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.

Twisting the knife: discrimination in the law

Of the many different variations that can occur in human sexual formation, transsexualism no doubt remains the least understood by the wider Australian community. As a consequence, the process of attaining human rights to legal status, privacy, dignity and freedom from discrimination for those who experience this unusual condition has been a slow and sometimes frustrating one. The article seeks to introduce the reader to some of the more recent developments in the international jurisprudence of transsexualism and the underlying medical evidence that has supported them. It also offers criticism of the belated attempt by the State of Victoria,  with the Births, Deaths & Marriages Registration (Amendment) Act 2004, to establish certain statutory rights in this regard. While the legislation was enacted with the stated and very laudable purpose of providing for the  correction of birth records on the Register of Births of those people with transsexualism who have altered their phenotypic sex by hormonal  medication and surgery, the article argues it has also served to remove other equally important rights already won and proposes that a final remedy will only be found, as on previous occasions, in the courts.

Discussing sex at work can be a costly business: Translating the science, language and law behind M v A & U (2007) QADT 8...

On 16 March 2007, in the matter of M v A & U [2007] QADT 8, the Anti-Discrimination Tribunal of Queensland found that a complaint of discrimination in the supply of goods and services had been made out by the complainant on two grounds: her female sex and lawful sexual activity. The decision would have been quite unremarkable except that ‘M’, as the complainant was known for the purposes of the hearing, is a woman of difference, one who had unusually arrived at her legal female state by completing the sex reassignment process now more commonly described as ‘sex affirmation’.

This article seeks to elaborate on the language and law of transsexualism used by the Tribunal. Its aim is to enhance practitioners’ understanding of the legal and social issues peculiar to those who affirm a sex opposite that first assigned to them so that those practitioners may better interpret the law to their clients. As the instant decision shows, the failure by an employer to take reasonable steps to avoid infringing the Anti-Discrimination Act 1991 (Qld), either on its own part or by the actions of its employees, can prove a costly business indeed.

The author offers a brief synopsis of the current medical viewpoint regarding transsexualism and reviews recent Australian legal developments in the jurisprudence. She reminds practitioners that the Anti-Discrimination Act 1991 (Qld) has since been further strengthened by the inclusion of ‘gender identity’ as a protected attribute, and concludes by proposing the existence of a heightened duty on the part of practitioners to ensure business clients are aware of the full extent of their legal obligations to not discriminate against employees or clients.

Homophobia and the production of shame: young people and same sex attraction

Research among same-sex attracted young people in Western cultures has described a minority group of adolescents whose sexuality is negated by the significant institutions and people in their lives. Very often, there is a silence in the family and at school about same-sex sexuality and when a young person's homosexuality is suspected or disclosed s/he suffers from denial, discrimination and abuse. Not surprisingly, living in hostile environments leaves such young people at high-risk of drug abuse, depression and suicide. This paper describes some of the ways young people resist being positioned in these negative ways. Using autobiographical stories from 200 same-sex attracted young Australians, we document the discursive field of sexuality in which these young people struggle to construct positive identities. Young people were well aware of dominant discourses which characterized homosexuality as 'evil, diseased and unnatural'. Yet they use different strategies to fault, deflect and discount these negative understandings and to highlight other discourse which positions them positively.

All signals are not equal: acoustic signalling of individuality, sex and breeding status in a cooperative breeder

Repeated interactions between individuals in socially living animals select for the evolution of signals that convey information identifying individuals or categories of individuals, which may enable the discrimination of familiar versus unfamiliar individuals. Such information may help animals maximize their inclusive fitness by adjusting their own behaviour, allowing them to avoid conflict, preferentially direct help and/or ignore unreliable individuals. Acoustic signals in birds provide the potential to encode individual-specific information. We examined the degree to which individual identity, sex, breeding status, group membership and genetic relatedness were related to variability in six different call types, which occurred across a variety of different behavioural contexts in the apostlebird, Struthidea cinerea, a socially living and cooperatively breeding Australian passerine. We demonstrated that not all calls reflected the same extent of information. Of the six call types, call variation was related to individual identity in three call types, breeding status in two call types and sex and group relatedness in one call type. Finally, variation in two call types was not related to any of the measured variables. Our results suggest that some, but not all, acoustic signals in apostlebirds may be selected for individual distinctiveness between individuals and categories of individuals (male versus female, breeder versus nonbreeder), and these signals may be important in determining levels of cooperation and interaction between individuals in this cooperatively breeding society. © 2014 The Association for the Study of Animal Behaviour.

Assessing mediators between discrimination, health behaviours and physical health outcomes: a representative cross-sectional study

PURPOSE: Discrimination is a social determinant of health; however, the pathways linking discrimination to ill-health are under-researched. This study investigated the mediators through which discrimination affects health behaviours and physical health outcomes, as well as assessed whether sex moderated these mechanisms. METHODS: Data from a representative survey (n = 1023) of undergraduate students enrolled in a Brazilian university in 2012 were used. Structural equation models were applied to assess the following mediation mechanisms--(1) discrimination influences self-rated health and body mass index via anxiety/depression; (2) discrimination affects behaviours (alcohol consumption, problem drinking, smoking, fruit/vegetable consumption, and physical activity) through discomfort associated with discriminatory experiences. The potential of sex to act as an effect-modifying variable was also explored in each of the postulated pathways. RESULTS: The effect of discrimination on self-rated poor health was totally (100.0%) mediated by anxiety/depression, while body mass index was not correlated with discrimination. Self-reported discrimination was associated with some behaviours via discomfort. Particularly, discomfort partially mediated the positive association between discrimination, leisure time physical activity (43.3%), and fruit/vegetable consumption (52.2%). Sex modified the association between discrimination, discomfort and physical activity in that such mechanism (more discrimination → more discomfort → more physical activity) was statistically significant in the entire sample and among females, but not among males. CONCLUSIONS: This is one of the first studies to demonstrate that discrimination is associated with physical health outcomes and behaviours via distinct pathways. Future investigations should further explicate the mediational pathways between discrimination and key health outcomes.