Organising EU non-discrimination law around the nodes of ‘race’ gender and disability?

EU non-discrimination law has seen a proliferation of discrimination grounds from 2000. Dis-crimination on grounds of gender (in the field of equal pay) and on grounds of nationality (generally within the scope of application of EU law) were the only prohibited forms of discrimination in EU law, until the Treaty of Amsterdam empowered the Community to legislate in order to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Article 13 EC). Proliferation of non-discrimination grounds is also characteristic for international and national non-discrimination law. As such, proliferation of grounds results in an increase in potential cases of “multiple discrimination” and the danger of diluting the demands of equality law by ever more multiplication of grounds. The hierarchy of equality, which has been so widely criticised in EU law, is a signifier of the latter danger.
This chapter proposes to structure the confusing field of non-discrimination grounds by organising them around nodes of discrimination fields. It will first reflect different ways of establishing hierarchies between grounds. This will be followed by a recount of different (narrow and wide) reading of grounds. A comprehensive reading of the grounds gender, ‘race’ and disability as establishing overlapping fields of discrimination grounds will be mapped out, with some examples for practical uses.

Sex equality law after Kalanke and Marschall

In Marschall, the ECJ looked for the second time into the admissibility of positive action in German public services; a third reference on this issue is still pending.
Despite the Court’s positive response to the ‘women’s quota’ in Marschall, its application in Germany remains controversial. This article tries to shed some light on the specific conditions under which women’s quotas were implemented in Germany and on the different approaches to anti-discrimination, indirect discrimination law and structural discrimination, which underlie efforts to justify women’s quotas against equality standards derived from EC Law.

Intersectionality and the Notion of Disability in EU discrimination law

Defining the characteristics targeted by banning discrimination constitutes a central challenge for EU discrimination law, and defining disability is particular-ly challenging due to the dispute around the very concept of disability. From 2006, the Court of Justice has wrestled with this definition in six judgments, five of which were delivered from 2013. Instead of classifying the case law definition as conforming to a medical or social model of disability, this article analyses the case law with a view to illustrate challenges of defining discrimination grounds generally, demanding that a sufficiently precise and non-exclusive definition of each discrimination ground can be achieved by re-focusing EU discrimination law around the nodes of sex, race and disability. The analysis exposes that the ECJ definition of disability neither complies with the UN CRPD nor adequately responds to intersectionality theory, for example because the definition is exclu-sionary in relation to female experience of disability.

Revisiting intersectionality for EU Anti-Discrimination Law in an economic crisis –a critical legal studies perspective

This article discusses the role of EU anti-discrimination law in challenging EU anti-crisis measures from a critical legal studies perspective. Critical legal scholarship is defined through its challenge of ‘lex’ through the vision of ‘ius’ and its critical links with social movements. EU anti-discrimination law attracts critique for constituting a compartmentalised socio-legal field, which prevents justice for those at intersections of inequalities. By defining as the aim of anti-discrimination law the combat of disadvantage resulting from ascribed otherness around the nodes sex/gender, race/ethnicity, and disability, the article suggests a convincing normative vision suitable to de-compartmentalise the field and adequately address intersectionality. This critical legal perspective on intersectionality differs from its sociological counterparts by omitting class as a category. The article demonstrates that this distinction is necessary for EU anti-discrimination law to maintain its critical edge.

The brain-sex theory of occupational choice: a counterexample

The brain-sex theory of occupational choice suggests that males and females in male-typical careers show a male pattern of cognitive ability in terms of better spatial than verbal performance on cognitive tests with the reverse pattern for females and males in female-typical careers, These differences are thought to result from patterns of cerebral functional lateralisation. This study Sought Such occupationally related effects using synonym generation (verbal ability) and mental rotation (spatial ability) tasks used previously. It also used entrants to these careers as participants to examine whether patterns of cognitive abilities might predate explicit training and practice. Using a population of entrants to sex-differentiated University Courses, a moderate occupational effect on the synonym generation task was found, along with a weak (p<.10) sex effect on the mental rotation task. Highest performance on the mental rotation task was by female Students in fashion design, a female-dominated occupation which makes substantial visuospatial demands and attracts many students with literacy problems such as dyslexia. This group then appears to be a counterexample to the brain-sex theory. However, methodological issues Surrounding previous Studies are highlighted: the simple synonym task appears to show limited discrimination of the sexes, leading to questions concerning the legitimacy of inferences about lateralisation based on scores from that test. Moreover, the human figure-based mental rotation task appears to tap the wrong aspect of visuospatial skill, likely to be needed for male-typical courses such as engineering, Since the fashion-clesign career is also one that attracts disproportionately many male students whose sexual orientation is homosexual, data were examined for evidence of female-typical patterns of cognitive performance among that subgroup. This was not found. This study therefore provides Do evidence for the claim that female-pattern cerebral functional lateralisation is likely in gay males.

The Erasure of Sex and Gender Minorities in the Healthcare System

Étude de cas / Case study

Conflicts of law and the mutual recognition of same-sex unions in the EU

My thesis uses legal arguments to demonstrate a requirement for recognition of same-sex marriages and registered partnerships between EU Member States. I draw on the US experience, where arguments for recognition of marriages void in some states previously arose in relation to interracial marriages. I show how there the issue of recognition today depends on conflicts of law and its interface with US constitutional freedoms against discrimination. I introduce the themes of the importance of domicile, the role of the public policy exception, vested rights, and relevant US constitutional freedoms. Recognition in the EU also depends on managing the tension between private international law and freedoms guaranteed by higher norms, in this case the EU Treaties and the European Convention on Human Rights. I set out the inconsistencies between various private international law systems and the problems this creates. Other difficulties are caused by the use of nationality as a connecting factor to determine personal capacity, and the overuse of the public policy exception. I argue that EU Law can constrain the use of conflicts law or public policy by any Member State where these are used to deny effect to same-sex unions validly formed elsewhere. I address the fact that family law falls only partly within Union competence, that existing EU Directives have had limited success at achieving full equality and that powers to implement new measures have not been used to their full potential. However, Treaty provisions outlawing discrimination on grounds of nationality can be interpreted so as to require recognition in many cases. Treaty citizenship rights can also be interpreted favourably to mandate recognition, once private international law is itself recognised as an obstacle to free movement. Finally, evolving interpretations of the European Convention on Human Rights may also support claims for cross-border recognition of existing relationships.

Comparison of two computerized procedures for the assessment of color discrimination in Cebus apella

Color vision consists of the discrimination of objects based on their spectral composition. Among primates, the majority of Platyrrhini monkeys are estimated to have polymorphic and sex-linked dichromacy. The objective of this study was to compare the results produced by different equipment and software for the assessment of tri- and dichromatic conditions in one male and two female Cebus apella. Three experiments were programmed. In Experiment 1, verifying the trichromatic condition of one female subject and dichromatic condition of the remainder of the subjects was possible using an adapted version of the Cambridge Colour Test. Experiment 2 confirmed the results of Experiment 1 using a different array of stimuli of the same test. Experiment 3, which produced results similar to Experiment 2, consisted of a test developed for a standard computer system using stimuli with color properties similar to the ones used in the previous experiment. Favorable conditions for the assessment of color vision in Platyrrhini can be built with low-cost equipment and software. Once data have been gathered with additional subjects and new stimulus arrangements have been tested and confirmed, the procedure can be used for the evaluation of other Platyrrhini species for which behavioral color discrimination data are currently lacking.

Disclosure, discrimination and desire: experiences of Black and South Asian gay men in Britain

Using findings from a qualitative investigation based on in-depth email interviews with 47 Black and South Asian gay men in Britain, this paper explores the cross-cutting identities and discourses in relation to being both gay and from an ethnic minority background. Taking an intersectional approach, detailed accounts of identity negotiation, cultural pressures, experiences of discrimination and exclusion and the relationship between minority ethnic gay men and mainstream White gay culture are presented and explored. The major findings common to both groups were: cultural barriers limiting disclosure of sexuality to family and wider social networks; experiences of discrimination by White gay men that included exclusion as well as objectification; a lack of positive gay role models and imagery relating to men from minority ethnic backgrounds. Among South Asian gay men, a major theme was regret at being unable to fulfil family expectations regarding marriage and children, while among Black gay men, there was a strong belief that same-sex behaviour subverted cultural notions related to how masculinity is configured. The paper concludes by highlighting the importance of social location, particularly education and income, when examining the intersection of ethnicity and sexuality in future research.

On sex-related differences in auditory and visual sensory functioning

The present study was designed to elucidate sex-related differences in two basic auditory and one basic visual aspect of sensory functioning, namely sensory discrimination of pitch, loudness, and brightness. Although these three aspects of sensory functioning are of vital importance in everyday life, little is known about whether men and women differ from each other in these sensory functions. Participants were 100 male and 100 female volunteers ranging in age from 18 to 30 years. Since sensory sensitivity may be positively related to individual levels of intelligence and musical experience, measures of psychometric intelligence and musical background were also obtained. Reliably better performance for men compared to women was found for pitch and loudness, but not for brightness discrimination. Furthermore, performance on loudness discrimination was positively related to psychometric intelligence, while pitch discrimination was positively related to both psychometric intelligence and levels of musical training. Additional regression analyses revealed that each of three predictor variables (sex, psychometric intelligence, and musical training) accounted for a statistically significant portion of unique variance in pitch discrimination. With regard to loudness discrimination, regression analysis yielded a statistically significant portion of unique variance for sex as a predictor variable, whereas psychometric intelligence just failed to reach statistical significance. The potential influence of sex hormones on sex-related differences in sensory functions is discussed.

Income disparity among persons with disabilities assessed by education and sex : findings from a field survey conducted in Metro Manila, the Philippines

How do persons with disabilities (PWDs) earn a living? From the view point of poverty reduction, this question is quite critical in developing countries. This paper presents an investigation of economic activities of PWDs in the Philippines where, among developing countries, disability-related legislation is relatively progressive. In 2008, a field survey was conducted in cooperation with Disability People’s Organizations (DPOs) using a tailor-made questionnaire in four representative cities of Metro Manila. The level and determinants of income of PWDs were examined with Mincer regression. Conclusions are as follows: (1) The incidence and depth of poverty are greater among sample PWDs than that of the total population in Metro Manila. (2) There is remarkable income disparity among PWDs which is associated with education and sex. (3) After controlling individual, parental, and environmental characteristics, it was found that female PWDs are likely to earn less than male PWDs due to fewer opportunities to participate in economic activities. It is suggested that female PWDs are doubly handicapped in earning income.

Effects of birth order and sibling sex composition on human capital investment in children in India

The paper explores the effects of birth order and sibling sex composition on human capital investment in children in India using the Indian Human Development Survey (IHDS). Endogeneity of fertility is addressed using instruments and controlling for household fixed effects. Family size effect is also distinguished from the sibling sex composition effect. Previous literature has often failed to take endogeneity into account and shows a negative birth order effect for girls in India. Once endogeneity of fertility is addressed, there is no evidence for a negative birth order effect or sibling sex composition effect for girls. Results show that boys are worse off in households that have a higher proportion of boys specifically when they have older brothers.

Social determinants of self-perceived discrimination in Spain

Objectives: To analyse the association between self-perceived discrimination and social determinants (social class, gender, country of origin) in Spain, and further to describe contextual factors which contribute to self-perceived discrimination. Methods: Cross-sectional design using data from the Spanish National Health Survey (2006). The dependent variable was self-perceived discrimination, and independent and stratifying variables were sociodemographic characteristics (e.g. sex, social class, country of origin, educational level). Logistic regression was used. Results: The prevalence of self-perceived discrimination was 4.2% for men and 6.3% for women. The likelihood of self-perceived discrimination was higher in people who originated from low-income countries: men, odds ratio (OR) 5.59 [95% confidence interval (CI) 4.55–6.87]; women, OR 4.06 (95% CI 3.42–4.83). Women were more likely to report self-perceived discrimination by their partner at home than men [OR 8.35 (95% CI 4.70–14.84)]. The likelihood of self-perceived discrimination when seeking work was higher among people who originated from low-income countries than their Spanish counterparts: men, OR 13.65 (95% CI 9.62–19.35); women, OR 10.64 (95% CI 8.31–13.62). In comparison with Spaniards, male white-collar workers who originated from low-income countries [OR 11.93 (95% CI 8.26–17.23)] and female blue-collar workers who originated from low-income countries (OR 1.6 (95% CI 1.08–2.39)] reported higher levels of self-perceived discrimination. Conclusions: Self-perceived discrimination is distributed unevenly in Spain and interacts with social inequalities. This particularly affects women and immigrants.

Modeling the impact of social discrimination on the physical and mental health of portuguese gay, lesbian and bisexual people

Background: Despite growing acceptance of same-sex sexuality in Portugal, identity development of lesbian, gay and bisexual (LGB) individuals is still restricted by negative societal attitudes, which maintain the experience of stigmatization and discrimination. The purpose of this study is to document the frequency of discriminatory events experienced by sexual minorities and their association with indicators of physical and mental health in Portugal. Methods: A total of 610 LGB participants completed an online survey (mean age = 34.48, SD = 11.54). Most participants were single and self-identified as gay (73.8%). The survey included five categories of survey items: demographic information, social support, physical health, mental health, and discrimination experiences. Results: Physical and mental health results revealed that bisexual people were more likely to report higher levels of psychological distress than gay men. Overall, between one-fifth and one-fourth of the participants in this sample frequently felt the need to hide their sexual orientation to prevent discrimination experiences across the different settings. Regarding actual discrimination experiences, close to 20% reported having suffered from verbal abuse, followed by close to 10% who suffered from written threats, harassment, and physical threats. A hierarchical multiple regression analysis was performed to assess the effects of anticipated and actual discrimination on mental health. Possible confounding variables were added in the first block – age, sexual orientation, being in a relationship, body mass index, and HIV status. Anticipated and actual discrimination experiences were added in the second block. The first block of the analysis explained 6% of the overall variance, while the second block – discrimination experiences – explained an additional 17%. Conclusion: Portuguese culture and stigma/discrimination create discriminatory experiences which impact LGB people’s health. Unless policies are changed to allow for the acceptance of LGB people, they will continue to experience violence and discrimination as a result of homophobia.