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C. Building evidence of discrimination
The quesion is how to prove that indigenous women are discriminated against for being a woman and being indigenous and on other possible grounds. How
to build evidence of muliple discriminaion for the courts is a quesion that cannot be fully answered as there are very few examples of case law both
naionally and regionally. The elements menioned here are parial and meant to launch a discussion that needs to coninue.
Discriminaion presupposes unequal treatment via legislaion; or implies unequal treatment of people in similar situaions, with no objecive and
reasonable jusiicaion; or, equal treatment of people in diferent situaions. The right to non-discriminaion is a means to an end for the realizaion of all
human rights. It is an autonomous right, and at the same ime, a right that contributes to the fulilment of all other rights. The right to non-discriminaion
must be applied immediately and not progressively like economic, social and cultural rights. Nevertheless, it is diicult to prove. For all these reasons it is
interesing, if risky, to bring to jusice cases of muliple discriminaion in order to develop speciic and consistent jurisprudence on the situaion of indigenous
women. It is ime to face up to the challenge and develop our ability to prove the complex reality of discriminaion against indigenous women through
judgments and sentences, thereby obliging States to fulil their obligaions towards one of the most violated sectors and people.
Evidence of discriminaion is essenially contextual evidence and presupposes
the existence of unequal treatment in similar situaions or equal treatment in diferent situaions causing exclusion, restricion or impairment in access to
rights. It is essenial to demonstrate the efects sufered by one indigenous woman or a group of indigenous women, in the most concrete way possible,
however it must be shown that these efects are caused by the fact that she is an indigenous woman and that the same things does not happen to others
who are not indigenous women. We have to present and explain how discriminaion is experienced from the
perspecive of an indigenous woman. Then it must be proven where this discriminaion comes from and that other groups in society do not experience
it in the same way. It is important to collect informaion on irregulariies that give meaning to the
paricular efects experienced, including the gender aspects of the case, the unequal power between men and women, because the sex of the afected
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woman is related to the violaion and the existence of stereotypes in the acions of state authoriies.
We can use many tools to describe the panorama of muliple discriminaion, under the framework set out above. Below, we ofer some non-exhausive
elements for consideraion: The burden of proof:
One aspect to consider is who bears the burden of proof in the case of an allegaion of discriminaion. This implies using as a staring point the rules laid
down in the naional legal system and the tendency of the more favourable or less disadvantageous internaional jurisprudence.
In discriminaion cases in Canada it falls on the vicim to provide proof of discriminaion and, when this evidence exists, the burden of proof shits to the
Canadian state. In this case, the State must prove that it has made all possible eforts so that the law or program in quesion does not have a discriminatory
efect Aricle 15, charter of rights and freedoms. To counteract the State’s arguments it is essenial to be well prepared. Oten we have to be able to call into
quesion the intenions of the legislature at the ime of adoping the new laws, as oten it is these iniial intenions which reveal the presence of discriminatory
treatment. Demonstraing the existence of stereotyping or prejudice also helps to highlight the discriminatory treatment or the discriminatory efects of
legislaion on certain categories of persons or groups of persons. Lawyers cannot do this alone and so experts must be sought anthropologists
to show the diference in treatment and the existence of historical disadvantage or vulnerability afecing certain categories of people.
Consituional reforms were passed recently in Mexico enabling the prosecuion of cases of human rights violaions caused by the omission of the State to
guarantee and protect these rights. This has made possible the prosecuion of discriminatory public policies in which the State has failed to ensure the
efecive enjoyment of human rights of those targeted by such policies. In those cases, the plainifs have the burden of proving the damages caused due to the
omission of the authoriies, while the burden of proving that these policies have met their human rights obligaions corresponds to the state authoriies
as defendants. In any case, it is always necessary to develop creaive strategies for gathering
evidence, to achieve the proposed objecives, as long as they are within the
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reach of indigenous women and their communiies, and taking care that there are no further obstacles to accessing jusice.
The oral tesimonies of an afected woman or women, their community and its authoriies, will consitute the main evidence:
These are ideally taken in their own language by people they trust, in a safe and respecful environment. There are things that are not said to foreigners
or those from outside the culture and much less in a language which can not relect these highly inimate realiies. It is essenial to discuss with people the
elements they wish to share, disclose or keep to themselves. The tesimony of the afected woman or women must incorporate their history
of discriminaion as experienced individually and collecively, and not only the violaion of rights for which they are demanding jusice. In relaion to the
situaion of indigenous women, the tesimony of the authoriies and women’s groups is also highly important to demonstrate the collecive nature of the
violaion itself or the collecive consequences of the individual violaion. It is fundamental to demonstrate the moral or cultural damage
that the afected women and their communiies have sufered by including speciic content
related to the culture of the indigenous people involved. Paricipatory research and diagnosics:
As a consequence of the implementaion of the conceptual framework described above, the teams found it essenial to use diferent strategies for
paricipatory research to document cases of muliple discriminaion with the direct paricipaion of women from the communiies themselves. This
enabled evidence gathering that directly or indirectly led to case ideniicaion, documentaion and prosecuion.
A comparaive look at general staisics: Another tool is the use of staisical databases to show the situaion of
discriminaion experienced by indigenous women. Comparing the situaion of non-indigenous women or the situaion in mainstream society could be diicult,
because there are very few staisics disaggregated by sex and ethnicity. In many cases the context must be widened to use the limited data available but
it may be diicult to conserve the perspecive of indigenous women. Another possibility is to produce a speciic database that will serve as a parameter
for the situaion of indigenous women; however, this requires considerable eforts. There have been repeated calls to the states of the coninent to
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produce disaggregated data, including on the part of the UN Permanent Forum on Indigenous Issues since 2001, however the results are sill extremely parial.
Life stories: Producing life stories that illustrate and epitomize the discriminaion that
indigenous women sufer can also support a case, especially when bringing a legal complaint against a State over public policy. This personalises the roadmap
of discriminaion and its diferent nuances. For example, in the case of the right to educaion in Jujuy, discriminaion against indigenous women was analyzed,
highlighing 5 types of school stories illustraing the situaion. These stories are tesimonies that may exemplify some staisics and analysis related to
discriminaion. Life stories have the advantage of including many dimensions from the indigenous women’s own perspecive, such as their worldview, their
sense of belonging in their community and the situaion with regards to their collecive rights.
Workhop on “Strengthening and healing” in the community of 3Pozos in Argenina
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Expert statements :
To complete the tesimonies of those afected, which are direct or personal tools, anthropological or cultural expert statements have also been used,
based on interviews with indigenous elders who know their culture and history of oppression. Usually the interviews are undertaken by anthropologists
or recognized professionals, as required by the established rules of legal proceedings. It is important to measure the efect of each of these experts
on the court. Although someimes it may seem strange to use an external eye to explain our own culture, this can someimes convince scepical judges. In
other cases, the tesimony of a community elder has more impact. Someimes anthropological experts can bridge the gap between the diferent discourses of
indigenous and Western jusice systems. We considered the kinds of evidence established in domesic laws that may
be used to prove in a court the impacts of the design and implementaion of public policies on women and indigenous peoples, such as those analysed in
the project, which are discriminatory because they do not take into account the speciic realiies and ideniies of women and their community. We found
that expert statements are a tool which permits the court a closer idea of these realiies, ideniies and impacts. Nevertheless, we also found that this form of
evidence has been helpful to focus on a paricular discipline, such as medicine and anthropology for example, but that it can ignore other aspects from the
perspecive of the afected women. We also considered whether it would be appropriate to use several
expert statements - from diferent disciplines – for example producing an interdisciplinary expert statement
with the ability to enlighten the court about the diferent factors and impacts of discriminaion. However, this runs the risk
that each of the disciplines would address the situaion in a fragmented way, without managing to demonstrate the perverse efects of the intersecion
of discriminaions that indigenous women face. For that reason, in cases that have been prosecuted in Mexico, they have so far opted for one expert
statement whose pivotal axis is Anthropology, thereby seeking to ensure the inclusion of cultural idenity, but always accompanied by a gender focus and
specialist knowledge of the speciic claims. In this way, expert anthropological evidence was developed in relaion to health with a gender perspecive in a
lawsuit related to health services and another in social anthropology with a gender perspecive in a lawsuit against a care program called the Programa
Oportunidades .
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The aspiraion of the team in Colombia is that expert evidence can eventually come from community elders in order to demonstrate the content and
importance of indigenous tradiional law and the indigenous view of each of the rights violated. This aspiraion is shared by all the teams in the face of
the current reality regarding the procedural rules of liigaion, which depends on the intervenion of people recognized in the western world as ‘experts’, to
present to the court the essence and feeling of indigenous people. Jurisprudence in human rights protecion mechanisms:
Diferent jurisprudenial sources, and reports from the Inter-American Commission or from UN rapporteurs, may be used to support legal arguments
and give them strength. Using posiions of the IACHR on the rights of indigenous peoples in indigenous women’s cases will help to transfer jurisprudenial
progress. Progress in standards on collecive rights must be transferred when studying a case of violaion of the rights of an indigenous woman and
conversely, standards on women’s rights must be transferred, to include a gender perspecive in cases of violaions of the rights of indigenous peoples.
Documentaion of the roadmap of intersecional or muliple discriminaion: It is fundamental to document the complete roadmap of discriminaion. The
quesion is how do we incorporate exising informaion, to draw this roadmap and thereby broaden cases to show double or muliple discriminaions? For
example, for a case related to educaion, it is fundamental to draw the roadmap that a non-indigenous person takes to access university, in order to evaluate
what happens to those who cannot complete their studies, which groups they are from, and at what moment barriers exist and how are they typiied. This
roadmap enables us to highlight muliple discriminaions or obstacles that appear along the way and to ariculate individual and collecive aspects.
COAJ have described the roadmap to discriminaion, for example, by reconstrucing educaional trajectories in the case of Argenina to relect the
school life of an indigenous woman and to show the various obstacles that she has to access educaion. These obstacles are; the cultural inappropriateness
of educaion which is relected or shown by the lack of ariculaion between school levels; the absence of school infrastructure in communiies; the lack
of training for teachers to work with indigenous women; the existence of residenial schools where men are in charge of girls; travelling long distances
to atend school etc. Another factor is the migraion of women from the community to the city to access diferent school levels, in mid-level, higher
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or university educaion; when they get to the city they encounter an urban culture diferent to their own which causes not only discriminaion but also
weakens their idenity; their lack of economic resources and their status as poor indigenous woman means that they only have access to jobs in which
they are exploited, and this becomes a factor causing them to leave educaion. The construcion of educaional trajectories contributes to drawing the road-
map of discriminaion and at the same ime highlights muliple discriminaion or obstacles that appear along the way, throughout the life of indigenous wom-
en, which end up being a key impediment to change in their living condiions both personally and in their communiies. These muliple discriminaions end
up not only condiioning indigenous women, but also blocking and destroying their psychological, spiritual and cultural integrity, erasing and causing injury to
the world view of women and their indigenous peoples.
D. Litigation
Kategori