Evolutions in Anti-Discrimination and Equality Law
Panel formed with individual proposals.
The theoretical background of the different grounds of discrimination, such as race or gender, is at best vague. To remedy this insufficiency, I want to put forward a theory of anti-discrimination grounds as exclusionary reasons. Exclusionary reasons can be traced back to Raz and are second-order reasons, which are reasons to act or not act for a reason. Applied to the different grounds of discrimination, I will argue, that these grounds are exclusionary reasons, because these grounds are generally viewed as not allowing any discrimination because of possessing a characteristic of these grounds. State authorities, such as the legislature, are, therefore, always prohibited from using differentiations based on these grounds. This makes these grounds to second-order reasons, which preclude for example the legislature when drafting a bill from basing this bill on some discriminatory grounds, such as race or gender. This paper will draft a first outline of this theory.
The right to equal protection is a common feature of written constitutions. Interesting questions arise, however, when one seeks to apply the constitutional guarantee of equal protection to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? This question becomes especially significant when one notes that whether the equal protection guarantee is triggered at all depends on the answer to this question. This paper will study how courts in Hong Kong, Canada, and Singapore have sought to resolve this difficulty. The paper will suggest that three categories of approaches can be discerned in these jurisdictions: formal, substantive, and no comparator approaches, and will argue that a no comparator approach represents the best approach to this difficulty.
In our increasingly literate world, education is recognised as so fundamental to a person's flourishing and to their capacity to access rights, freedoms and opportunities in life, that it is regarded as a fundamental human right of all children. Yet, children with learning disabilities face patterns of educational disadvantage (due to the failure to attend to their needs) within most schooling systems. New research in educational neuroscience and neuroplasticity has shed new light on what is at stake when these failures occur - as this research highlights the degree to which educational inputs and stimuli (provided at school) will shape and change a child's brain structure and function - and thus their developmental trajectory over time. Consequently, much can be gained by analysing questions of educational justice, inclusive education rights, and the legal protection of the right to education, when this is done against the backdrop of a bio-social plasticity model of disability
This paper argues that anti-discrimination laws and affirmative action are the two pillars of inclusive and holistic equality jurisprudence. Anti-discrimination laws are inadequate when implemented alone. Many modern constitutions explicitly provide for anti-discrimination laws and also confer authority on the State to make special provisions for the oppressed classes as enabling provisions. The discretion conferred on the state is actually premised on the trust that it will act in the best interest of the people at a given situation in adherence to the constitutional inclusiveness. The state shall not exercise its discretion arbitrarily while implementing these enabling provisions. When the starting lines for different classes are not the same, anti-discrimination laws merely diagnose and arrest further inequalities without offering scope for reducing inequalities as they exist in past and present forms. Affirmative action thus becomes a compelling tool to ensure holistic equality.
The paper investigates the extent and relevance of the impact of anti-discrimination laws on contractual autonomy, with particular reference to businesses, trying to answer a various set of questions connected to the so-called horizontal application of fundamental rights. Such questions all revolve around the extent to which the law should limit the freedom of contract, of economic initiative and of speech entitled to businesses, in order to pursue anti-discrimination goals. The article addresses the topic from a comparative perspective - most of the cases presented come from real-life news reports, as well from existing litigation, in several jurisdictions. It always considers both the law and the case-law as they are, and as they should arguably be. The conclusion submits that anti-discrimination-driven policies have been interfering too extensively on contractual freedom and freedom of enterprise and speech of businesses, and makes a case for a shift in the current balance.