Comment of the Center for Family and Human Rights (C-Fam) on the Draft USAID 2020 Gender Equality and Women’s Empowerment Policy

By C-Fam Staff | September 3, 2020

The Center for Family and Human Rights (C-Fam) is 501c3 non-profit educational organization that interacts with diplomats and the general public about issues related to human rights.  For over twenty years, we have worked to defend human life at all stages and the family as the natural and fundamental group unit of society within international institutions.  We are headquartered in New York and Washington, D.C.

C-Fam welcomes the updated gender equality and women’s empowerment policy.  The 2012 policy it supersedes contained several problematic aspects that the new policy has corrected.

We welcome the clear emphasis on gender equality as referring to equality between men and women and boys and girls in society (page 10).

We appreciate the policy’s emphasis on the provision of high-quality health care, including maternal and child health, without promoting abortion, either directly or through euphemistic language such as “reproductive health.”  We appreciate the reference to the fact that gender inequality can cause great harm even before birth, in the case of sex-selective abortion (page 29).  We also welcome the inclusion of fertility-awareness-based family planning methods (page 30).

We welcome the policy’s emphasis on the importance of partnering with faith-based groups, whose omission from the 2012 policy was an unfortunate and potentially costly oversight (pages 5, 7, 11, 13, and 22).

We welcome the policy’s repeated references to unalienable human rights, in keeping with the Department of State’s recent focus on reclaiming the national and international human rights discourse from recent distortions and expansions that go well beyond consensus (pages 5, 10. 16, and 25).

Additionally, we appreciate the emphasis on family planning in the context of married spouses (page 29), which social science demonstrates is the best context in which to raise children. It is especially praiseworthy that USAID has chosen not to reference controversial indicators for family planning, such as so-called “unmet need” or “demand met” for family planning, and other such indicators commonly used by the family planning industry. Such indicators are often misrepresented as a measure of access to contraceptive methods or intent to use them. In fact, they are de facto quotas for the use of contraception and are in tension with U.S. prohibitions on the use of quotas and coercion in the family planning, especially the Tiahrt Amendment (112 Stat. 2681-154).

Overall, this policy is a significant improvement on the 2012 policy it replaces, and while we anticipate that some of the changes will draw significant pushback from other stakeholders, especially organizations who benefited financially from previous approaches to gender policies, we applaud the administration’s commitment to a genuine framing of human rights and a less divisive emphasis on improving the status of women and girls in society.

With regard to remaining gaps and necessary improvements, we would first caution against overloading the policy with excessive specificity, based on the false premise that it excludes people if it does not acknowledge every aspect of identity specifically.  This policy is agency-wide and will have to be applied in a wide variety of country and cultural settings, and therefore should remain concise and broadly applicable. To that end, our suggestions for further additions are brief and limited.

1. Focus on the family as defined in international law as a measure of progress on women’s equality and empowerment.

We would welcome a greater focus on the fact that women, girls, boys, and men do not exist in society only as individuals, but in families, and the importance of U.S. gender policies to take this into account.

USAID gender analysis and integration must become tools to strengthen families, and not to weaken them by atomizing its members and isolating them from their families.  All USAID gender policies must strengthen the family and fully respect the irreplaceable role that women and girls play in supporting their families through both financial resources and domestic support. For this to happen USAID must also have a working definition of the family, based on binding international human rights treaties ratified by the United States—one that is broadly shared in laws and policies around the world. 

USAID programming should not promote and support new and divisive definitions of the family, that are not shared by other countries and cultures, and that are not rooted in binding international human rights treaties ratified by the United States, even if such new definitions of family have been accepted in U.S. domestic law or imposed by the U.S. Supreme Court. At the very least, USAID policies must ensure that USAID cannot discriminate against organizations wishing to partner with USAID based on their respect for the internationally binding definition of the family in international legal instruments.

The family is defined in the Universal Declaration of Human Rights as “the natural and fundamental group unit of society” and declared “entitled to protection by society and the State” (Article 16). Family formation is also predicated in the declaration in the context of marriage between a man and a woman who exercise their right to freely marry and found a family. The same language of the Universal Declaration of Human Rights defining the family is repeated verbatim in the International Covenant on Civil and Political Rights, which is ratified by the United States and binding for the U.S. government. This binding legal foundation on the family should be the basis of any work of USAID to strengthen and protect the family internationally, including through policies to empower women socially, legally, and economically.

Unless USAID gender policies include a proviso about an international understanding of the family for purposes of USAID policy, the broad discretion that USAID gender advisors and officials possess under the Women’s Entrepreneurship and Economic Empowerment Act or WEEE Act (P.L. 115-428) be used to impose conditions on foreign organizations that would make them incapable of partnering with USAID based on their objection to new definitions of family that are not shared in all countries and cultures.

All people, including women and girls, thrive when they are part of thriving families, and USAID’s work to help countries on the Journey to Self-Reliance will be greatly helped if it assists families to be strong and resilient, so they can be force multipliers generating healthy, productive people who contribute in all areas of society. USAID should be finding ways to partner with organizations to ensure this happens. USAID should not erect barriers that make it harder for organizations that focus on the family to work with the American People. 

2. Explicitly rule out abortion from all USAID gender policies and programming, consistent with existing U.S. law.

We would also welcome the inclusion of a proviso in the USAID gender policy that would make it impossible for USAID gender analysis and integration at any stage and at all levels to include changes in abortion laws as a measure of progress on women’s equality and empowerment. 

Already, some USAID gender analyses have counted restrictive abortion laws as discriminatory measures against women. [See for example the USAID 2018 MENA report on Countering Gender Based Violence, p. 21; USAID/Haiti Gender Assessment 2016, p. 51 and 53, USAID/Morocco Gender Analysis Final Report, p. 24.

This cannot be allowed to happen again, especially given the wide discretion that USAID gender advisors and officials have to impose conditions on U.S. partner organizations. USAID policies and programs must not fall prey to divisive cultural and political battles that would only make them less effective. That is why USAID gender policies and programing must be crafted in a way that is consistent with existing U.S. law as it pertains to international assistance. Consistency with U.S. law alone can guarantee that USAID policies and programs do not become a battlefield for the culture wars.

In this regard, U.S. law prohibits the use of U.S. funds to perform abortions or coerce doctors to perform abortion through the Helms Amendment (22 U.S.C. 2151b(f)(1)). The Helms Amendments has been applied consistently for nearly 50 years under both Republican and Democratic administrations as a blanket prohibition on funding for abortion under any circumstance. U.S. law also prohibits the use of U.S. funding to lobby for or against abortion through the Siljander Amendment (95 Stat. 1657). The USAID gender policy must explicitly declare that all USAID gender policies and programs, and that USAID gender analysis and integration at all stages and at all levels, must respect these U.S. laws and strive to be consistent with these legal requirements. The gender policy, should in this regard, declare that abortion can never be a programmatic requirement or condition of U.S. gender policies and programming, based on U.S. congressional requirements. 

Failure to include an express proviso ruling out abortion as a programmatic requirement of U.S. policy, would leave the door open for USAID gender advisors and officials to impose abortion as a condition of partnering with USAID. They could do this by re-interpreting U.S. law to only exclude abortion in some circumstances or by exploiting loopholes in U.S. law. This would make it impossible for many faith-based groups, including Christians, Jews, Muslims, and Hindus to partner with USAID, notwithstanding the new emphasis on faith-based groups in the gender policy.

3. Rule out discrimination against faith-based groups.

Based on the observations above, on the need to limit the discretion of USAID gender advisors and officials in order to make USAID policies and programming more effective when contentious social issues are involved, it is also necessary to ensure that USAID gender advisors and officials can never discriminate against faith-based groups at any stage of the planning, implementation, and evaluation of USAID gender policies and programming. Only such a proviso in USAID gender policies can ensure that the promise of the New Partners Initiative is actually fulfilled and has a lasting impact on U.S. foreign assistance.

Such a proviso is consistent with previous broadly supported congressional legislation that prohibits discrimination against any group, including faith-based groups, based on their conscientious objection to certain elements of USAID policies and programming, and requiring USAID to not impose conditions that would make it impossible for groups to partner with USAID based on their conscientious objection to such conditions (See the Non-Discrimination for Conscience provision in the Leadership Act Against HIV/AIDS, Tuberculosis, and Malaria Act, 48 CFR § 352.270-9).

In conclusion, we thank the leadership of USAID for promoting gender equality and women’s empowerment, and for doing it in a politically and culturally sensitive way. We urge USAID to ensure the broad powers and discretion that USAID gender advisors and officials possess under the WEEE Act and other U.S. laws are used in a way that helps USAID partner with faith-based groups, without erecting barriers through divisive social and political issues. Faith-based groups, groups that promote and support role of the family in society, and groups that uphold the dignity of all human life at all stages are precisely the groups USAID should want to partner with. It would impoverish USAID policies and programming and make them less effective if they were excluded from USAID programming because of divisive social issues.

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