins by exploring the debate that surrounded the use of these terms during the Fourth World Conference on Women that was held in Beijing in 1995, where, according to the authors, there was a “heated discussion” around the use of the words equality and equity in the conference’s draft, Platform for Action. In their research, the authors found that:

“Those who first proposed the use of ‘equity’ rather than ‘equality’ were fundamentalist Islamic forces and the Vatican, including its followers in Latin America. On the other hand, the Human Rights Caucus lobbied strongly for keeping the term ‘equality’ throughout the draft document, arguing that this is the term used not only in the CEDAW but in all other human rights treaties. Fortunately, the position of the Human Rights Caucus was accepted.”

But what is the difference between these two terms? According to the authors:

“[…]while equality is an empirical concept, equity represents an ethical imperative associated with the principles of social justice and human rights. […]  Human rights treaties all enshrine the principle of ‘equality’ as a goal which States are legally obligated to achieve. Equity is not a concept associated with human rights, except maybe in the sense that both have to do with social justice. The principle of equality is directly associated with human rights as is the right to equality. In fact, without equality, human rights have no meaning.”

In this context, the authors conclude that:

“The legal principles of equality and non-discrimination are at the core of human rights treaties and declarations, and provide the foundation for the enjoyment of human rights. The Convention on the Elimination of All Forms of Discrimination against Women elaborates this principle as it applies in all aspects of women’s lives.”

It is clear that the term ‘equity’, which is conditioned by subjective criteria, cannot become a substitute for the fundamental legal principle of equality. Thus any language in the draft document for the five-year review of the Fourth World Conference on Women that would suggest replacement of the principle of equality by ‘equity’ would undermine this principle, and should be avoided.

In other words, the key to the issue revolves around equality as the foundation for applying principles of human rights and international treaties, which as per the Vienna Convention on the Law of Treaties (1969), are hierarchically higher than any local legislation that may apply the equity principle (instead of the equality principle) to issues of women’s rights.

Understanding and acknowledging this linguistic difference provides the necessary legal framework for applying the broad definition of equality found in articles 1 and 2 of the CEDAW, a definition that renders certain existing legislations throughout the world contrary to International Law.