The Right to Equality and Non-Discrimination
Everyone has the right to enjoy their human rights on an equal basis as other individuals, free from discrimination. This requires Government to refrain from carrying out any action that, in any way, directly or indirectly, is discriminating.
Laws must be passed that prohibit discrimination against individuals by third parties. Government must also take measures to promote equality and remove barriers, which prevent certain groups of individuals from exercising their rights on an equal footing as others. The prohibition of discrimination underpins all human rights and constitutes an immediate obligation.
Discrimination means treating people differently – a distinction, exclusion restriction or preference – without justification based on one or multiple characteristics. In human rights law, the protected characteristics are:
Due to the prohibition of discrimination based on ‘other status’ the grounds that are protected in human rights law are not limited but can encompass other categories, such as sexual orientation; disability; gender identity; age; marital status; homelessness etc. The Convention on the Elimination of Racial Discrimination (CERD) defines ‘racial discrimination’ to include discrimination based on race, colour, descent, or national or ethnic origin.
- Direct discrimination
The law, policy, practice, condition or requirement treats persons or groups of individuals unfavourably based on one or multiple characteristics. If the differential treatment is not justified, it amounts to discrimination.
- Indirect discrimination
The law, policy, practice, condition or requirement is neutral on its face and treats everyone equally, but in effect leads to certain groups being negatively affected based on one or multiple characteristics. This shows the importance of assessing the impact of government action on all groups, because ‘equal treatment’ does not necessarily mean ‘identical treatment’ and differences must be taken into consideration.
- Affirmative action / positive discrimination / temporary special measures
Human rights law contains provision for Government to take targeted, time-bound measures to accelerate actual equality between different groups and to diminish the conditions, which cause or help perpetuate discrimination against particular groups. If such differentiation is reasonable and objective and if the aim is to achieve a purpose which is legitimate under the particular treaty, differential treatment is regarded as justified and does not amount to unlawful discrimination.
- International human rights law
In international human rights law the right to equality and non-discrimination is protected in two distinct ways. There are ‘subordinate’ and ‘free-standing’ non-discrimination clauses. ECHR/HRA, Article 14, is a subordinate clause and protects individuals from discrimination in the exercise of the other rights protected in the treaty. For example, Government must respect an individual’s right to private and family life without discrimination. A freestanding clause means that the non-discrimination norms apply to subject matters beyond the remit of the rights in the treaty. For example, under the ICCPR, Article 26, Government has a duty to ensure that individuals are not discriminated against in receiving their pension or unemployment benefit.
Each human rights treaty contains a non-discrimination obligation. There are also specialist treaties that focus on certain groups and detail specific aspects governments should be mindful of in order to ensure individuals’ right to equality and non-discrimination and their enjoyment of human rights more generally.
CEDAW – women and girls
CERD – racial groups
UNCRPD – persons with disabilities
CRC – children.