anti discrimination advocacy essay

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Double pandemic: racial discrimination amid coronavirus disease 2019

The emergence of the COVID-19 pandemic has seen an escalation of racial discrimination against non-citizens and people of colour in many places around the world. While this COVID-19-related racial discrimination against non-citizens and people of colour has drawn much attention in the media space, the issue has been less discussed in academia. Given that racial discrimination has a significant impact on human relations, mental health, and general well-being, it is important to address the rising racial discrimination problem amid the COVID-19 pandemic. This paper discusses some of the reported stories of racial discrimination associated with COVID-19 and presents viewpoints on why people are being abused and the socio-economic implications associated with the abuse. The paper concludes with few suggestions on how to address the COVID-19 related racial discriminations as the world continues to fight against the double pandemic.

1. Introduction

For more than a century, racial discrimination against non-citizens and people of colour has persisted as an intractable social problem in several parts of the world ( United Nations, 2015 ). While the origin of racial discrimination seems to be contestable in the critical race literature ( Lampert, 2004 ), it is widely recognised that race-related discrimination can be traced as far back as the ancient period of colonialism and slavery ( Blackburn, 1997 ). Between the 16th and 18th centuries, for instance, racial discrimination was known to be prevalent in Europe’s American colonies (e.g. Virginia) ( Lampert, 2004 ; Blackburn, 1997 ; Takezawa et al., 2020 ; Vaughan, 1989 ). Amerindians were stereotypically regarded as inferior to Europeans and Africans were viewed as useful for slave labour ( Takezawa et al., 2020 ; Vaughan, 1989 ).

Racial discrimination can be defined as “any distinction, exclusion, restriction, or preference based on race, colour, descent, or national or ethnic origin that has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life” ( International Convention, 1969 ).

The global impact of racial discrimination has driven the United Nations (UN) to raise several advocacies against the problem since 1945. The International Convention on the Elimination of All Forms of Racial Discrimination and the International Bill of Human Rights which comprises the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights, and the Universal Declaration of Human Rights have been introduced by the UN to commit its members to eliminate all forms of racial discrimination ( Joseph & Castan, 2013 ; Nations, 1996 ; Nations et al., 2020 ). Following that, the 2001 ground-breaking World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance was held in Durban, South Africa to promote a global discussion on how to eliminate all forms of racial discrimination ( Nations et al., 2002 ). The UN has also pegged March 21st of every year as the international day for the elimination of racial discrimination to promote greater global awareness of the racial discrimination problem ( United Nations, 2015 ; Global Alliance of National Human Rights Institutions and Global Alliance of National Human Rights Institutions, 2017 ). Additionally, an agenda spanning from 2015 to 2024 has been framed by the UN to address racial discrimination against persons of African descent who are considered as one of the greatly affected racial victims in the world ( United Nations, 2015 ). Several human rights institutions operating with the Global Alliance of National Human Rights Institutions have been formed in many countries to protect human rights, including the promotion of inter-racial acceptance ( Global Alliance of National Human Rights Institutions and Global Alliance of National Human Rights Institutions, 2017 ). The forming of such institutions has also influenced the passing of several laws that criminalise racial discrimination in some countries ( Global Alliance of National Human Rights Institutions and Global Alliance of National Human Rights Institutions, 2017 ). For instance, racial offenders in the United Kingdom (UK) under the Public Order Act 1986 face up to seven years imprisonment for “using, displaying, publishing, showing or distributing any words, images or behaviour which are threatening, abusive or insulting” and which are intended or likely to spark race-related hatred ( Australian Human Rights Commission, 2008 ). In Canada, offenders of racial discrimination also face two years imprisonment (or five years for advocating a genocide) ( Australian Human Rights Commission, 2008 ). Through advocacies, civil societies and movements, such as the global Black Lives Matter movement have also protested against racial injustice in several communities globally ( Della Porta, 2020 ).

As the UN, human rights institutions, governments, and civil society groups and movements continue to promote greater acceptance of people from different racial categories and encourage greater respect for human rights across the globe, the numerous reports of racial discrimination against non-citizens and people of colour in the fight against the coronavirus disease 2019 (COVID-19) demonstrate that more work is needed to achieve the UN’s goal of eliminating all forms of racial discrimination. In almost every continent, there have been widespread reports of racial discrimination against non-citizens and people of colour in relation to the COVID-19 pandemic ( Clark et al., 2020 ; Devakumar et al., 2020 ). Several cases of racial discrimination against non-citizens and people of colour have received much attention on numerous media platforms. For instance, in the UK and the US, media reports have shown that COVID-19 morbidities and mortalities were disproportionately high among people of colour by the end of May 2020 ( Tsirtsakis, 2020 ). However, the issue has been less discussed within academia and race-aggregated data is virtually non-existent in many countries. This appears to be a major limitation to recognising the negative implications of racist behaviours and harsh government policies against non-citizens, people of colour, and visible minorities. Using news reports from credible media outlets as evidence, this paper discusses some of the unfolding racial discrimination stories associated with the COVID-19 pandemic and examines the implications of this disease-related racial discrimination for the future.

2. COVID-19 and associated racial discrimination

The COVID-19 pandemic has been associated with a series of racial discrimination, especially, against people of East Asian and Southeast Asian appearance ( Wikipedia, 2020 ). The surfacing of racial discrimination amid the COVID-19 pandemic warrants serious attention bearing in mind that the reported cases in the various media outlets and this paper are likely just a fraction of actual encounters. It is also important to keep in mind that racial discrimination can be subtle and/or systemic resulting in underreporting of cases ( Pager & Shepherd, 2008 ).

Reports of racial discrimination against people of Asian (especially Chinese) appearance have, however, been noted in several news channels as it was being conveyed that COVID-19 originated from Wuhan in China ( Wikipedia, 2020 ). In Australia, for instance, a dispute was caught on camera showing a woman verbally abusing Asian Telstra workers at Miranda in Sydney ( Mourad, 2020 ). The furious woman threatened one of the men of Chinese appearance that his entire family “would be deported” and shouted at the man to “go back to China”. There have been similar reports of anti-Asian racism in several other places, including India, the United Kingdom, the United States, Israel, Jordan, the Philippines, and some African countries ( Wikipedia, 2020 ). In the United States, for example, the ‘Stop AAPI Hate’ forum has recorded more than 1100 instances of anti-Asian abuse since late March 2020 ( Mourad, 2020 ). In the north-eastern states of India, people of Chinese appearance have been facing racially motivated discrimination and have been blamed for bringing COVID-19 to India ( Krishnan, 2020 ). In an interview organised by Deutsche Welle (DW) news, one victim and his daughter were allegedly denied entry into their apartment on March 16 as the administrator of the building claimed they may be incubating COVID-19 ( Krishnan, 2020 ). On March 10, 2020, an Egyptian driver was also arrested in Egypt after a video showed the driver compelling a Chinese passenger to get out of his car at a highway in Cairo on an unfounded reason that the passenger had COVID-19 ( Al Sherbini, 2020 ; Khaled & Fayyad, 2020 ).

As COVID-19 has triggered anti-Asian racism in various places around the world, interestingly, it was being reported that the reverse is happening in China as the country experienced new waves of COVID-19 cases ( Wikipedia, 2020 ). The Chinese government after declaring control of the pandemic has increasingly emphasised the threat of imported cases. China’s National Health Commission reported that there had been few domestically transmitted cases of COVID-19 and that the new cases were largely from overseas ( Huaxia, 2020 ). Following these announcements in China, there have been several reports of racial discrimination against non-citizens and people of colour ( Wikipedia, 2020 ). As businesses reopened in the country, racial discrimination against non-citizens and people of colour took an economic dimension as some Chinese shops and restaurants allegedly banned non-Chinese people from using their services. An Australian woman was reportedly attacked in China after attempting to breach this anti-foreigner abuse ( Walden & Yang, 2020 ). In Guangzhou, China, there have been reports of abuse against people of African appearance ( Wikipedia, 2020 ). Chinese residents of African appearance were being evicted from their homes by landlords and prevented from entering public accommodations based on an accusation that they were incubating COVID-19, despite many claiming that they have had no recent travel overseas or come into contact with any COVID-19 patient ( Marsh, Deng, & Gan, 2020 ). In an interview between Cable News Network (CNN) and a number of the African immigrants in China, many shared their experiences on how they have been evacuated from their homes, been subjected to selective testing for COVID-19, and been selectively quarantined for 14 days, despite having no symptoms or contact with known COVID-19 patients ( Marsh et al., 2020 ).

Another incident believed by many as racially motivated appeared on several international social media platforms when videos of two French doctors openly agreed on live television that the first vaccine trials for COVID-19 should be tested in Africa. In the video, one of the doctors said: “If I can be provocative, shouldn’t we be doing this study (testing of vaccine) in Africa, where there are no masks, no treatments, no resuscitation?” “A bit like as it is done elsewhere for some studies on AIDS. In prostitutes, we try things because we know that they are highly exposed and that they do not protect themselves.” This idea came after the other doctor had earlier questioned whether the study would work as planned on healthcare workers in Europe and Australia because they had access to personal protective equipment to prevent them from contracting the virus ( Rosman, 2020 ). The remarks from the two doctors received backlashes from some social media users in the following days who condemned the comments as racist. The remarks from the two doctors also drew criticism from a high-ranking figure in the World Health Organization (WHO) who described the comments as a “hangover from a colonial mentality” ( Folley, 2020 ).

3. Why are people being racially abused amid COVID-19?

While emphasizing that racial discrimination should not be encouraged for any reason, it is important to recognise why it occurs to elicit a better understanding of how to address the problem. Factors associated with the racial discrimination against non-citizens and people of colour during this pandemic may be complex and may include post-colonial perception of racial superiority, fear of COVID-19 infection, ‘inflammatory’ comments by significant public figures, vengeance for fellow citizens who have experienced abuse elsewhere, and perception of differences in COVID-19 susceptibility due to differences in phenotypic physical features.

History has shown that the human population has long been divisive with perceptions that people of different appearances have different abilities and natural dispositions ( Cantle and Cantle, 2005 ). This form of reasoning in the pre-civil rights era has motivated unequal treatments of people across different racial categories with evidence showing that rights and privileges have, for a long period, been distributed unequally as in the ‘Nazi crisis’ as well as the apartheid systems that existed in South Africa, Australia, Israel, and the United States ( Bakan & Abu-Laban, 2010 ; Lodge, 2012 ; Massey, 1990 ; Sonn, 2012 , pp. 240–251). Colonisation and slavery in the early 1800s, particularly, in Africa, Asia, Australia, and the Southern Pacific are other classic examples of activities in the past associated with racial discrimination ( Rogers & Bowman, ). Notably, there was a massacre of Tasmanians (in Australia) and the Maori population (in New Zealand) in the late 18th and early 19th centuries ( Rogers & Bowman, ). By 1850, Robert Knox (a famous English anatomist) falsely declared that race and intelligence are linked and concluded that people of colour were intellectually inferior ( Rogers & Bowman, ). The studies of Knox and others influenced the Eugenics movement in the 20th Century but it was later revealed that his conclusion was based on the autopsy of only one man of colour ( Rogers & Bowman, ). Between the 19th and 20th centuries, more than 600 distinctive legislations against the rights and privileges of Asians were passed in Europe which prevented Asians from obtaining citizenship and somewhat allowed for the murder of Asians with impunity ( Rogers & Bowman, ). These ancient colonial ideas of racial superiority for particular groups of people may have been imparted to the descendants of past pepetrators of racism and these ideas may still be internalised by many people today.

In correspondence with the report of Devakumar, Shannon ( Devakumar et al., 2020 ), fear of COVID-19 may also be contributing to the racial discrimination problem. Instances of regional discrimination against Wuhan natives in other provinces of China, such as people being refused entry into hotels, have been noted in some media reports ( Wikipedia, 2020 ). Given this example, it is tempting to simplistically assume that perpetrators of racial discrimination against non-citizens and people of colour do so to prudently protect themselves from COVID-19 infection. It is however important to note that the vast majority of victims of racial discrimination in China were reportedly non-citizens and people of colour rather than citizenry ( Wikipedia, 2020 ).

As COVID-19 spreads across borders, some social media users, media personalities, celebrities, and political leaders have passed comments that may have encouraged racial discrimination against non-citizens and people of colour. For example, a former deputy prime minister of Italy attributed the early spread of COVID-19 in Italy to asylum seekers of African descent ( Devakumar et al., 2020 ; Tondo, 2020 ). In another instance, a president of a nation referred to the COVID-19 pandemic as the ‘Chinese virus’, linking the health threat to foreign policy and trade negotiations ( Scott, 2020 ). At one point in time, two UN human rights experts had to appeal to the Bulgarian government to stop hate speech and racial discrimination against the Roma minority in its response to COVID-19 ( United Nations Human Rights Office of the High Commissioner, 2020 ). Such inflammatory comments by some leaders and famous personalities defy the WHO’s advice that the names of new diseases should not be tagged with people or places where it was first detected as that can propagate hatred ( Wikipedia, 2020 ).

Some cases of racial discrimination may have been motivated by a desire for vengeance for fellow citizens or people of the same racial category who have reported racial abuse elsewhere. For instance, there have been reports of growing tensions between Chinese people in Nairobi and Kenyan citizens due to the abuse of Kenyans and some other African nationals in China ( Solomon, 2020 ).

Another factor that may be associated with the racial discrimination against non-citizens and people of colour during this pandemic is the differences in phenotypic physical features across racial categories ( Cantle and Cantle, 2005 ). As humans have distinct phenotypic physical features of the face and body, such as skin colour, hair colour, and eye colour, these differences in physical appearance may have triggered some thoughts of differences in COVID-19 susceptibility, transmissions, and incubation periods across different racial categories ( Cantle and Cantle, 2005 ).

4. Socio-economic implications of COVID-19-related racial discrimination

The COVID-19 pandemic and its ramifications of racial discrimination continue to have a serious socio-economic impact on victims and societies. Globally, millions of people have been infected with the virus, hundreds of thousands have died, countries have closed their borders, cities have been put on lockdown, businesses have stalled, jobs have been lost, schools have been closed, and social life has been disrupted ( Devakumar et al., 2020 ). The racial discrimination associated with the COVID-19 pandemic has intensified existing health vulnerabilities of non-citizens and people of colour ( Devakumar et al., 2020 ; McAuliffe & Bauloz, 2020 ). Highly infectious diseases, such as COVID-19 often increase pressure on limited health care resources ( Devakumar et al., 2020 ). In the presence of a biased society that often favours citizens of a country, non-citizens and people of colour face a higher risk of infection and mortality from COVID-19. A typical example is the case in America where communities inhabited mostly by people of colour emerged as the ‘hotspots’ and zones for COVID-19 transmission and deaths ( Noppert, 2020 ). The risk of infection and death from COVID-19 may even be higher for undocumented immigrants who are likely to avoid medical attention as they face an additional risk of detention and deportation ( McAuliffe & Bauloz, 2020 ).

Moreover, an experience of racial discrimination in this pandemic period can exacerbate mental health distress associated with the fear of contracting COVID-19 ( Burt, Simons, & Gibbons, 2012 ). Victims of racial discrimination in this pandemic era are likely to express feelings of sadness, anger, depression, and constant fear ( Burt et al., 2012 ; White et al., 2007 ). These negative energies which are often associated with an experience of racial discrimination can lead to lifelong hatred and intolerance towards people of different racial categories ( White et al., 2007 ).

Racial discrimination against non-citizens and people of colour in this COVID-19 period has the potential to also disrupt global trade and economic ties. Before the emergence of the COVID-19 pandemic, several countries had arranged trade agreements ( United Nations, 2019 ). As citizens of such countries are being maltreated, future trade arrangements can be affected. For instance, in 2009, China became the largest trading partner of Africa and bilateral trade agreements have been signed between China and 40 African countries ( United Nations, 2019 ). As people of African descent are being abused in China, some African countries may rethink their trade negotiations with China, and this can result in a post-pandemic breakdown of trade ties and relations.

Non-citizens and people of colour often provide essential hard labour and income to host countries. Studies have shown that this category of people often earn a low income, face labour exploitations, and do not have access to citizenry benefits, such as paid leave, and access to income support ( Anderson, 2010 ; Minkler et al., 2014 ; Orloff, 1993 ). In this pandemic era, several policies have been imposed by many governments that have put non-citizens and some people of colour in devastating conditions. In Australia, for instance, an extensive survey conducted in March and April 2020 has shown that 65% of overseas visa holders lost their jobs during this pandemic, 43% were skipping meals regularly, 34% have become homeless, and 39% did not have enough money for daily upkeep, and yet, were somewhat excluded from the government’s policies on stimulus packages and were advised to go back to their countries of origin in the middle of this pandemic ( Berg & Farbenblum, 2020 ). These problems were accompanied by escalated racial discrimination against them, and the risk of unemployment and economic hardships may only increase among this vulnerable group of people. To some extent, governments that have neglected non-citizens in their support policies may also lose some financial benefits accrued from the payment of taxes by those who have lost their jobs due to the lack of policy support ( Clark et al., 2020 ).

5. Conclusions

Racial discrimination has no place in society, and certainly, not in this time of COVID-19 pandemic. As the epicentre of the disease outbreak continues to shift from place to place, urgent measures need to be developed to reduce the increasing cases of racial discrimination. The UN, human rights institutions, governments, and citizens of countries have a responsibility to increase advocacies and fight against racial discrimination. It needs to be understood that this pandemic is a global problem and that discriminating against non-citizens and people of colour will only worsen existing vulnerabilities for people and will increase prejudiced hostility and hatred among the human race.

As some citizens are likely to continue propagating anti-migrant sentiments during this disease outbreak, people (particularly, other citizens) need to stand against such sentiments, especially, when they occur in their presence. A good example has been noted in Egypt where an Egyptian was admonished for abusing a man of Chinese appearance. Some Egyptians visited the Chinese man in his hotel and expressed an apology to him for the incident, and condemned the act as bullying and racist ( Al Sherbini, 2020 ; Khaled & Fayyad, 2020 ).

Criminalisation of racial discrimination and associated penalties should be promoted and intensified in countries by political leaders and existing powers. This can assist with reducing both overt and subtle display of racial superiority and discrimination against non-citizens and people of colour ( Avery & Cooper, 2020 ).

Considering the possibility that racial discriminatory behaviour can be learned and unlearned ( Chick, 2005 ), promotion of racial tolerance and acceptance among children in schools can be a useful long-term approach for eliminating racial discrimination against non-citizens, people of colour, and ethnic minorities. Authorities at places of social gatherings, such as work, hospitals, sports avenues, can intensify advocacies against racial discrimination.

It is important to always understand that our differences should complement rather than reprove one another. Expression of love, understanding, patience, and tolerance towards one another will make the world a better place to live in.

Authorship statement

Conception and design of study: I.Y.A.

Acquisition of data: I.Y.A.

Analysis and/or interpretation of data: IYA.

Drafting the manuscript: I.Y.A.

Reviewing the manuscript critically for important intellectual content: I.Y.A.

Approval of the revised version to be published: I.Y.A.

Declaration of competing interest

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Five actions you can take against racism and discrimination

The Universal Declaration of Human Rights (UDHR) says that all human beings are born free and equal in dignity and rights, and that we all have the right to a life free from discrimination and degrading treatment.

Unfortunately, the history of the world has seen too many crimes of hate and discrimination. But this doesn’t have to be the reality we live with . From the civil rights movement in the USA in the 1960s, to the fall of apartheid in South Africa, many people have come together to fight racism and discrimination , and they have achieved remarkable things.

But the work is far from finished and we all have a role to play . There are things we can do as individuals, but we can also call on our decision makers to put in place policies and programmes to bring lasting change to our communities.

1. Listen and educate yourself

Pay attention to the voices of people who experience racism every day – listen to friends, classmates, neighbours, and community leaders.

There are also a lot of articles, books, documentaries, films and podcasts on issues of racism, discrimination and privilege. Listen to what the people in them have to say. Understand and confront your own privilege. Be prepared to feel uncomfortable at times. Many of us absorb biases and prejudices at an early age, so they are not easy to unlearn.

2. Raise awareness

Share the resources that you have found useful with your community to help them learn how they can play a role in ending racism and discrimination. If you have younger siblings or family members, set a good example for them. Try to look for games or books that can help them learn that we all have a right to dignity and safety - there are lots online.

3. Challenge everyday discrimination and racism

Racism and discrimination happen around us all the time. Often it is in the form of jokes, stereotypes or insensitive comments and questions from our friends, family members or colleagues. If you witness a friend or family member saying racist or discriminatory things, you should talk to them, if you feel safe to do so. Approach them privately first – in person or via direct message.

They are more likely to be receptive if they don’t feel publicly embarrassed. Point out to them that what they are saying is racist or discriminatory and remind them that everyone has the right to dignity and that in many countries it is against the law to discriminate against a person because of the color of their skin, their ethnicity, religion, gender or sexual orientation. Encourage them to learn more about the historical context of racial prejudice and discrimination, and share resources that you have found helpful.

If you see someone being bullied or harassed, intervene if it is safe to do so.

4. Report racist or discriminatory content online

Many social media platforms want their platforms to be safe and empowering for people of all backgrounds. If you see content that you think violates their guidelines, report it to the platform.

If you see content in a newspaper or other traditional media that reflects prejudice, leave a comment or send a letter to the editor to let others know that intolerant remarks are unkind and uncalled for.

Quote from a Voices of Youth contributor

5. Is your school or university against racism and discrimination?

Schools and universities should be safe places for children and young people of all races and ethnicities. Find out whether your school or university has a policy on non-discrimination and racism, safe ways to report incidents, support services, and programmes or initiatives to promote tolerance, diversity and inclusion. If not, work with other students and school/university management to start a discussion and identify ways in which your place of learning can become a safer and more empowering environment for all students.

If you have other suggestions, share them in the comments below or submit a blog or spark .

Extra actions for young storytellers

share your story .

It is important that the stories and experiences of people who face racism and discrimination are told. At the same time, we understand this can be very difficult and painful. If it feels safe and empowering, tell your story and share your experiences.

? Amplify the voices of people who experience discrimination and racism

Rather than speaking for people, use your platforms to amplify the voices of people who experience discrimination and racism directly.

✍️ Telling someone else’s story

If you are telling the story of someone who comes from a very different background to you based on their race or ethnicity avoid using words or phrases that are stereotypical or insensitive. Think about how you are portraying the person – are you presenting them as a full human being with a range of interests and experiences? Make sure you do your research beforehand and think about the images you use – do they treat someone with dignity and respect, or do they perpetuate stereotypes? Would you like to be portrayed in this way?

This also applies to telling the stories of people who have different experiences form you based on their gender identity, religion, socioeconomic group, migration status or disability.

ADDITIONAL RESOURCES:

Five things you and your family can do now to help create a more just society

Learning about racism and discrimination

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Discrimination: What it is and how to cope

For many people, discrimination is an everyday reality. Discrimination is the unfair or prejudicial treatment of people and groups based on characteristics such as race, gender, age, or sexual orientation.

Racism, Bias, and Discrimination

Discrimination: What it is, and how to cope

What is discrimination?

Discrimination is the unfair or prejudicial treatment of people and groups based on characteristics such as race, gender, age, or sexual orientation. That’s the simple answer. But explaining why it happens is more complicated.

The human brain naturally puts things in categories to make sense of the world. Very young children quickly learn the difference between boys and girls, for instance. But the values we place on different categories are learned—from our parents, our peers, and the observations we make about how the world works. Often, discrimination stems from fear and misunderstanding.

Stress and health

Discrimination is a public health issue. Research has found that the experience of discrimination—when perceived as such—can lead to a cascade of stress-related emotional, physical, and behavioral changes . Stress evokes negative emotional responses, such as distress, sadness, and anger, and can often lead to an increase in behaviors that harm health, such as alcohol, tobacco, and other substance use, and a decrease in healthy activities, such as sleep and physical activity.

Discrimination can be damaging even if you haven’t been the target of overt acts of bias. Regardless of your personal experiences, it can be stressful just being a member of a group that is often discriminated against, such as racial minorities or individuals who identify as lesbian, gay, bisexual, or transgender.

The anticipation of discrimination creates its own chronic stress. People might even avoid situations where they expect they could be treated poorly, possibly missing out on educational and job opportunities.

Discrimination, big and small

Laws are in place to protect people from discrimination in housing and employment.

The Fair Housing Act prohibits discrimination in the sale, rental, and financing of dwellings on the basis of race, color, national origin, religion, sex, familial status, and disability.
The Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act prohibit discrimination in employment on the basis of race, color, sex, ethnic origin, age, and disabilities.

Unfortunately, discrimination still occurs.

Yet experts say that smaller, less obvious examples of day-to-day discrimination—receiving poorer service at stores or restaurants, being treated with less courtesy and respect, or being treated as less intelligent or less trustworthy—may be more common than major discrimination. Such day-to-day discrimination frequently comes in the form of “microaggressions” such as snubs, slights, and misguided comments that suggest a person doesn’t belong or invalidates his or her experiences.

Though microaggressions are often subtle, they can be just as harmful to health and well-being as more overt episodes of major bias. People on the receiving end of day-to-day discrimination often feel they’re in a state of constant vigilance, on the lookout for being a target of discrimination. That heightened watchfulness is a recipe for chronic stress.

Dealing with discrimination

Finding healthy ways to deal with discrimination is important, for your physical health and your mental well-being.

Focus on your strengths. Focusing on your core values, beliefs, and perceived strengths can motivate people to succeed, and may even buffer the negative effects of bias. Overcoming hardship can also make people more resilient and better able to face future challenges.

Seek support systems. One problem with discrimination is that people can internalize others’ negative beliefs, even when they’re false. You may start to believe you’re not good enough. But family and friends can remind you of your worth and help you reframe those faulty beliefs.

Family and friends can also help counteract the toll that microaggressions and other examples of daily discrimination can take. In a world that regularly invalidates your experiences and feelings, members of your support network can reassure you that you’re not imagining those experiences of discrimination. Still, it’s sometimes painful to talk about discrimination. It can be helpful to ask friends and family how they handle such events.

Your family and friends can also be helpful if you feel you’ve been the victim of discrimination in areas such as housing, employment, or education. Often, people don’t report such experiences to agencies or supervisors. One reason for that lack of reporting is that people often doubt themselves: Was I actually discriminated against, or am I being oversensitive? Will I be judged negatively if I push the issue? Your support network can provide a reality check and a sounding board to help you decide if your claims are valid and worth pursuing.

Get involved. Support doesn’t have to come from people in your family or circle of friends. You can get involved with like-minded groups and organizations, whether locally or online. It can help to know there are other people who have had similar experiences to yours. And connecting with those people might help you figure out how to address situations and respond to experiences of discrimination in ways you haven’t thought of.

Help yourself think clearly. Being the target of discrimination can stir up a lot of strong emotions including anger, sadness, and embarrassment. Such experiences often trigger a physiological response, too; they can increase your blood pressure, heart rate, and body temperature.

Try to check in with your body before reacting. Slow your breathing or use other relaxation exercises to calm your body’s stress response. Then you’ll be able to think more clearly about how you want to respond.

Don’t dwell. When you’ve experienced discrimination, it can be really hard to just shake it off. People often get stuck on episodes of discrimination, in part because they’re not sure how to handle those experiences. You might want to speak out or complain, but you’re not sure how to go about it, or are afraid of the backlash. So instead, you end up ruminating, or thinking over and over about what you should have done.

In a calmer moment, it might be helpful to talk over the ways you can cope with similar experiences in the future. Try to come up with a plan for how you might respond or what you could do differently next time. Once you’ve determined how to respond, try to leave the incident behind you as you go on with your day.

Seek professional help. Discrimination is difficult to deal with, and is often associated with symptoms of depression. Psychologists are experts in helping people manage symptoms of stress and depression, and can help you find healthy ways to cope. You can find a psychologist in your area by using APA’s Psychologist Locator Service.

Discrimination resources

If you have questions about policies or concerns about discrimination in your workplace, the human resource department is often a good place to start. To learn more about discrimination in housing and employment, or to file a complaint, visit:

Equal Opportunity Employment Commission
U.S. Department of Housing and Urban Development

Neag School of Education

Reducing racism in schools: the promise of anti-racist policies.

by: Britney L. Jones
September 22, 2020
Community Engagement

Introduction

In 2020, the deaths of Ahmaud Arbery, George Floyd, Breonna Taylor, and others led to a resurgence of the Black Lives Matter movement across the nation and around the globe. The revitalization of this movement has come with increased public demand for policy change, and specific calls for anti-racist policies in schools. As a result, many educational leaders are grappling with what this means for their respective contexts, and the extent to which their school or district’s current policies measure up to public demand.

Educating and training teachers and administrators on how to enact culturally relevant and inclusive practices is one step towards eliminating racism in schools.

Educating and training teachers and administrators on how to enact culturally relevant and inclusive practices is one step towards eliminating racism in schools. Expressing a commitment to anti-racism through school policies, statements, guidelines, or codes takes these efforts a step further. Within the last decade, some schools and districts have penned their own anti-racist policies to detail the steps they are taking to disrupt racism within their locale. In this brief, I describe these policies and highlight recent initiatives aimed at eliminating racism in schools. As school and district leaders advance their own anti-racist policies and objectives, this policy brief provides guidance based on the practices of diverse districts in the U.S. and elsewhere.

Anti-Racist Policy in Schools

Anti-racist policies are usually documents drafted by a governing body and disseminated to staff, parents, and students in a particular district or school. Similar to a code of conduct, school handbook, or anti-bullying policy, the policy states the organization’s commitment to anti-racism and lays out procedures that must be followed in order to uphold the organization’s commitment to the cause of dismantling racism to create an inclusive, equity-oriented environment. Over the past decade, schools and districts, both nationally and internationally, have written and adopted policies to address racism, discrimination, and inequity in schools. U.S. districts often refer to these policies as equity policies, while in places such as the United Kingdom (U.K.), Australia, Ireland, and South Africa, similar policies are usually entitled anti-racist policies. Despite the difference in name, they often share similar objectives and features. Anti-racist and equity policies typically start with a statement of assurance that the board or governing body has considered the importance of racial equity, followed by a renunciation of discriminatory behavior within their context. Next, the document includes a definition of racism. Then, these policies describe the steps taken by the governing body to ensure equity or anti-racism.

Components of Anti-Racist Policy: Areas to Address

For this brief I examined over 25 publicly available equity or anti-racist policies from several states in the U.S. and from schools in Australia, South Africa, Ireland and the U.K. I found that most policies address racism through the lenses of:

school environment,
incident reporting,
data analysis, and

After addressing these components, policies typically offer guidance or present action steps to support implementation. These include:

providing a clear and accurate definition of racism for consumers of the policy,
devising a plan for policy dissemination,
appointing an anti-racist committee or point person,
coupling equity/anti-racist policy with other school or district-wide policies, and
partnering with external organizations.

Below I briefly describe each of these components.

School Environment: Creating an Anti-Racist/Equity-Oriented Culture and Climate

Most of the policies discuss the school environment at length. Generally, they describe ways in which school staff can create and maintain a welcoming and inclusive environment for all students. One way policies describe achieving this goal is through representation of multiple racial and ethnic backgrounds in curricula, texts, hallway displays, and digital media. They also state the importance of incorporating positive role models and discussing issues of race and diversity within classrooms and during school-wide events. Several anti-racist/equity policies advocate events focusing on diversity and empathy building, such as Friendship Week or Multicultural Week. Policies also describe building teachers’ awareness of racism and bias as a means to shift culture and climate in the school. These policies require teachers to be mindful of cultural assumptions and bias, develop racial literacy, enact cultural responsiveness, and understand their own identity. In the Anti-Racist Policy of Bure Valley School in the U.K., the authors offer specific examples of how this can be done, asserting that students “should be confident to speak, hear or read in their home language in school” and have their names “accurately recorded and correctly pronounced” by teachers (p. 2).

Reporting: Developing a System for Reporting Racial Incidents

Most policies also detail reporting requirements. Authors of these policies aim to ensure a system is in place to deal with incidents of racism and discrimination. This component often lays out a specific procedure for responding to an incident including requiring a written report, timeline for resolution, documentation of resolution, and family notification. In addition to forms for reporting, many anti-racist/equity policies require a racism logbook or place for complaints to be recorded permanently. These policies also describe ways in which schools could support students who may be victims of a racist or discriminatory act. Some policies note that support for students involved in an incident should be ongoing and coupled with psychological or mental health services. Additionally, some policies encourage schools to help students feel empowered to report incidents and develop strategies for dealing with racial conflict.

Staffing: Recruiting, Hiring, and Retaining Diverse Staff with Equity/Anti-Racist Mindsets

Many of the policies emphasize the need to recruit and retain staff members dedicated to anti-racism, and committed to providing equity-based training for new and veteran educators. In its equity statement, the Princeton Public Schools District in New Jersey states, “The goal is to attract, develop, inspire, and retain a diverse workforce within a supportive environment.” Several other schools and districts echo this sentiment within their policies by describing their efforts to diversify their staff, both in terms of demographics and beliefs. They attempt to fulfill this goal through recruitment of culturally and linguistically diverse teachers and administrators. They articulate the importance of hiring staff that mirrors the student population. Some districts or schools call for staff hiring to follow equal opportunity hiring procedures and the use of equity-oriented criteria for selection. For teachers already employed, policies name professional development and new staff training as opportunities to provide new learning around racial consciousness and inclusivity.

Data Analysis: Employing an Equity Lens to Identify Disparities and Inform Decision-Making

Several policies aim to challenge racism through race conscious data collection and review. According to these policies, “effective” review of data means testing for differences across student demographic groups in access, performance, and discipline. The Portland Public School District in Oregon suggests using data to identify and modify assessments that lead to over or under-representation of minoritized groups. For example, some policies identify focus areas such special education identification and suspension for review given the history of over-representation of students from minoritized groups in special education and among suspensions. Some state the goal of increasing the number of minoritized students enrolled in Advanced Placement courses. Others call for a closer look at how selective admissions criteria for enrollment may lead to adverse effects and the ways in which admissions testing may disadvantage students of color. Baltimore City Public Schools in Maryland states their plan to disaggregate data to “analyze trends, identify gaps, and develop racial equity priorities” (p. 4). To fulfill this objective of equity-oriented data analysis, some policies highlight the need for constant monitoring and reporting on progress towards goals.

Funding: Assessing and Allocating Funds for Equity Purposes

While undoubtedly important, funding is mentioned in only a few of the anti-racist/equity policies. Policymakers in Baltimore include the following line in their policy: “Ensure that purchasing/procurement practices provide access and economic opportunities within communities represented by students of color” (p. 4). This is one way that educational institutions can be mindful of their economic impact on the community. Schools may also decide to allot funds to ensure attainment of aforementioned objectives such as equitable hiring, staff training, and data analysis resources.

While undoubtedly important, funding is mentioned in only a few of the anti-racist/equity policies.

In sum, the policies reviewed tend to address five areas to enhance anti-racism and equity in their contexts. Creating equity-oriented objectives in the areas of school environment, incident reporting, staffing, data analysis, and funding is an important start. However, when drafting these documents, policymakers should include additional guidelines to support the implementation of anti-racist policies. Next, I describe some of the ways existing policies attempt to ensure attainment of policy objectives.

Components of Anti-Racist Policy: Process Elements to Support Implementation

Clearly and Accurately Define Racism

One way to create strong anti-racist policy is by providing a clear definition of racism to frame the policy. In addition to setting context for the policy, opening with a definition creates an opportunity to educate readers and norm on the school or district’s understanding of racism. Such definitions vary across policies. Some of the international anti-racist policies begin by distinguishing between personal and institutional racism and offer clear definitions for each. For example, in the U.K. the Truro School’s Anti-Racist policy relies on a definition from The Stephen Lawrence Inquiry Report, which states that institutional racism is “the collective failure of an organisation to  provide an appropriate and professional service to people because of their colour, culture or ethnic origin.” The policy continues: “when a child is subject to racist bullying or harassment, their behaviour and attainment are likely to be affected; if the behaviour is treated in isolation without taking into consideration the issues and effects of racism, this can be described as institutional racism. The racist element must be explicitly recognised and dealt with” (p. 2). This definition is provided before any other components of the policy are explained. Policymakers should consider how their context defines equity and racism before laying out a plan to address these issues. Consumers of anti-racist policy may be better equipped to follow subsequent guidelines if they have a foundational understanding of the problem and the purpose of the policy.

Policy Dissemination

The second way policymakers intend to make these policies come alive is through a plan for dissemination. Many policies are available online, on the school or district website. Other strategies for distribution include a physical copy in a designated location such as a school’s main office and inclusion in student and staff handbooks. One district states that a summary of the policy will be included in students’ yearly planners. Other ideas for dissemination include public displays in prominent areas of the school, placement in newsletters, and discussions during assemblies. Importantly, several anti-racist/equity policies name all parties that should review the policy, including staff, parents, students, contractors, service provides, and any other school visitors.

Appointing a Committee or Point-Person

The third way policymakers support implementation of these policies is by putting an individual or group in charge of monitoring the school’s progress towards goals. In some cases this is the superintendent or another school leader; in other contexts, an equity committee is charged with this responsibility. For example, in Shaker Heights, Ohio there is an equity task force made up of 11 educators, nine community members, and two students. In general, the governing body or individual is required to report to the school board, make recommendations based on data, promote alignment between equity and other goals, present tools or resources, and ensure compliance with state and federal laws. Most policies describe the need for an annual report or review as part of their action plan.

Coupling Anti-Racist/Equity Policies with Other School Policies

A fourth way to promote accountability and adherence to anti-racist/equity policy is by associating it with other school policies, especially those that are well established. Most of the policies reviewed for this brief are linked to other policies focusing on topics such as: discipline, behavior, anti-bullying, school safety, the staff code of conduct, and the student code of conduct. Several anti-racist/equity policies identify their relationship to standards and curriculum and federal laws regarding race and discrimination. Attaching these policies to existing initiatives helps to integrate them into the organizational fabric of these educational institutions.

Partnering with External Organizations

Finally, to support implementation of anti-racist policy, schools and districts should seek guidance from organizations already committed to anti-racist work. Several policies name equity-based or anti-racist organizations with which they were affiliated. This is an important component because it lessens the burden on educational systems to deal with complex issues of race and equity on their own and presents the opportunity to rely on the expertise of government agencies, universities, community organizations, research organizations, and anti-racist nonprofits. This can also facilitate and strengthen relationships between schools and communities.

A Promising Example

As mentioned above, many of the existing anti-racist and equity policies were drafted after 2010. Yet, recent events and the current sociopolitical climate signal the need to revisit and strengthen these policies. One district has done just this. In June 2020, the Indianapolis Public School District in Indiana, led by superintendent Aleesia Johnson, unanimously adopted a new Racial Equity Policy and publicly affirmed that Black lives matter in a resolution. Resolution No. 7861 and Board Policy 1619 – Racial Equity Mindset, Commitment, and Actions comes at a time when the momentum of the Black Lives Matter movement is palpable. This district is demonstrating how to use policy, first, to take responsibility for systemic failure to adequately support Black and Brown students in the past, and, second, to plan for a better future.

In June 2020, the Indianapolis Public School District in Indiana, led by superintendent Aleesia Johnson, unanimously adopted a new Racial Equity Policy and publicly affirmed that Black lives matter in a resolution. Resolution No. 7861 and Board Policy 1619 – Racial Equity Mindset, Commitment, and Actions comes at a time when the momentum of the Black Lives Matter movement is palpable.

With this new policy, the Indianapolis Public School District details specific action steps to increase racial equity. These include:

partnership with the Racial Equity Institute (which helps organizations challenge systems of power and increase equity);
restructuring, reducing, and auditing police presence and practices in schools;
implementing a Supplier Diversity Policy with the aim of supporting local businesses (particularly those owned by women, people of color, and veterans);
creating school-based equity teams for data analysis;
increasing the recruitment and retention of Black staff;
ensuring equitable enrollment across school types;
shifting the budget to be more student centered and allocating funds to aid schools demonstrating the highest need; and
considering how housing segregation impacts school choice and limiting boundaries to school access in the enrollment process.

We can all learn from this policy, with its high level of detail alongside the very public commitment by the board and superintendent. Not only does this new policy incorporate many of the aforementioned components such as commitment to reform in the areas of funding, data analysis, and school environment, the Indianapolis Public School (IPS) District has also developed strong plans to support its implementation. The district has partnered with the Racial Equity Institute to refine goals and train staff. IPS also signals the importance of considering other areas of anti-racist policy reform such as police presence in schools, and recognizing Juneteenth as a district holiday. It is also worthwhile to note that the IPS district acted swiftly by moving up the release of this new policy (initially set to be released later in the summer) to respond to recent acts of racism and injustice in the national news. Other districts around the country should follow IPS’s lead.

Recommendations for Creating Anti-Racist Policies

The components of existing equity/anti-racist education policies described above provide a general understanding of what these policies should include: equity-oriented objectives for school climate, incident reporting, staffing, data analysis, and funding. The creators of these policies should also consider providing a clear definition of racism, laying out a plan regarding how to communicate the objectives of the policy to the broader community, specifying the individual(s) who will oversee policy implementation, identifying the connections between anti-racist policy and other school policies, and outlining how to leverage partnerships with external organizations committed to increasing equity.

In addition to these components, I share two additional suggestions for those drafting anti-racist policy. The first addresses the accessibility of anti-racist policy and associated tools or resources. The second deals with attention to the personal and interpersonal work that must be done to implement anti-racist policy. I describe each in further detail below.

Accessibility

Several schools and districts made their policies and equity tools easily accessible to staff and the public alike. Having materials and policies readily available increases the likelihood that teachers and school leaders have access to and use resources. It also creates a more collegial environment as other schools and districts attempt to create their own anti-racist policies. For example, the Minneapolis Public School District in Minnesota shares an Equity and Diversity Impact Assessment tool on their website, and the Jefferson County Public School District in Louisville, Kentucky publicly shares their tools for equity analysis. Rather than reinventing tools, other districts may choose to cite and borrow from such existing assessments. The Shaker Heights, Ohio School District website provides a link to an equity resources page with suggested reading and links to equity-oriented organizations, while the Indianapolis Public Schools website has a link to its “Say Their Names” toolkit “to help foster productive conversations about race and civil disobedience.” Links to these sorts of additional resources, readings, and campaigns offer helpful guidance as schools and districts across the country, and beyond, attempt to strengthen their anti-racist efforts.

Attention to the Personal and Interpersonal Work of Anti-Racist Policy Implementation

Districts and schools seeking to advance anti-racism and equity can attend to the aforementioned components to create effective policy. However, they must also consider the deeply personal work that is required alongside anti-racist reform. Many of these policies ask school staff to interrogate their own biases, positions of power, and privilege. The extent to which these types of personal reflection are encouraged and occur contextualizes policy implementation. Based on a study done with schools in California, the Stanford Center for Opportunity Policy in Education identified characteristics of schools with a record of narrowing the impact of racism and inequity. The authors stress the need for equity-oriented school leaders to guide staff and high levels of trust among members of the school community. This report highlights the need to consider the ways in which school-level features and interactions matter for the implementation of anti-racist or equity policy. Thus, in addition to focusing on the components within anti-racist or equity policies, we must also consider the characteristics and dispositions associated with positive change and increased student performance at the school and district level.

Some districts have supported educators in engaging in the vital personal and interpersonal work necessary to advance anti-racism and equity. Pat Savage-Williams, president of Evanston Township Board of Education in Illinois, shares advice for fellow board members looking to challenge racial inequity. In her article posted on the school board website , she promotes many of the components described in this brief, such as being data informed, using school budgets to limit disparities, and developing external partnerships. Additionally, she suggests that board members be willing to undergo a personal journey of reflection and understanding to expand their knowledge of racial issues, and should “expect opposition.” This example underscores the work that must be done on an individual and interpersonal level to make these policies come alive.

This policy described the topics addressed in anti-racist schooling policies and outlined the shifts educational leaders are making to strengthen and clarify not only their policies, but also their personal stance on racism and equity.Policymakers must consider how they define racism, the objectives of anti-racist policy, and how to make the policy actionable. After creating and revising anti-racist policies, policymakers must also consider the characteristics of the school community in which these documents will live. Following these steps can lead to policy changes that interrupt the status quo. As students and communities demand change, educational institutions must consider how they will respond and whether that response disrupts or facilitates systems of inequity.

Chart outlining steps on policies aimed at implementing anti-racism in schools.

Britney L. Jones is a doctoral candidate in the Learning, Leadership, and Education Policy program at the University of Connecticut’s Neag School of Education. Her research interests include culturally relevant and inclusive practices in K-12 contexts with a focus on teachers’ sociopolitical consciousness. Her doctoral work follows a BA in education studies and an MA in elementary teaching, both from Brown University. Britney also worked previously as a fourth-grade teacher and science curriculum developer. For more information, contact [email protected] .

CEPA is a research center based at the Neag School that seeks to inform educational leaders and policymakers on issues related to the development, implementation, and consequences of education policies. Learn more about CEPA at cepare.uconn.edu . Access the original PDF of this issue brief (including the complete Appendix).

House Passes The Equality Act: Here's What It Would Do

Danielle Kurtzleben

Protesters gather outside the Supreme Court in Washington where the Court on Oct. 8, 2019, as the court heard arguments in the first case of LGBT rights since the retirement of Supreme Court Justice Anthony Kennedy. Susan Walsh/AP hide caption

Updated Feb. 25, 4:39 p.m. ET

The House of Representatives voted on Thursday to pass the Equality Act, a bill that would ban discrimination against people based on sexual orientation and gender identity. It would also substantially expand the areas to which those discrimination protections apply.

It's a bill that President Biden said on the campaign trail would be one of his top legislative priorities for the first 100 days of his presidency. The House vote was largely along party lines, passing with the support of all Democrats and just three Republicans. The bill now goes to the Senate, where its fate is unclear.

When House Democrats introduced the bill last week, Biden reiterated his support in a statement: "I urge Congress to swiftly pass this historic legislation," he wrote. "Every person should be treated with dignity and respect, and this bill represents a critical step toward ensuring that America lives up to our foundational values of equality and freedom for all."

But it's also controversial — while the Equality Act has broad support among Democrats, many Republicans oppose it, fearing that it would infringe upon religious objections.

Here's a quick rundown of what the bill would do, and what chance it has of becoming law.

What would the Equality Act do?

The Equality Act would amend the 1964 Civil Rights Act to explicitly prevent discrimination based on sexual orientation and gender identity.

The bill has been introduced multiple times before and previously passed the House in 2019. However, the law's impact would be different in practical terms now than it was then.

That's because the Supreme Court ruled in June of last year , in Bostock v. Clayton County , that the protections guaranteed by the 1964 Civil Rights Act on the basis of sex also extend to discrimination against lesbian, gay, and transgender Americans. The logic was that a man who, for example, loses his job because he has a same-sex partner is facing discrimination on the basis of sex — that, were he a woman, he wouldn't have faced that discrimination.

Supreme Court Delivers Major Victory To LGBTQ Employees

This act would explicitly enshrine those nondiscrimination protections into law for sexual orientation and gender identity, rather than those protections being looped in under the umbrella of "sex." However, the Equality Act would also substantially expand those protections.

The Civil Rights Act covered discrimination in certain areas, like employment and housing. The Equality Act would expand that to cover federally funded programs, as well as "public accommodations" — a broad category including retail stores and stadiums, for example.

("Public accommodations" is also a category that the bill broadens, to include online retailers and transportation providers, for example. Because of that, many types of discrimination the Civil Rights Act currently prohibits — like racial or religious discrimination — would now also be explicitly covered at those types of establishments.)

One upshot of all of this, then, is that the Equality Act would affect businesses like flower shops and bakeries that have been at the center of discrimination court cases in recent years — for example, a baker who doesn't want to provide a cake for a same-sex wedding .

In Narrow Opinion, Supreme Court Rules For Baker In Gay-Rights Case

Importantly, the bill also explicitly says that it trumps the Religious Freedom Restoration Act (commonly known by its acronym RFRA). The law, passed in 1993, set a higher bar for the government to defend laws if people argued those laws infringed upon religious freedom.

Under the Equality Act, an entity couldn't use RFRA to challenge the act's provisions, nor could it use RFRA as a defense to a claim made under the act.

What proponents say

Supporters say that the Equality Act simply extends basic, broadly accepted tenets of the Civil Rights Act to classes of people that the bill doesn't explicitly protect.

"Just as [a business] would not be able to turn away somebody for any other prohibited reason in the law, they would not be able to do that for LGBTQ people either. And we think that's a really important principle to maintain," said Ian Thompson, senior legislative representative at the ACLU.

The bill also would be national, covering states that do not have LGBTQ anti-discrimination laws. According to the Human Rights Campaign, an LGBTQ advocacy organization, 27 states do not have those laws.

Supporters additionally say the bill would cement protections that could otherwise be left up to interpretation.

Biden Signs Most Far-Reaching Federal Protections For LGBTQ People Yet

"President Biden issued an executive order directing agencies to appropriately interpret the Bostock ruling to apply not just to employment discrimination, but to other areas of law where sex discrimination is prohibited, including education, housing, and health care," the Human Rights Campaign wrote in support of the bill . "However, a future administration may refuse to interpret the law this way, leaving these protections vulnerable."

And with regard to RFRA, proponents argue that the bill would keep entities from using that law as a "license to discriminate," wording echoed by Human Rights Watch and many other Equality Act supporters.

What opponents say

The question of religious freedom is the main issue animating people against the Equality Act.

Douglas Laycock, a law professor at the University of Virginia, has criticized the Equality Act since its 2019 introduction. He told NPR in an email that the law is "less necessary" now, after the Bostock decision.

Furthermore, while he supports adding sexual orientation and gender identity to federal anti-discrimination statutes, Laycock believes that this bill goes too far in limiting people's ability to defend themselves against discrimination claims.

"It protects the rights of one side, but attempts to destroy the rights of the other side," he said. "We ought to protect the liberty of both sides to live their own lives by their own identities and their own values."

How The Fight For Religious Freedom Has Fallen Victim To The Culture Wars

Another key fear among opponents of the Equality Act is that it would threaten businesses or organizations that have religious objections to serving LGBTQ people, forcing them to choose between operating or following their beliefs.

Could it pass?

The Democratic-led House passed the Equality Act in 2019 with unanimous support from Democrats (as well as support from eight Republicans), and it passed in similar fashion in the current Democratic House.

The Senate is more uncertain. Democrats in the Senate broadly support the bill. Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, among the most moderate Democratic senators, signed a letter in support of it last year .

But the bill would need 60 votes to avoid a filibuster in the Senate. Maine Republican Sen. Susan Collins cosponsored the bill in 2019, but not all of her fellow, more moderate Republicans are on board. Utah Sen. Mitt Romney, for example, told the Washington Blade that he won't support the act, citing religious liberty.

"Sen. Romney believes that strong religious liberty protections are essential to any legislation on this issue, and since those provisions are absent from this particular bill, he is not able to support it," his spokesperson told the Blade.

It's uncertain how other moderate Republicans might vote. Alaska Sen. Lisa Murkowski, who supported the narrower Employment Nondiscrimination Act (ENDA) in 2013, has yet to respond to NPR's questions about her support of the Equality Act.

And while Ohio Sen. Rob Portman, who likewise supported ENDA, didn't give a definitive answer on his support, his response made it clear that he could object to it on religious grounds.

"Rob opposes discrimination of any kind, and he also believes that it's important that Congress does not undermine protections for religious freedom," his office said in a statement. "He will review any legislation when and if it comes up for a vote in the Senate."

All Students Need Anti-racism Education

As more and more teachers, administrators, schools and organizations are questioning their practices and looking at the racist history of their institutions, many are finally asking, “How we can listen to and support Black students, teachers and communities who have been systemically silenced for too long?”

This question is essential, and examining anti-Blackness in our practice is something we all must be looking at. Looking at anti-Blackness or inequities brought about by systems rooted in white supremacy and racism is something all students should be doing. While more institutions, including primarily or historically white ones, are committing to this work, white teachers with primarily white students can feel hesitant to discuss these issues since they may not feel it affects them. This idea is a fundamental misunderstanding of what anti-racist work actually is.

Anti-racist work means acknowledging that racist beliefs and structures are pervasive in all aspects of our lives—from education to housing to climate change—and then actively doing work to tear down those beliefs and structures. Those beliefs and structures don’t just exist in primarily white/and or privileged institutions—they thrive there.

Schools that house mostly students and teachers who have benefited from white privilege can lack the perspective to push back on institutional malpractice or racist mindsets that may be present. In addition, it is difficult to convince those with power and privilege to give those privileges up without clear education and work to understand why doing so is a necessity for true justice in our society.

Doing the work in spaces of privilege may look different, but educators cannot pretend that anti-racist work doesn’t exist simply because their student body isn’t directly harmed by racism. There are clear aims that primarily white and otherwise privileged institutions must work toward in the fight against racism.

Teachers must re-evaluate their curriculum.

When teaching standards and core curricula have been developed for your students, it’s easy to simply follow along. However, it’s important to remember that our education system has been founded on historically racist practices, including silencing those from disenfranchised communities.

It’s not just BIPOC who need to see themselves in the literature or history they study. White students need to hear those perspectives as well, just as straight and cisgender students need to read LGBTQ+ stories. This is because students need not just mirrors but also windows into other cultures, as Dr. Rudine Sims Bishop notes in her essay “ Mirrors, Windows and Sliding Glass Doors. ”

Students from communities with white privilege need to hear voices from other perspectives in order to grow their own thinking. Those perspectives need to be diverse and empowering as well—only showing Black suffering or slavery does not begin to break down problematic beliefs about Black people. Instead, students coming from positions of power need to see and understand the power and agency of those who have been historically disenfranchised, particularly since society frequently tells them otherwise. This will allow white students and teachers to have a more accurate and nuanced understanding of our history, while also ensuring they can center BIPOC voices and be allies and accomplices instead of “saviors.”

Students need to understand privilege and rethink power.

Students from privileged communities can struggle to understand privilege since they may feel that they have had to work hard or struggle at times in their lives. Teachers must help students understand how privilege works at a systemic level that may have given students an edge that, while it may be one they didn’t ask for, is still very real.

The work does not stop there, though. It can be easy in teaching privilege to fall into the trap of “white guilt” or “privilege guilt” (or even “survivor guilt” for BIPOC who have moved up socioeconomically and have internalized the belief that their communities were something to be “survived”). While guilt can be an important emotion to notice and process, educators should help students move through it to a place of action. Beyond “feeling bad” about generations of oppression, how can they use this knowledge to advocate for change and begin breaking down their own racist beliefs? How can they also reframe their understandings of privilege so that they stop prioritizing hegemonic ideas of success and worth?

Some of that will mean teaching students to analyze and reframe how they see values and stories from other cultures. Most of us were taught to praise white-dominant cultural ideas: financial success, rugged individualism, paternalism. Because of this, cultures with different priorities may not be seen as “successful” or “valuable” in our eyes and in the eyes of our students. We need to teach students with privilege not to be “saviors” for historically disenfranchised communities, but rather to listen to, value and stand in kinship with them so we can work together toward justice.

Schools must interrogate their practices and how they gained institutional privilege to begin with.

Anti-racist work cannot be done on an individual or classroom level. Administrators, faculty and staff at primarily white or otherwise privileged institutions must question how this has affected their school, students and community. If you don’t have any Black students, why is that? If your school primarily serves folks with high socioeconomic status, what policies and events led to that? Schools need to consider how they can help create more integration in their community by having open and honest discussions with their parents and caregivers about the benefits of diverse schools ( including for white students ) or questioning policies (such as requirements regarding tardiness and truancy and dress codes ) that have made it historically difficult for more diverse populations to join their school community.

This also means making students from historically disenfranchised communities feel included when they do attend school. It’s not enough to simply have representation—students must feel that their identities are validated and that their school is a place that accepts them completely. In addition, schools must hold educators and students accountable when they say and do things that make school unsafe for those they claim they want to support. Only when students feel they will be supported by their schools will they be able to fully become a part of that school community.

As Dr. Ibram X. Kendi notes in his work How to Be an Antiracist , “There is no neutrality in the racism struggle. ... The claim of ‘not racist’ neutrality is a mask for racism. ... An antiracist is someone who is supporting an antiracist policy by their actions or expressing an antiracist idea.”

This means we educators have important questions to ask ourselves: Will I work to be anti-racist? Or will I continue thoughtlessly breathing in what Dr. Beverly Daniel Tatum calls the “smog of racism” and allowing that to affect my classroom, school and conduct in our larger world? We must actively take a stand against racism with all our students if we want to truly fight its systemic grasp on society.

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Fighting discrimination, hate crime and hate speech in Georgia

Back Essay Competition “I choose equality…” - new deadline

The Council of Europe Office in Georgia and the Georgian Ministry of Education, Science, Culture and Sport invites schools in Georgia to discuss equality and diversity with their classes and invites pupils, aged 15-18 years old, to enter an essay competition on their thoughts and experience of diversity and equality in Georgia.

See full information in Georgian >>>

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The co-operation project “Fight against discrimination, hate crime and hate speech in Georgia” aims to provide expertise, build competences, advocate and raise awareness among policy makers, legal professionals, law enforcement agencies and civil society organisations to enable them to:

fully align national legislation and bylaws on anti-discrimination, hate crimes, and hate speech as well as relevant monitoring mechanisms to the Council of Europe standards;
ensure their effective implementation;
increase public appreciation for the laws’ contribution towards democracy, human rights, peace and prosperity in the Georgian society.

The project is being implemented by the Council of Europe’s Anti-Discrimination Department (DG2) and the Human Rights policy and Co-operation Department (DG1) together with the Council of Europe Office in Georgia with the support of the Danish Neighbourhood Programme in Georgia (DANEP) under the Council of Europe’s Action Plan for Georgia.

The project runs from February 2018 till December 2021.

The project will increase the capacity of vulnerable groups including persons belonging to national minorities to make full use of their rights and participate in the Georgian society by providing:

expertise in legislative review of the criminal, civil and administrative legislative framework regarding anti-discrimination, hate crime and hate speech in line with the recommendations of the European Commission against Racism and Intolerance and other Council of Europe standards;
support in setting up a mechanism for data collection covering discrimination, hate crime and hate speech;
training of professionals and exchange of practices on anti-discrimination, hate speech and hate crime policies and relevant CoE standards and case law of the European Court for Human Rights to ensure their effective implementation;
raise awareness about human rights and anti-discrimination policy and their importance for securing democracy, peace and prosperity in the Georgian society through the 'I choose equality' campaign.

Cover of report of public survey on hate crime, hate speech and discrimination in Georgia

What do Georgians think about:

diversity in Georgian society
rights of minorites and vulnerable groups
who is affected by discrimination, hate crime and hate speech?
redress mechanisms and do they work?

Duration : February 2018- December 2021

Funding: Danish Neighbourhood Programme in Georgia (DANEP)

Budget: 2 000 000 Euros

10 Things You Can Do to Promote Anti-Racism, Diversity, Equity and Inclusion

The UW School of Nursing’s mission is to advance nursing science and practice through generating knowledge and educating future leaders to address health for all . To achieve this, we must espouse principles and practices that promote and advance anti-racism, diversity, equity, and inclusion. As a start, below is a list of things you can do in support of the school’s mission. Importantly, approaching these things with cultural humility (a mindset and process that allows one to be open to others’ identities through respectful inquiry and empathy; see more here ) and accountability for one’s actions is needed to be genuine and effective in living up to our organizational commitment.

STATE A LAND ACKNOWLEDGEMENT: A land acknowledgement is a formal statement honoring Native people and paying tribute to the original inhabitants of the land you occupy. At the UW, it is common to hear a land acknowledgement shared at the start of a meeting or as part of a group’s commitment to diversity, equity and inclusion work. The land acknowledgement commonly used at UW is, The University of Washington acknowledges the Coast Salish peoples of this land, the land which touches the shared waters of all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations. UW Tribal Relations  is a campus resource for guidance on how to develop and share a land acknowledgement. Using a land acknowledgement is only one way to promote recognition and support of Native communities; learn more about Native unity and advocacy in Seattle-King County at Seattle Urban Native Non-Profits and Real Rent Duwamish .
UNDERSTAND DIFFERENT LEVELS OF RACISM: Racism manifests in different forms, from interpersonal overt acts of hate to subtle institutionalized ways of creating unequal conditions that disadvantage groups. To be antiracist, it is helpful to have some fundamental understandings of how racism plays out. A good starting point is Dr. Camara Jones’ allegories about racism and its impact on health (video recording here ), including A Gardener’s Tale , and, A Cliff Analogy ,. Also, the video recording of Dr. Ben Danielson’s keynote presentation about reckoning and the need for individual, organizational, and societal commitment to address racism, given at the UW School of Nursing antiracism learning day on March 29, 2021, is available here . And, for educators, the UCSF Primer and Toolkit for Medical Educators is a resource that offers antiracist methods to examine and revise what and how you teach. More starting point resources for foundational, critical knowledge about racism, diversity, equity, and inclusion topics are available here .
TAKE NOTE OF YOUR IMPLICIT BIASES: We all unknowingly hold associations about other people based on their identities, like race/ethnicity, age, gender, ability, nativity, socioeconomic status, to name a few. These associations operate as biases that occur or are expressed automatically, without conscious awareness or intention; though they do affect our judgments, decisions, and actions. Often, implicit bias produces behavior that diverges from the explicit attitudes that we hold. The Implicit Association Test can (without charge) be accessed and taken online ( here ) to measure one’s implicit bias in relation to race, gender, age, religion, and other topics. Training modules on how implicit bias occurs and how to interrupt it in the clinical setting and learning environment have been created by the Center for Health Equity, Diversity, & Inclusion ( here ) and the Center for Health Sciences Interprofessional Education Research & Practice (first register here ; access content here ). As the UW Race & Equity Initiative points out, “we must recognize that biases do reside in us all, but that we can change our attitudes and our interactions for the better.”
ACKNOWLEDGE YOUR POSITIONALITY: The concept of positionality recognizes how different aspects of your social identities (e.g., race, age, gender, class, nativity, ability, to name a few) work together to create understanding and views of your place within social systems, structures, and networks. It is also important to take note of how our social identities are linked to inequitable and unequal systems of power and privilege, and how this influences your perspectives, interactions, and relationships with others and their social identities. Key to fostering an inclusive climate is acknowledging and being mindful of your positionality. An example from the University of British Columbia of how to examine your positionality is available here . If you are in an educator role, this module here and this publication here can help you consider positionality in the context of course instruction.
USE INCLUSIVE LANGUGE: Inclusive language is word choice that promotes the acceptance and value of all people, free from words or phrases that may exclude or stereotype them based on attributes or membership to a particular group. Inclusive language is centered around including and empowering everyone in the audience. It is important to note that language is fluid, and the meaning and connotations of words change over time. Guidance on inclusive language is available from UW Brand Management’s “Communicating with an Equity Lens” (available here ) and UW Continuing Nursing Education “Principles of Inclusive Language” (available  here ).
RESPECT PERSONAL PRONOUNS: Offer your personal pronouns when introducing yourself or when displaying your name on screen (e-mail, online video calls). For example, you can say, “My name is Butch de Castro. I use he and him pronouns. I am a professor in the UW School of Nursing.” To add your pronouns to your UW name so it is automatically a part of your e-mail name and other UW-related notifications, go to http://identity.uw.edu/ and add to your last name, for example, [– she, her], [– he, him], [– they, them], or other terms or combinations; note that some typing characters are not allowed. Also, when referring to a generic type of person in the singular, use they/them pronouns instead of binary gender pronouns (she/her, he/him). For example, rather than saying “Whenever a student will be late to class, he or she should alert his or her professor as soon as possible;” say, “Whenever a student will be late to class, they should alert their professor as soon as possible.” You can learn more about personal pronouns from a Pronoun FAQ developed by the UW Office of the Registrar as well as here .
ATTEND A “HEALS” TRAINING: HEALS training workshops are conducted quarterly by the UW School of Nursing. Developed by the UCSF School of Nursing, HEALS (Halt, Engage, Allow, Learn, & Synthesize) is a structured approach to help create respectful and inclusive environments. You will learn how to identify, deconstruct, and address bias, stereotyping, microaggressions, or exclusionary behavior through proactive measures and responsive steps. HEALS is a way to address the impact of what was said or done, and not the person who said/did what was problematic; as well as center those potentially impacted and not on the intent of the person saying it. Look for an announcement to join us in a supportive, school-community session to learn about HEALS.
REPORT BIAS AND DISCRIMINATION: A bias incident involves any discriminatory act against an individual or a group based on their age, religion, ability, race, ethnicity, national origin, sex, gender, gender identity, sexual orientation, marital status, veteran status, socioeconomic status, or any other identity. If you encounter, observe, or suspect incidents of bias or discrimination, you can file a bias incident report , that will be reviewed by the UW  Bias Incident Advisory Committee . Whenever possible, bias reports will be reviewed within 2 to 4 business days.  Other university policies and resources for reporting, getting assistance, and investigating bias and discrimination are listed here .
APPLY BEST PRACTICES FOR FACULTY/STAFF SEARCHES, RECRUITMENT, AND HIRING: The university promotes the recruitment, hiring, retention, and success of a diverse, inclusive faculty and staff; in alignment with goals articulated in the UW Diversity Blueprint . Toolkits of best practices are available for hiring managers and search committees as they seek to increase efforts regarding outreach and building a diverse applicant pool. These toolkits include resources about policies, procedures, planning, checklists, outreach, applicant/candidate review and selection, and onboarding and retention. Diversity best practices toolkit for faculty available here and for staff available here . And, this welcome video here about the UW Race & Equity Initiative can be used for faculty and staff orientation.
PURCHASE FROM SMALL, LOCAL, AND DIVERSE BUSINESSES: The  UW Business Diversity & Equity (BDE)  program promotes UW’s commitment to diversity, equity, and inclusion by encouraging the UW community to work with small, local and diverse businesses when sourcing and purchasing goods and services.  Collaborating with Procurement Services and Capital Planning & Development, BDP connects buyers with diverse suppliers, and provides guidance and networking opportunities for companies who want to do business with the UW.  Support the communities UW serves by considering a diverse supplier when planning and making purchasing decisions. The UW has many diverse suppliers providing a wide array of goods and services ranging from catering to consulting services and office supplies to promotional products.  See list  here (e.g., catering, consulting services, office supplies, promotional products).

We encourage all to continuously seek out opportunities for personal growth and learning. Additional DEI resources can be found on the suite of UW School of Nursing DEI webpages and Intranet Sharepoint DEI site .

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11 Suggested Actions Towards Anti-Racism

Being an ally requires being an anti-racist:, 11 suggested actions toward anti-racism in the office and on your own.

Written by the UC Davis Office of the Vice Chancellor for Diversity, Equity and Inclusion; based on the Office of Health Equity, Diversity and Inclusion’s Anti-Racism and DEI Action Plan . Contributions made by UC Davis Constituent Groups : African American Faculty and Staff Association, Asian Pacific American Systemwide Alliance, Chancellor’s Committee on Lesbian, Gay, Bisexual, Transgender Queer, Intersex, and Asexual Issues, Latinx Staff and Faculty Association, Native American Faculty and Staff Association, and the Veteran Constituency Group. “Being an Ally Requires Being an Anti-Racist” is a phrase from an open letter , written by Valencia G. Scott, that was published on the DEI website on May 30, 2020. You can download a PDF version of this page here .

1. ADDRESS STRUCTURAL RACISM AND INEQUITIES INTERNALLY

Diversify your department to reflect that of the local community and California. Diversifying a unit is necessary for creating equity across departments, but this alone is not sufficient. Adopt best practices for representation and inclusion offered in the UCOP Implicit Bias Series . For more information on why having diverse teams is important, see Mannix and Neale, “What Differences Make a Difference?” (2005).

Use Holistic Review for recruitment. For faculty recruitment tools, visit Strength through Equity and Diversity (STEAD) ; for graduate student recruitment tools, visit The AMIGA Project ; for staff recruitment tools, visit UC Davis Human Resources . Additional information on holistic reviews and their effectiveness, see Artinian, Drees, Glazer, Harris, Kaufman, Lopez, and Michaels, “Holistic Admissions in the Health Professions” (2017).

Participate in a 21-day anti-racism challenge as a department. Here are three challenges to choose from:

Racial Equity Habit Building Challenge
Racial Equity Protest and Rebellion Challenge
MooreSelfCare Challenge

Ask your DEI task force (recommended below) to develop a DEI strategic plan with accountability measures, aligned with the organization’s DEI Strategic Plan. For examples, please see UC Davis’ Diversity & Inclusion Strategic Vision and campus-wide strategic plan, “ To Boldly Go .”

Empower your DEI advisory committee and leadership to define other needs and strategies and ensure that the implementation is shared by the entire department.

Become involved in the various Chancellor’s Advisory Committees and Constituent Groups that work to expand diversity, equity and inclusion excellence.

2. CREATE OR EXPAND ANTI-RACISM AND OTHER TOPICS PROMOTING DIVERSITY AND INCLUSION AS PART OF PROFESSIONAL DEVELOPMENT AND COMMUNITY BUILDING EFFORTS

Initiate a Diversity, Equity, and Inclusion lecture and discussion series and make it available to your organization and general community members. Some examples include:

Coping as a Community Webinar Series : Interviews with experts on coping and healing from a diversity, equity, and anti-racism perspective.

Racial Healing Circles : Dialogue with others in a setting that centers safety and the healing process.

Campus Community Book Project (CCBP): Attend events and participate in book discussions (i.e. Interprofessional Book Club discussions). Sponsor events in support of the CCBP.

UCOP Managing Implicit Bias Online Series : For more information on the importance of understanding our internal bias and its effects, see Uhlmann and Cohen, “I think it, therefore it’s true (2007).

Diversity Courses offered by the main campus Office of Diversity Equity and Inclusion and AB 540 & Undocumented Student Center’s UndocuAlly Program for Educators .

Provide educational seminars/workshops for all organization members devoted to anti-racism and other DEI topics, in support of community building. For more information about how organizations can support black employees and its workforce around bias, racism and inclusivity, see Carter, “Restructure Your Organization to Actually Advance Racial Justice” (2020).

Provide in-depth training/education and connect training as a part of individual development plan to all organization members. The UC Davis Diversity & Inclusion Education and Training unit offers workshops, trainings, presentations, courses, seminars and other educational initiatives that enhance our understanding of and appreciation for the diversity that makes up our campus community. For more information on the importance of community building, visit the National Museum of African American History & Culture Smithsonian Resources .

Avoid asking the same people within your organization . Ensure opportunities for diverse members to participate and recognize/incentivize participation, i.e. connect to annual performance review supporting the Principles of Community. It is not reasonable for the few underrepresented members to give workshops to every department or the same individuals to always deliver the workshop.

Allocate time for your faculty and staff to participate in learning opportunities. If there are limitations in attending events, bring the training/speaker to your department to mitigate barriers for participation.

Schedule a retreat that is dedicated or themed to supporting educational excellence in diversity, equity and inclusion.

Leaders: learn and model participation by attending DEI events as well—this sends a strong message of support of DEI initiatives and enhances DEI-informed decision-making and initiatives.

3. RECRUIT-DEVELOP-EMPOWER LEADERS

Support positions dedicated to Diversity, Equity, and Inclusion. These positions can lead DEI initiatives in support of implementing the UC Davis Diversity and Inclusion Strategic Vision . For additional resources, visit recruitment tools at UC Davis Human Resources ’s page .

Establish a Diversity, Equity, and Inclusion task force or working group that is supported by and partners with department/organization leadership. Include faculty or experts from ethnic studies departments, while also being mindful of their workloads. Time and resources should be provided to engage in this work. For more information on task forces, see the UC Davis Hispanic Serving Institution Task Force and Next Generation Reforms to Advance Campus Safety Task Force .

4. ADDRESS STRUCTURAL RACISM AND INEQUITIES EXTERNALLY ( ADDRESSING STRUCTURAL RACISM AND INEQUITIES MUST ALSO TAKE PLACE OUTSIDE OF OUR WORKPLACES FOR REAL CHANGE TO BE EFFECTIVE)

Focus on your organization’s role and partnerships in your community and in the field of higher education. Leverage your community and public presence to improve awareness of the serious impact of racism, violence, food insecurity, and poverty.

Work as part of an Anchor Institution Coalition that involves Aggie Square, Sacramento State University, Los Rios Community College, Office of Government Relations, Office of Campus Community Relations, local government, and others to synergize and amplify your impact.

Work with the Procurement Office to increase local purchasing of goods from women, and minority-owned businesses. For more information about the effectiveness of supporting local diverse buesinesses, see Herring, “Does Diversity Pay?” (2009).

Participate in a sponsorship committee to support sponsorship of local community organizations and businesses that are vital to underserved communities. Sponsorship requests are reviewed quarterly by members of the multi-departmental Sponsorship Committee.

Develop a system to track resources flowing into your local community and the hiring and promotion of a local workforce.

Leverage your training and development resources to support local training needs of women or minority-owned businesses and community organizations. For example, providing cultural competence training sessions. For more some specific examples which could be applied more broadly, Hoffman and Stallworth, “Leveling the Playing Field,” (2008).

Create a Community Advisory Board of members from surrounding communities who are representative of their neighborhoods with a focus on historically underrepresented residents.

Collaborate with organizational leadership and members involved in community engagement to inform community engagement efforts. For further information or opportunities, visit the Office of Public Scholarship and Engagement .

Bringing on diverse and local communities can improve the understanding of the local community needs. Prioritize diversity and local community experience in the hiring process.

Work with diverse local vendors for events, conferences, etc. where possible. This can include purchasing art and signage from diverse local vendors – purchasing from diverse local vendors can have benefits with improving the inclusiveness of your work environment.

Participate and support local community sponsored events , particularly where your presence brings greater awareness to the impact of racism and other social inequities on your area of work.

Support and organize volunteerism in free initiatives and other community efforts that support diverse and underserved communities.

Support community-based participatory and other models of community engaged research (see Action 6. Research Best Practices for additional information).

5. EDUCATE YOURSELF AND REFLECT

Educate yourself on racial injustice and related issues. Additional resources are available through the Office of Diversity, Equity and Inclusion and the Association of American Medical Colleges . For more information on why we need to educate ourselves and how to do so, see Lamont, “Guide to Allyship” (2020).

Continue to reflect on your privilege, power, and identity . Give fearless attention to the history of racism, to contexts where race continues to be used as a wedge issue, and to good examples of aspiring ally-ship, advocacy, or solidarity between your community and historically marginalized communities. For more information on the importance of reflecting on privilege, understanding internal bias and good allyship, see McIntosh, “White Privilege: Unpacking the Invisible Knapsack” (1990).

Interrupt acts of bias in the workplace . Becoming an ally requires action and it is important to practice how we constructively stop acts of bias/hate, such as intervening, delegating and distracting and learning the four basic levels of becoming an ally . See also UC Davis’ Human Resource page, Working together to support a diverse workforce .

Familiarize yourself with the resources available to you in support of your learning. This includes the Vice Chancellor’s Office for Diversity, Equity and Inclusion and Student Community Centers .

Report incidents of hate/bias to Report Hate and Bias and to Harassment and Discrimination Assistance and Prevention Program .

6. RESEARCH BEST PRACTICES

Adopt the Principles of Community Engagement in your research projects (NIH 2011, Principles of Community Engagement 2nd edition ). As stated in pages 58-62:

Before starting a community engagement effort …

Be clear about the purposes or goals of the engagement effort and the populations and/or communities you want to engage.

Become knowledgeable about the community’s culture, economic conditions, social networks, political and power structures, norms and values, demographic trends, history, and experience with efforts by outside groups to engage it in various programs. Learn about the community’s perceptions of those initiating the engagement activities.

For engagement to occur, we recommend you to…

Go to the community, establish relationships, build trust, work with the formal and informal leadership, and seek commitment from community organizations and leaders to create processes for mobilizing the community.

Remember and accept that collective self-determination is the responsibility and right of all people in a community. No external entity should assume it can bestow on a community the power to act in its own self-interest.

For engagement to succeed…

Partnering with the community is necessary to create change and improve health.

All aspects of community engagement must recognize and respect the diversity of the community. Awareness of the various cultures of a community and other factors affecting diversity must be paramount in planning, designing, and implementing approaches to engaging a community.

Community engagement can only be sustained by identifying and mobilizing community assets and strengths and by developing the community’s capacity and resources to make decisions and take action.

Organizations that wish to engage a community as well as individuals seeking to effect change must be prepared to release control of actions or interventions to the community and be flexible enough to meet its changing needs.

Community collaboration requires long-term commitment by the engaging organization and its partners.

Build partnerships with diverse community stakeholders and maintain it over time . Tools such as Mercer, Green et al, “Reliability-Tested Guidelines for Assessing Participatory Research Projects” (2008) can help periodically assess the functioning of these partnerships.

Use Asset Identification , which identifies community assets and strengths, to build on community, academic, and other partner’s strengths in studying and addressing shared concerns.

Use approaches and processes that reflect local community culture and ways of doing things . These include considerations such as who are the local (informal) leaders? Where do people gather? What places or organizations hold special meaning for community members and are therefore good potential “homes” for research processes.

Register to vote and encourage others to do the same. Systemic changes that address racial injustice and social inequity starts in the voting booth. People who are incarcerated, on parole, with felony conviction histories, or undocumented are unable to vote. Therefore, it is of utmost importance that people who have the privilege to vote do so. The elected officials who matter most in reforming police departments and the criminal justice system usually work at the state and local levels, so be sure to vote for elected officials who stand for the changes you want to see.

For voter registration information, visit https://www.usa.gov/voter-registration

For local or state election information, visit https://www.usa.gov/election-office

For California voting information, visit https://www.sos.ca.gov/elections/ .

Information on voting by mail can be found at https://www.sos.ca.gov/elections/voter-registration/vote-mail/vbm-other-elections/#apply

§ COVID-19 Update On May 8, 2020, Governor Gavin Newsom issued Executive Order N-64-20 , which, among other things, orders the November 3, 2020 , General Election (Presidential Election) to be conducted as an all-mail ballot election. Accordingly, all registered voters in California will receive a vote-by-mail ballot in the mail prior to the election.

8. SPREAD THE WORD AND DONATE, FUNDRAISE, OR CREATE EVENTS

Fundraise online, donate business proceeds or create events for organizations that work on police violence, police accountability, and against the criminalization of black communities. (See the organizations below which need support)

Spread the word on protests, actions, events, and demands through social media, text, email, phone and in-person. For suggestions from UC Davis Constituent Groups on some organizations and ways to plug in and share information, visit the Office of the Vice Chancellor for Diversity, Equity, and Inclusion website .

9. SUPPORT BUSINESSES

Purchase from businesses owned by people of color. By purchasing and investing locally, partnering with local businesses, we can help to generate wealth that stays and grows within those communities and also help offset the history of systemic financial inequities. You can find businesses owned by people of color in your area by conducting an internet search. For example, here is a list of Sacramento black-owned businesses and a list of Sacramento black-owned restaurants .

10. SUPPORT EVENTS AND MEETINGS

Support or organize healing justice events . Create space to facilitate these practices with others. For more information on coping mechanisms and how healing justive events help, see the visit the Black Lives Matter “ Healing in Action ” toolkit and websites of the below organizations for additional resources.

These local organizations offering support and healing circles:

Black Lives Matter Sacramento
NAACP Sacramento
Hollaback - Anti-harassment Training
Anti Police-Terror Project
Showing up for Racial Justice, California chapters
Coming to the Table
Compassionate Sacramento
Sacramento Black Community Healing Circles
Roberts Family Development Center
Black Child Legacy Campaign

Attend planning meetings or strategy calls for anti-police violence and anti-criminalization organizations. Resources for preventing and addressing police abuse can be found at the Office of the Vice Chancellor for Diversity, Equity, and Inclusion website .

11. ENGAGE IN DISCUSSION

Engage in discussions around race, social injustice and reform with people, even those who disagree with you . Have discussions with family and friends. Get curious, ask questions and avoid judgement. For guidance, visit: Start Conversations: Beginners Guide To Confronting Implicit Bias .

Encourage your place of work , and companies that you are a customer of, to take anti-racist actions, as outlined in the section above.

Play a leadership role in bringing educational opportunities that promote DEI to your organization, including anti-racism education.

Artinian, N. T., Drees, B. M., Glazer, G., Harris, K., Kaufman, L. S., Lopez, N., . . . Michaels, J. (2017, June 12). Holistic Admissions in the Health Professions: Strategies for Leaders. Retrieved September 03, 2020, from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5708588/ .

Summary: Colleges and universities are seeking strategies that will help them increase diversity in the student populations and, consequently, future professionals. This article briefly discusses how using holistic review and admission processes can help – and has helped - achieve diversity goals, improving educational environment, increased engagement, cooperation, teamwork, and openness to perspectives different to their own.

Carter, E. (2020, June 22). Restructure Your Organization to Actually Advance Racial Justice. Retrieved September 04, 2020, from https://hbr.org/2020/06/restructure-your-organization-to-actually-advance-racial-justice .

Summary: Carter recognizes that the U.S. is at a turning point in which the scale of recognition of systematic racism and allyship is different – to the point organizations want to support black employees as well as upskill the workforce around bias, racism and inclusivity. Carter explains that real commitment should include three things: 1) Invest in the right employee education about realities and inequities, awareness and accountability. 2) Build connection and community to promote sense of belonging and prevent harm by “othering” of black employees. 3) Go beyond recruiting/hiring and evaluate where racial disparities are as well as focusing on helping employees grow into leadership positions.

Community Building. (2020, July 20). Retrieved September 04, 2020, from https://nmaahc.si.edu/learn/talking-about-race/topics/community-building .

Summary: This article describes community building as central to conversations about identity and equity since it allows others to share anti-racist work and share our social identities and experiences. By doing this, we can purposefully create a community with a shared goal that can deepen relationships, promote belonging, and provide support and wellbeing to members. It also provides a list of suggested guidelines on creating community agreements, ground rules, safe spaces and multiple videos from PBS and Ted Talks.

Healing in Action: A toolkit for Black Lives Matter Healing Justice & Direct Action. (n.d.). Retrieved September 04, 2020, from https://blacklivesmatter.com/wp-content/uploads/2018/01/BLM_HealingAction_r1.pdf .

Summary: As more people engage in direct action towards change and the current political air requires the doubling of efforts, there is a need to create a space to fortify the energy used, analyze and process trauma, build resilience, and take care of each other. This package provides a list of healing practices that can be done individually or in a group to help deal with the emotional, psychological and spiritual aspects prior, during, and after actions.

Herring, C. (2009). Does Diversity Pay?: Race, Gender, and the Business Case for Diversity. American Sociological Review, 74 (2), 208-224. doi:10.1177/000312240907400203.

Summary: In this article, Herrings claims that a diverse workforce is generally beneficial for businesses compared to prior ideas that diversity can be nonconsequential or detrimental. It discusses the value of diversity, and provides multiple hypothesis as well as a full explanation of the quantitative approach to his conclusion.

Hoffman, D. A., & Stallworth, L. E. (2008). Leveling the Playing Field for Workplace Neutrals: A Proposal for Achieving Racial and Ethnic Diversity. Dispute Resolution Journal, 63 (1), 36-46.

Summary: This article is very specific to dispute resolution in union or non-union workplace disputes. The authors admit that there conscious and unconscious forms of racial/ethnic bias that resulted in less minority neutrals in workplace disputes. However, they also offer a series of solutions that may also be applicable to other workspaces such as educating staff in conscious and unconscious bias, developing a system of accountability and creating national/regional panels of minority neutrals to increase availability, visibility, acceptance.

Lamont, A. (n.d.). Guide to Allyship. Retrieved September 04, 2020, from https://guidetoallyship.com/ .

Summary: This short guide provides a series of starting points to become a better ally in many different aspects including regarding racism, transphobia, gender driscrimination, and more. It includes an explanation on what is an ally, why are they necessary, a list of do’s and don’ts, how to handle mistakes and even the option to contribute to help improve the guide.

Mannix, E., & Neale, M. A. (2005). What Differences Make a Difference?: The Promise and Reality of Diverse Teams in Organizations. Psychological Science in the Public Interest, 31-55.

Summary: In this article, both Mannix and Neale discuss and clarify the mixed effects of diversity in workgroups, and focus on the benefits of exploring bridging diversity through values, goals, and enhancing the power of minority. They also include suggestions for how organizations can learn to create incentives for change.

McIntosh, P. (1990). White Privilege: Unpacking the Invisible Knapsack. Retrieved September 04, 2020, from https://www.racialequitytools.org/resourcefiles/mcintosh.pdf .

Summary: This essay is an excerpt from Working Paper 189. "White Privilege and Male Privilege: A Personal Account of Coming To See Correspondences through Work in Women's Studies" (1988) by Peggy McIntosh. This excerpted essay is reprinted from the Winter 1990 issue of Independent School. In this excerpt, McIntosh discusses the unacknowledged male privilege as a phenomenon and how white privilege is similar, and her own reflection. It provides a list of daily effects of white privilege that often go unknown unless thought of or mentioned.

New Study Finds Holistic Admissions Diversifies Health Pro Schools. (n.d.). Retrieved September 03, 2020, from https://www.nimhd.nih.gov/news-events/features/training-workforce-dev/holistic-admissions.html .

Summary: In this article, the NIMHD discusses the effectiveness and positive impact on diversity, student success and academics after holistic admissions process. Although mostly focusing on medical, dental, pharmacy, nursing, and public health schools, it discusses the increase in diversity in race, ethnicity, gender, experience, socioeconomic status and perspective, community engagement and openness.

Uhlmann, E. L., & Cohen, G. L. (2007). “I think it, therefore it’s true”: Effects of self-perceived objectivity on hiring discrimination. Organizational Behavior and Human Decision Processes, 104 (2), 207-223. doi:10.1016/j.obhdp.2007.07.001.

Summary: This article covers the idea of bias –how people assume own beliefs are valid and therefore worthy of being acted on and how it increased gender discrimination among decision makers who endorse stereotypic beliefs or thoughts. It also discusses how this psychological licensing that explains the persistence of discrimination in organizations despite personal or institutional pressures.

Young people of various races pose for a photo

FIGHT Racism

75 years after the adoption of the Universal Declaration of Human Rights , the urgency of combatting racism and racial discrimination remains.

Every day, each and every one of us can stand up against racial prejudice and disrespectful attitudes. Let’s build a world beyond racism and discrimination, where we all exercise our human rights.

Be a human rights champion! Join us in fighting racism!

Wherever we see racism, we must condemn it without reservation, without hesitation, without qualification.” ANTÓNIO GUTERRES , United Nations Secretary-General

Why fight racism?

How can we do it, who is vulnerable.

In 1965, the international community adopted a convention by which they committed to eliminate all forms of racial discrimination. The Convention is now nearing universal ratification. Yet still, all around the world too many suffer from the injustice and stigma that racism brings.

No country can claim to be free of racism, racism is a global concern, and tackling it requires a universal effort. — Durban Declaration and Programme of Action (DDPA)

Sustainable Development Goals

The SDGs were adopted by all UN Member States. See how anti-discrimination helps support the 2030 Agenda for Sustainable Development .

What do you know?

Racial discrimination can happen on the basis of....

National origin
Ethnic origin
All of the above

Test your knowledge

photo to test your visual intrinsic bias

What do you see?

Taxi driver
Human rights activist

Check your bias

speech bubble with no to hate speech written inside

#NoToHate campaign – fighting hate speech

Join the global movement to combat the rising tide of xenophobia, racism, and intolerance with the #NoToHate campaign, an initiative that aims to counter hate speech and safeguard human rights. In 2021, Member States declared 18 June as the International Day for Countering Hate Speech. Read the UN Strategy and Plan of Action on Hate Speech .

Learn more at un.org/hate-speech

The event is held to recognize the significant role of higher education and academics in the global efforts to promote human dignity and inclusion in times when dissemination of hatred is alarming and rising.

A Revealing Look at our Past

The Slavery Remembrance Exhibition from Amsterdam’s renowned Rijksmuseum is on display at United Nations Headquarters. Opened in February 2023, “Slavery: Ten True Stories of Dutch Colonial Slavery” is a joint initiative from the UN's Outreach Programme on the Transatlantic Slave Trade and Slavery and the Permanent Mission of the Kingdom of the Netherlands to the United Nations, in partnership with the Rijksmuseum, Amsterdam’s national museum of art and history.

Credits and details

Monique stands in an open space with 2 rows of flags behind her

Choosing love and finding power in Blackness

For the past five years, Monique Rodrigues do Prado (a Brazilian lawyer of African descent) has been studying love as a tool for Black emancipation and to imagine a world free from racism and the other legacies of enslavement, the trade in enslaved Africans and colonialism. Her philosophy is inspired by Black feminist authors such as Bell Hooks who, in her seminal book, "All About Love".

Read her story

Ralph Bunche, Amanda Phingbodhipakkiya and Joenia Wapichana

Durban +20 Sketches

UN News shines a light on heroes working to reimagine equality and build a world beyond racism.

Get inspired by their work

A boy holds a rag doll animal a girl holds a paper building

Exhibit: One Day I Will

"These children are like children everywhere – they dream of becoming a teacher, a doctor, a lawyer, an engineer. The difference is that most of them are forcibly displaced and struggling simply to stay safe and survive." UN Deputy Secretary-General, Amina J. Mohamed

View exhibit

United Against Racism and Discrimination

The United Nations Postal Administration issued three mini-sheets of ten stamps each, on the theme “United Against Racism and Discrimination”. The International Day for the Elimination of Racial Discrimination is commemorated on the 21 st of March annually.

View stamps

Rhythm is at the center of humanity. One who knows rhythm knows the world.

KING CLAVE is a "Playing For Change and Planet Drum" global musical performance supported by UNFPA to mark the commemoration of the 20th anniversary of the adoption of the Durban Declaration and Programme of Action. Through the rhythms of this song, hearts are connected and differences disappear, illuminating how deeply humanity is interconnected and revealing the truth of the adage: we are one.

Join us #FightRacism

Is there more than meets the eye?

Check your assumptions. Confront your biases and stereotypes. Open your mind and heart to the humanity in all humans.

Schools & departments

How to stand against racism

Guidance on taking action against racism and racial inequality.

This guide has been inspired and informed by Black voices and writings including those of Amélie Lamont, Mia McKenzie, Kayla Reed and Roxane Gay.

Please do engage with the ‘Understanding Race and Racism’ learning resources provided in the ‘Educate yourself’ section.

Listen to what people of colour are saying. And listen to a range of voices rather than relying on a single story or opinion, such as that of your closest Black friend.

When a person of colour tells you that something is racist, do your very best to listen and hear. When offering support you should centre the conversation on their needs, rather than make a performance out of your allyship. This is not the time to share stories of your own struggles.

You’re going to make mistakes. Be open to feedback and accept criticism as an opportunity for self-growth, understanding, and doing better in the future.

Educate yourself

Take responsibility for your own learning and do your own research. Learn more about the history of the struggle in which you are participating. Be proactive in your education, every day. You should not expect people of colour to educate you or to provide the solutions to the ongoing problem of systemic racism.

A learning resource list to support your understanding of race and racism is available at:

Understanding Race and Racism Learning Resources

Acknowledge and respect difference

Our life experiences are shaped by all aspects of our own identity including our gender, race, sexuality, religion, class etc. To say “I don’t see race/colour” is to deny a fundamental part of an individual’s identity and invalidate the experiences that this identity brings. Instead, acknowledge individual differences and seek to understand the lived experiences of colleagues and students.

Understand that systemic racism and socioeconomic disadvantages have brought greater health risks to people of colour during the current pandemic, and make every effort to follow safe working practices on return to campus.

Understand and use your privilege

Understand that, as a white person, you have a privilege that is not available to people of colour. You may have additional privilege based on other aspects of your identity and/or the position you hold.

Observe the dynamics of power and privilege and notice who does and does not get positive attention, support and resources. Recognise the places and spaces in which your privilege operates, and seek to use your privilege to disrupt power imbalances and create meaningful inclusion.

Understand the importance of giving up some of the advantages your privilege brings, to ensure that opportunities and resources are distributed more equitably.

Amplify the voices of people of colour

Central to allyship is the work of creating space for suppressed voices, and yielding the floor.

Consider how much space you take up in conversations and interactions, and seek to make room for other voices to be heard. Create a safe space for diverse voices to share their experiences and perspectives.

Use your privilege, such as your connections and your platform, to amplify the voices of people of colour and support community projects. Always ensure that you properly credit the labour of those who did the work before you stepped into the picture.

Take action

Black people do not need allies. We need people to stand up and take on the problems borne of oppression as their own, without remove or distance. Author Roxane Gay in her article “On Making Black Lives Matter” .

Seek to progress from being an ally to becoming an effective anti-racist advocate and agent of change.

Talk to others who are engaged in the work of allyship, discuss how you can be better advocates, and identify ways to pool your efforts to maximise their effectiveness. Accept that change may not be immediate, and your advocacy will require ongoing effort and attention.

Volunteer your time, talent and resources to organise and support community projects and events, and to educate colleagues and students on race and racism.

Do the inner work to identify and acknowledge how you participate in racist systems. And do the outer work to participate in changing these racist systems.

Recognise that a process of unlearning is key to your learning. Identify your own ‘in-groups’ and ‘out-groups’ and seek to unlearn your own exclusionary behaviours towards your out-groups. Identify common microaggressions and eliminate them from your words & actions.

Be empowered to intervene when you observe discriminatory or bullying behaviour, or injustice in action. You can find training resources to support you on the Respect at Edinburgh webpages.

This article was published on 2024-03-06

Speech: “We must be united to end racism as well as gender inequality”

Date: Wednesday, 17 June 2020

[As delivered]

Madam President, distinguished delegates,

UN Women believes that women are part of their lived experiences. These experiences impact on who they become, as well as on their families. These experiences may be religious, racial, cultural, or related to sexual orientation.

The Working Group of Experts on People of African Descent have highlighted that girls and women of African Descent are likely to be poorer, to be less educated and to have fewer opportunities everywhere in the world.

We are now seeing an outpouring of solidarity, with people protesting in the streets against systemic and brutal racism.

We need to fight against racism, too, in our own institutions and everywhere in the world; because only if we are united, we will build back together after COVID-19.

In fighting apartheid, it took people of the world also to be in solidarity and to fight together and help to end apartheid.

This time has come again. We must be united to end racism as well as gender inequality in the world.

‘One Woman’ – The UN Women song
UN Under-Secretary-General and UN Women Executive Director Sima Bahous
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Avoice – Congressional Black Caucus Foundation

For Educators: Anti-Apartheid Movement

The Congressional Black Caucus (CBC) played a major role in the dismantling of the apartheid system in South Africa. Representative Ronald V. Dellums (D-CA) introduced the CBC’s first bill concerning apartheid in 1972. Over the next 14 years, CBC members sponsored more than 15 bills concerning apartheid. Members urged the United States government to withdraw financial support from the South African government. The CBC also encouraged American universities and corporations to divest from doing business with South Africa.

Through the use of documents and images provided on the website as well as suggested activities and readings, students will explore the apartheid government in South Africa and African Americans’ response to U.S. Foreign Policies through the legislative actions of the CBC.

Grade Level: 8-12

Essential Question: Using economic sanctions, how effective is the United States government’s influence in changing the practices of foreign governments that violate the human rights of its citizens?

Using documents, images, and articles from the Avoice Web site, students will:

World History

Era 9: The 20th Century Since 1945: Promises and Paradoxes

Standard 2C: The student understands how liberal democracy, market economies, and human rights movements have reshaped political and social life.

Select an activity below to view full activity guidelines:

Activity 1: What is Apartheid?

Activity 2: Where is South Africa?

Activity 3: King and Mandela: Leaders in the Struggle and Resistance to Racial Discrimination

Activity 4: Galvanizing Public Support against Apartheid in South Africa: Economic Sanctions and the Congressional Black Caucus

Activity 5: Sanctions against South Africa

Activity 6: The End of Apartheid

Introductory Essay: The Anti-Apartheid Movement and the Congressional Black Caucus

Apartheid means separateness. Apartheid was a system of legal racial segregation enforced by the South African National Party government between 1948 and 1994. This system created a society of enormous repression for black South Africans.

These policies of racial separation began long before 1948. In 1910, a series of laws were introduced to limit the rights of the black majority. Laws like the Mines and Works Act of 1911, limited the kind of jobs that black workers could have, reducing them to exclusively doing menial work, while securing the better job opportunities for white workers. Laws were also introduced to restrict land ownership and use by the black majority. The Native Land Act of 1913 set aside less than 10% of South African territory as reservations for black people and barred them from buying land outside these areas.

Policies like these also limited the political influence of black South Africans by depriving them of the right to vote or to protest unfair labor practices. Despite these political, economic, and social challenges, groups like the African National Congress (ANC) formed to stage resistance and liberation movements to free black South Africans from these atrocities. The conflicts intensified and, out of fear, white South Africans rallied great support behind the National Party to win the 1948 election in South Africa, thus ensuring the opportunity to put into place an even greater repressive government against the majority black population.

The National Party immediately passed a series of new laws that established the separation of races and suppressed political dissent. In 1950, the Population Registration Act was created to establish racial classifications based on skin color and ethnic backgrounds. Discriminatory laws were also established to hinder the voting process, target black businesses and property owners, as well as continue removing and resettling black South Africans on reservations. The labor bureau and trade unions also discriminated against black workers and thus weakened the urban African working class.

The anti-apartheid movement was spearheaded by the black community in the United States. As leaders of this community, the Congressional Black Caucus (CBC) was instrumental in organizing and supporting activities that brought national and global attention to the racist and inhumane treatment of blacks in South Africa. The CBC’s efforts to raise awareness about South Africa’s apartheid system ultimately led to the passage of the Comprehensive Anti-Apartheid Act of 1986.

Representative Ronald V. Dellums (D-CA) introduced the CBC’s first bill concerning apartheid in 1972. Over the next 14 years, CBC members sponsored more than 15 bills concerning apartheid. Members sponsored hearings, organized rallies, and participated in protests in Washington D.C., as well as in their home districts. Their efforts, in conjunction with the efforts of community activists, students and other organizations, brought widespread attention to the racist and inhumane treatment of blacks in South Africa.

Prior to 1986, CBC members, along with students and other community activists, brought widespread attention to South Africa through a number of rallies and protests in Washington, D.C. and their home districts. The CBC was also involved in the establishment of TransAfrica in 1977. TransAfrica is a foreign policy advocacy organization designed to increase awareness of issues concerning Africa and the Caribbean. TransAfrica, with the support of the CBC and several other grassroots organizations, led the movement to dissociate from South Africa. As a result of these efforts, scores of universities and businesses withdrew investment dollars from South Africa.

In 1984, in the face of escalating violence and repression in South Africa and the refusal of the Reagan administration to take measures against the Botha regime, a group of Washington-based anti-apartheid and civil rights leaders launched the Free South Africa Movement. Randall Robinson, then director of TransAfrica, along with Mary Frances Berry, U.S. Delegate and CBC Member Walter Fauntroy, and Eleanor Holmes Norton, arranged a meeting with the South African ambassador. During that meeting, Norton left to call the media to announce that the other three would not leave the embassy until their demands—that the South African government release all political prisoners immediately and dismantle apartheid—were met. The media and supporters were there to capture the removal of Robinson, Fauntroy, and Berry in handcuffs, and the daily protests outside the embassy began. The protests spread from the embassy in Washington, D.C., to South African consulates and other symbols of the South African government around the United States. Over the next two years, at least 6,000 people would be arrested at embassy and consulate protests including major figures from the civil rights movement, members of Congress and other political figures, and many artists and entertainers.

Additional recommended readings for teachers and students:

Downing, David. Apartheid in South Africa (Witness to History). Heinemann: Chicago, 2004. (Non-Fiction)

Connolly, Sean. Apartheid in South Africa (Troubled World). Heinemann Library: Chicago, 2001. (Non-Fiction)

Activity 1: What is Apartheid?

Documents Needed:

Materials Needed:

Teacher Tip

Share with the students the introductory essay about what apartheid is and the role that the Congressional Black Caucus played in changing this practice in South Africa. This can be an in-class reading or an assignment to be discussed in the next class session.

Discussion and Chart Making: Encourage the students to make a large chart listing the key elements of the South African apartheid government and identify which portion of the population was most affected by it. Display the chart in the classroom for reference during other activities recommended in this lesson.

To connect the students to stories or narratives of real people who experienced South Africa’s apartheid first-hand, this activity highlights South African youths’ efforts to end unfair educational practices in their schools. The South African Student Movement’s march on Soweto was the beginning of the anti-apartheid movement.

Divide the students into small groups of 3-4 students. Distribute the paper and pencils to each student. Tell the students that they will be doing online research about the South African students’ participation in the Anti-Apartheid Movement for education freedom and civil rights.

Begin the activity by sharing with your students the following excerpt from the Guardian, a British newspaper about the children of Soweto’s protesting for their right to learn in their native language. Write the quote on a large sheet of easel paper and it place on the wall for the students to read.

“On the morning of June 16, 1976, a crowd of 10,000 black students gathered in the South African township of Soweto. They were demonstrating against a decree from the apartheid government that all pupils must learn Afrikaans in school. The protest was peaceful, but police opened fire, and at least 566 people were killed in the events that followed. The massacre brought the brutality of the racist regime to the attention of the world – and, some say, marked the beginning of the end for apartheid.”

After reading the quote with your students, tell them they are going to review a web source that will provide them additional information about the student march in Soweto. Direct them to view the South African History Online page on the Soweto Uprising, June 16, 1976, for detailed, day-by-day information about what happened during the uprising. With their team members they will review the web site listed below and gather additional facts about the massacre. Have each team prepare a one page report about the incident by responding to the following questions:

Guiding questions for the students’ research:

Allow the students time to complete their research. Conclude the activity with each team presenting a fact or information they learned about the protest.

Role Playing/Writing : End this activity by having your students pretend they have traveled to South Africa in 1976 to interview the children who helped to bring change in Soweto. The students can present their information as a news anchor on the Nightly News or CNN or be a news reporter for a newspaper and prepare a headline news article.

To start their research, share with the students the following questions, in addition to a copy of the Congressional Record of House Joint Resolution 317, Soweto Remembrance Day Resolution:

This activity is designed to compliment your study about the Civil Rights Movement in the United States and other Human Rights Movements throughout the world. In 1963, more than 1000 students gathered to march in Birmingham for civil rights in one of the most racially divided cities in the U.S. To supplement the number of volunteer adults, organizers recruited children for what became known as the Children’s Crusade. Children who participated ranged from 6 to 18. In an attempt to curtail the demonstration, the Birmingham Police Department used high pressure water hoses and police dogs on the children and bystanders. Media coverage of this event increased national attention on racial segregation in the South.

Screen the following movies for a comparative look at the struggles of black children in the U.S. and in South Africa for freedom and civil rights. The movies may be obtained through Netflix and Blockbuster Films. As a culminating activity, provide your students with large sheets of easel pad paper and have the students create “compare and contrast” charts of the protests highlighting what actions brought attention to the children’s struggles and the ultimate achievement of freedom and civil rights for all.

Mighty Times: The Children’s March (2004) (40 minutes). HBO Production. This film highlights the May 2, 1963 Children’s March in Birmingham Alabama.

Sarafina (1992) (117 minutes). Buena Vista Home Entertainment. This film tells the story about the struggle of South African school children for survival and freedom against apartheid.

Activity 2: Where is South Africa?

Distribute copies of the map of the continent of Africa and a map of South Africa to each student. With the students, identify where South Africa is located on the continent of Africa. Next, look at the map of South Africa. Ask the students to name what cities, regions, geographic elements like oceans, rivers, etc. and neighboring countries that they see on the map.

Following the map study activity, arrange the students in small groups and share with them the brochures and other travel information you could gather about South Africa. Assign each group a fact to research using the brochures or the Internet. For example:

Students can organize their findings with the research organizer worksheet. Encourage the students to use the Internet for additional information. Sources for student research:

Compare and Contrast: After the students have completed their fact finding of South Africa today, ask them to compare the country’s social, political and economic status of today versus what it was like from 1960 to 1994. South Africa History Online is a rich resource of information to support the students’ comparative study. Direct the students to focus on the Politics and Governance page. It features information about South Africa political events, legislation, freedom movements, the people, and timelines of events that occurred from the 1920s to 1994.

Poster and Oral Presentation: South Africa Past and Present: Provide poster board, glue and scissors for each group. Ask the students to create a poster display illustrating the results of their research. Encourage them to use the travel brochures and images from the Web to create a poster display. Following the completion of their research, invite each team to give an oral presentation about what they have learned and share their poster display.

Activity 3: King and Mandela: Leaders in the Struggle and Resistance to Racial Discrimination

Compare and Contrast Reading Activity: Read with your students, the excerpts from the autobiographies of King and Mandela.

Following the readings, distribute to each student a copy of the worksheet. Using the worksheet as a guide, ask the students to list comparisons of Blacks’ struggles and resistance to racial discrimination in South Africa and the United States.

Group Discussion Question: Nelson Mandela used his time in prison to imagine what life could be like in South Africa after apartheid had been abolished. He envisioned a peaceful, egalitarian society and reconciliation between the races. Ask the students to consider the extent to which Mandela’s vision in South Africa and King’s vision in the United States exist today?

In 1992, Mandela was honored with a Nobel Peace Prize. Ask the students to do a reenactment of Mr. Mandela receiving the Nobel Peace Prize. Their task is to prepare a speech to introduce Mr. Mandela by not only telling the story of his life, but also why he deserves such an honor.

Allow the students to be creative in their presentation using PowerPoint presentations, Spoken Word and poetry, storytelling or through song and music. Share with the students the following web sites for reference in preparing their presentations.

Activity 4: Galvanizing Public Support against Apartheid in South Africa: Economic Sanctions and the Congressional Black Caucus

Print out the Avoice Virtual Library Anti-Apartheid Legislation page and provide a copy of the web page and the other documents for each student. Allow the students time to review the copies. To focus their study of the documents, share with them a copy of the Photograph and Document Analysis Worksheets (pdf) from the National Archives.

Discussion: After the students have reviewed the documents, lead them in a whole class discussion about bans and conditions discussed in the resolution and Mr. Gray’s speech before the House of Representatives. Ask the students the following questions:

Assign a student to record remarks on easel pad sheets to be posted in the classroom.

Creative Writing: Return the students’ attention to the images. Ask them to review the images again, but for this exercise have them to write a short story about what is happening in one of the images. Encourage the students to incorporate facts learned during classroom discussions.

Activity 5: Sanctions against South Africa

Divide students into smaller groups. Give each group one of the documents and a worksheet. Allow the students time to read and record what they learn about the document and the information it provides.

Debate and Persuasive Writing: Ask the students to prepare an opinion editorial (op-ed) expressing their views on economic sanctions. Explain to the students that American citizens disagreed on the morality and effectiveness of economic sanctions against South Africa’s apartheid government. Based on what they learned from the documents, ask the students to consider what bans and/or sanctions could cause concern and why? (i.e. investment firms, banks, manufacturing companies, etc.).

For those students interested in current political issues about international sanctions, have them create a flyer seeking support to impose sanctions. Encourage them to incorporate images and drawings to illustrate their demands. Invite the students to present their flyer to the class and create a classroom display of the flyers.

Activity 6: The End of Apartheid

Discussion Questions and Research: To determine if the end of apartheid proved to be beneficial for the people of South Africa, explore with the students current events about daily life in this post-apartheid society. What are the visions of the country’s leadership? How stable is the economy? If it is strong, who is benefiting from it? Did the health and housing issues improve for most people? Do black children have greater access to education? How is apartheid’s effect still being felt today in South Africa?

To answer these questions and more, ask the students to read their local newspapers and online newspapers like the:

Debate: Based on their research, encourage the students to present evidence to support their opinion on whether ending apartheid was good or not good for the country and global relations.

Discussion Question: What countries does the United States government currently maintain economic sanctions against (Iran, Libya, Cuba, North Korea, Burma, Angola, etc.)? To respond to this question, encourage the students to visit the library or search the Internet to find the rules and effect of sanctions on these countries. For information, go to the Office of Foreign Assets, Department of the Treasury and Amnesty International’s Human Rights websites.

Activist: an especially active, vigorous advocate of a cause, i.e. political cause.

Apartheid: a social policy or racial segregation involving political and economic and legal discrimination against people who are not white; the former official policy in South Africa.

Civil Rights: related to a political movement, especially during the 1950s and 1960s, devoted to securing equal opportunity and treatment for members of minority groups.

Conflict: an open fight, battle, or struggle between two opposing groups.

Human Rights: the basic rights and freedoms to which all humans are entitled. Often held to include the right to life and liberty, freedom of thought and expression, and equality before the law.

Oppression: the practice of authority or power in a burdensome, cruel, or unjust manner.

Protest: to publicly display opposition to something.

Sanctions: a coercive measure adopted usually by a nation or several nations acting together against a nation violating human rights or international law.

Unit Resources

Visit the Avoice exhibit on the Anti-Apartheid Movement .

Anti-Apartheid Movement Timeline

Clark, Nancy L. South Africa: The Rise and Fall of Apartheid. Pearson Education Publishing: Upper Saddle River, NJ, 2004.

Connolly, Sean. Apartheid in South Africa (Troubled World). Heinemann: Chicago, 2001.

Downing, David. Apartheid in South Africa (Witness to History). Heinemann: Chicago, 2004.

Mandela, Nelson. Long Walk to Freedom: The Autobiography of Nelson Mandela. Little, Brown, and Company: Boston, MA, 1995.

Martin, Michael J. Apartheid in South Africa. Gale Publishing: Florence, KY, 2006.

Mathabane, Mark. Kaffir Boy: The True Story of a Black Youth’s Coming of Age in Apartheid South Africa. Simon and Schuster Publishing: New York, NY, 1998.

Mayer, Robert. When the Children Marched: The Birmingham Civil Rights Movement. Enslow Publishers: Berkeley Heights, NJ, 2008.

Naidoo, Beverly. Out of Bounds: Seven Stories of Conflict and Hope. HarperCollins Publishers: New York, NY, 2003.

Rochelle, Belinda. Witnesses to Freedom: Young People Who Fought for Civil Rights. Lodestar Books: 1993.

Schermbrucker, Reviva. Lucky Fish. Jacana Media: Johannesburg, South Africa, 2005.

Avoice: African American Voice in Congress http://www.avoiceonline.org

CIA World Fact Book https://www.cia.gov/library/publications/the-world-factbook/

Congressional Black Caucus (CBC) http://www.thecongressionalblackcaucus.com

Congressional Black Caucus Foundation (CBCF) http://www.cbcfinc.org

History of Education in South Africa: Soweto Uprising, June 16, 1976 http://www.sahistory.org.za/pages/governance-projects/june16.htm

South African History Online http://www.sahistory.org.za/pages/index/menu.htm

U.S. State Department – Background Notes http://www.state.gov/r/pa/ei/bgn/index.htm

Mighty Times: The Children’s March. 2004 (40 minutes). HBO Family Movie. This film tells the story of the over 1000 children who in 1963 marched in Birmingham, Alabama, one of the most racially divided cities in the US, for civil rights. The three day protest became known as the Children’s Crusade.

Sarafina. 1992 (117 minutes). Buena Vista Home Entertainment. This film tells the story about the struggle of South African school children for survival and freedom against apartheid.

Acknowledgements

The Anti-Apartheid Movement lesson unit was created through the combined efforts of:

Adrena Ifill, Project Director, Avoice, CBCF Virtual Library Project Alison Kootstra, Project Coordinator, Avoice, CBCF Virtual Library Project R. Maria Marable-Bunch, Education Consultant

This lesson unit was reviewed by the following educators:

Dr. Lynne Long, Professional Development and Curriculum Design, Washington, DC Dianne Moore-Williams, Mentor Teacher, Washington, DC Tanya Brown Merriman, Museum Educator and Assistant Professor, Los Angeles, CA Tracey Mina, Preschool Educator, Brooklyn, NY

This project was made possible by the generous support of the Congressional Black Caucus Foundation, Dell Inc. and The University of Texas at Austin.

Thank you for visiting the Avoice online project. This website is being continuously updated with new exhibits, multimedia, and much more.

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Article Contents

1 introduction: ‘anti-discrimination law’ –  a cure or a disease.

2 The Gay Widower: Tadao Maruko v. Versorgungsanstalt der DeutschenBühnen

3 Unisex Insurance Fees: Test Achats v. Conseil des Ministres

4 outlawing the honourable: hall & preddy v. bull & bull, 5 conclusion.

< Previous

Three Case Studies on ‘Anti-Discrimination’

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Jakob Cornides, Three Case Studies on ‘Anti-Discrimination’, European Journal of International Law , Volume 23, Issue 2, May 2012, Pages 517–542, https://doi.org/10.1093/ejil/chs022

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In recent years, the EU has adopted a series of new directives to promote ‘equality’ and to fight ‘discrimination’. Further measures are planned. But given that they are based on highly abstract concepts leaving wide margins of interpretation, the true meaning and impact of these new laws is difficult to understand in advance. In this article, I analyse three recent cases that give a foretaste of where European legislators, in their quest for more ‘equality’, may be heading.

Rather than at the moment of their adoption, the true impact and meaning of new laws is often better understood when law courts start applying them. This is particularly true of the EU directives that have been adopted to promote ‘equality’ and ‘non-discrimination’, and the legislative measures taken by Member States to transpose and implement them. Indeed, ‘the fight against discrimination’ has become a major agenda point for EU legislation in recent years, which in turn suggests that ‘discrimination’ may be the most pressing problem of contemporary society.

But is this really the case? A Eurobarometer survey on discrimination carried out in 2009 seems to provide supporting evidence: 16 per cent of respondents considered themselves to have been victims of discrimination within the 12 months preceding the survey, and 26 per cent reported they had witnessed someone else being discriminated against. 1 This is an extraordinarily high number of victims in countries where the equality of all before the law has been a fundamental principle of constitutional law for at least a century and where, as far as one can tell, this foundational principle is drawn into question by nobody. But there are some other findings in the survey that are unexpected: for example, the EU Member State with the highest incidence of ‘discrimination’ appears to be Sweden (where 42 per cent of respondents reported to have witnessed ‘discrimination’), followed by Austria (38 per cent), and Denmark  (36 per cent). 2 Being an Austrian myself, I do not want to comment on my own country – but as far as the two Nordic countries are concerned, I always used to believe that they were models of open, tolerant, and socially inclusive societies. How is it then possible that these two countries now turn out to be among those where ‘discrimination’ is most rampant, whereas on the lower end of the scale we find countries like Turkey (where only 18 per cent of respondents claim to have witnessed ‘discrimination’), Romania  (15 per cent), Lithuania (14 per cent), and Croatia (19 per cent). 3 This seems to defy common wisdom: is not Turkey the country where the Kurdish minority is oppressed, where Christians (including, in 2010, a Catholic bishop) are occasionally brutally murdered for no reason other than their faith, 4 where a famous Syrian Orthodox Monastery, which looks back on 1,500 years of uninterrupted existence, faces the risk of being stripped of all its property, 5 and where the Ecumenical Patriarchate has, for more than 30 years, been prevented from re-opening its Seminary 6 where it could train new priests? Is not Romania the country with a huge Roma population living under very precarious social conditions? Is not Croatia the country where ethnic conflicts between Croats and Serbs continue to boil beneath the surface? Is not Lithuania the country that has repeatedly been singled out and pilloried by EU politicians 7 for its (allegedly?) hostile and discriminating policies against homosexuals? And yet the greatest number of self-perceived victims of discrimination is found not in any of these countries, but in Sweden.

It appears thus that – according to Eurobarometer – being a victim of discrimination is not a matter of tangible facts, but of self-perception 8 . This raises some questions both regarding the way in which the issue is nowadays understood by sociologists and regarding the remedies devised by politicians. Could it be that discrimination is most rampant in countries where opinion polls suggest it is not, and that, inversely, in countries where many people believe to have witnessed, or to have been a victim of, discrimination, such widespread sentiment is just the product of government-sponsored ‘awareness-raising’ policies, through which people are educated to look at themselves as ‘victims’ whenever there is an occasion to do so? In other words, could it be that anti-discrimination policies, rather than providing a cure, bring a new illness to society: generalized hypochondria? One feels vaguely reminded of Karl Kraus’ famous jibe on psychoanalysis: it is ‘ jene Geisteskrankheit, für deren Therapie sie sich hält’ , 9 i.e., it is itself the mental disease of which it believes to be the cure. Could not a similar argument be made against anti-discrimination policies?

It seems rather unlikely that Sweden should be the country in the EU with the highest incidence of real discrimination – but it surely appears to be a country where people have very highly developed ‘discrimination awareness’. And we are left to wonder whether further education efforts (e.g., media campaigns, anti-discrimination curricula in schools and universities, etc.) could indeed raise that awareness to 80 or even to 100 per cent – i.e., that all people would finally discover that they are, in some way or other, victims of ‘discrimination’. But in that case, what would such a high level of problem awareness really signify?

As an old saying goes, the truth is in the eyes of the beholder. The inequality and injustice in this world should by no means be trivialized, but on the other hand the problem of ‘discrimination’ to a large extent exists only because it is perceived as such. Many of the discriminations that seem to preoccupy the minds of specialized researchers, advocacy groups and politicians have never been perceived as a problem by the rest of society. And while it could be argued that just as certain diseases can be diagnosed only by specialist doctors, and that diagnosis of the social evil that is called by the name of ‘discrimination’ can be perceived only by those who have been trained to perceive it, the question still remains whether some of the proposed remedies are not worse than the evil they are meant to eradicate.

Assuredly, the word has a negative connotation, and there seems to be nearly universal agreement that ‘discrimination’ should be fought against: hence it is easy to adopt political agendas that identify the fight against ‘discrimination’ as an important priority, or to organize parliamentary majorities to vote in favour of EU directives or national laws that purport to serve that purpose. Yet the traditional precept of justice was not to provide equal treatment to all and everything, but to distinguish : as the Romans said, iustitia est constans et perpetua voluntas ius suum cuique tribuendi . 10 To give everyone his due is definitely different from giving everyone the same . But the concept of ‘discrimination’, as it is enshrined in various EU directives, departs from the perennial concept of justice precisely because it is based on the assumption that justice means nothing other than ‘equality’. According to those directives, ‘discrimination’ occurs when two people are treated differently although they are in a ‘comparable’ situation. 11 But what does ‘comparable’ mean? Even very different things can, with some hope for gain of insight, be compared. Yet it requires not much more than a bit of common sense to see that the mere fact that a comparison may be made between two different situations is not sufficient ground to treat them alike. Moreover, even if an obligation not to discriminate related only to identical (rather than also to merely ‘comparable’) situations, it seems unavoidable that such an obligation, if applied to private persons rather than only to the state, would massively interfere with those persons’ personal freedom: for it is part of that freedom that people are allowed to act arbitrarily, in accordance with their personal preferences or dislikes.

In addition, one cannot help noticing that anti-discrimination legislation tends to be based on highly abstract definitions and principles: it refers to concepts such as ‘direct’ and ‘indirect discrimination’, identifies certain criteria of discernment as ‘suspicious grounds’ (whereas other criteria appear to be less ‘suspicious’, and people and groups identified by such criteria hence receive less protection), and establishes highly unusual reversals of the burden of proof. Even for expert lawyers the practical impact of anti-discrimination laws is thus hardly predictable. Indeed, the only prediction that can be made with great certainty is that they leave a huge margin of interpretation to the judges and public servants who are to apply them, and expose citizens to considerable uncertainty. For the very same reasons, there are strong grounds for doubting whether many of the politicians raising their hands to vote in favour of such laws actually understand the content – not to mention the possible impact – of the measures they are adopting. While it is certainly a gratifying feeling for a politician to have ‘stood up against discrimination’, the practical results from such political action might, if examined more closely, turn out to be far less gratifying.

In this article, I will take a look at a number of cases where new ‘anti-discrimination laws’ have been used by courts at supra-national and national levels with rather surprising results. My purpose is to understand how judges nowadays interpret concepts like ‘equality’ and ‘discrimination’, and how these interpretations seem to depart from a more traditional understanding of justice.

2 The Gay Widower: Tadao Maruko v. Versorgungsanstalt der Deutschen Bühnen

A the facts of the case.

The first of these cases is the Maruko Judgment 12 of the European Court of Justice (ECJ), which was hailed by some as a landmark decision with regard to the equal treatment of homosexuals.

The facts of the case are quickly summarized. The plaintiff, Mr Tadao Maruko, is a homosexual man who, shortly after this possibility was introduced in Germany by a law enacted in 2001, entered into a ‘registered partnership’ with another man who had been employed as a designer of theatrical costumes for more than 40 years and, during that time, had contributed to the compulsory pension scheme of the Versorgungsanstalt der deutschen Bühnen (the German Theatre Pension Institution, the ‘VddB’). When his life partner died in 2005, Mr Maruko demanded the payment of a widower’s pension, as part of the survivor’s benefits provided for under the compulsory occupational pension scheme of which his deceased life partner had been a member. But the VddB scheme provided for the grant of a widower’s pension only in the case of married couples, not in the case of a registered partnership between persons of the same sex. According to Mr Maruko, the VddB’s refusal to grant him survivor’s benefits on the same conditions as a surviving spouse was discrimination on grounds of his sexual orientation. He filed an action with the Bayerisches Verwaltungsgericht München (Bavarian Administrative Court, Munich), which referred the case to the ECJ for a preliminary ruling, asking whether Directive 2000/78/EC obliges Member States to ensure that in cases such as the one at hand the surviving same-sex partner receives a survivor’s benefit equivalent to that granted to a surviving spouse.

B The Court’s Decision

The ECJ ruled in Mr Maruko’s favour, stating that the payment of a widower’s pension under an occupational pension scheme was to be considered a part of the employed person’s salary, and hence fell within the scope of the Directive which forbids discrimination ( inter alia ) on grounds of sexual orientation with regard to employment and employment-related benefits, but explicitly excludes from its scope social security and social protection schemes . Therefore,

the combined provisions of Articles 1 and 2 of Directive 2000/78 preclude legislation such as that at issue in the main proceedings under which, after the death of his life partner, the surviving partner does not receive a survivor’s benefit equivalent to that granted to a surviving spouse, even though, under national law, life partnership places persons of the same sex in a situation comparable to that of spouses so far as concerns that survivor’s benefit. It is for the referring court to determine whether a surviving life partner is in a situation comparable to that of a spouse who is entitled to the survivor’s benefit provided for under the occupational pension scheme managed by the VddB. 13

This was hailed by many as a major breakthrough 14 in the fight against ‘discrimination’, in particular regarding people with a diverse sexual orientation, and it was claimed that no difference in treatment would be admissible any longer.

In May 2011, the Court issued a very similar judgment in the case of Jürgen Römer v.  Freie und Hansestadt Hamburg, 15 with the sole difference that what was claimed in the Römer case was not a widower’s pension, but a higher pension while the registered same-sex partner was still alive. Given the great similarities, I will not discuss the Römer case separately, but limit myself to saying that the comments I make with regard to Maruko are equally valid for the Römer decision, which, once again, was greeted as a ground-breaking victory for lesbian, gay, bisexual, and transgender (LGBT) rights. 16

However, such comments appear to widely overstate the significance of both cases. Upon reading both judgments more carefully, one finds that the ECJ makes a much more cautious assertion: 17 the obligation of Member States to provide for ‘equality’ is made dependent on their own policy choice to ‘place persons of the same sex in a situation comparable to that of spouses’. 18 In other words, only if and where a Member State decides to adopt laws that put same-sex partnerships on a par with marriage must it provide equal treatment. Inversely, if a Member State makes no such decision, the principle of equal treatment does not apply.

This is far from a sweeping statement that Member States must legally recognize same-sex partnerships, or provide a legal framework for them, let alone that they must provide such partnerships with the same social benefits or tax breaks that accrue to married couples. Indeed, the ECJ explicitly acknowledges that ‘the civil status and the benefits flowing therefrom are matters which fall within the competence of the Member States and Community law does not detract from that competence’, 19 and it is difficult to imagine how it could have come to any other conclusion, given that both Article 81(3) of the Treaty on the Functioning of the EU (TFEU) and Recital 22 of Directive 2000/78 itself clearly reserve that competence to the Member States. It was clear from the outset that the Court’s interpretation of Directive 2000/78 could not result in an EU-wide introduction of same-sex marriage.

C Critique of the Decision

But even as it stands, the ECJ’s decision goes farther than it should, and suffers from some apparent flaws.

The first of these flaws is the circularity of the Court’s reasoning: what it says is that if and where a Member State chooses to treat marriages and same-sex partnership equally, it should treat them equally. This statement certainly is as true as it is trite. But the ECJ’s competence is limited to interpreting EU law, and if the obligation to provide equal treatment is derived from national laws rather than from EU law, it should be for national law courts to decide whether or not such an obligation applies in the concrete case. The ECJ has thus overstepped its competence. The right thing to say would have been that an obligation to provide equal treatment could not be derived from the EU Directive and that it was for the German court to determine whether such obligation was to be derived from domestic law.

A second point of criticism follows from the first. The ECJ’s assumption that German legislation ‘places persons of the same sex in a situation comparable to that of spouses’ is evidently mistaken. If it had done so, the dispute at hand would never have arisen. But Mr Maruko’s problem precisely was that the applicable German law, by not granting him an entitlement to a widower’s pension, did not place him and his partner in the same situation as spouses. This must be seen as a part of Germany’s domestic policy in regulating same-sex partnerships, and it was probably a deliberate decision. How, then, is it possible to argue that because Germany ‘places persons of the same sex in a situation comparable to that of spouses’ there must be no difference in treatment? The direct opposite is true: German legislation did not place persons of the same sex on a par with spouses, nor was there any obligation under the EC Directive to do so.

To put all this into simpler words, I could say that, thirdly, the judgment simply suffers from flawed logic. The problem for Mr Maruko was that the applicable German law put him and his partner not in an identical, but only in a ‘comparable’ (viz. similar) situation to that of a married couple. The ECJ judgment thus boils down to something in the sense of: because Germany has decided to treat same-sex partnerships and marriages similarly , the ECJ now demands that it treats them alike . But at the same time the Court has to acknowledge that all Member States are free, if they so choose, to treat these situations very differently, e.g., by granting no legal status at all to same-sex relationships. By which logic, then, can it be licit for Member States to treat marriages and same-sex relationships either equally or differently, but at the same time illicit to treat them with slight differences? And why does it follow from a country’s resolve to treat two different situations similarly that those situations must be treated alike ?

This leads me to my fourth point, which probably is the most important one. Fighting against discrimination means ensuring that like situations are treated alike, and unlike situations differently. This implies that one must first compare the two factual situations in question, and then the rules to which they are subject. But the ECJ’s Maruko judgment simply does not do that. It does not draw any comparison at all between the factual situation of married couples and that of same-sex life partners; instead, it only draws a comparison between the respective legal situations, which are found to be ‘comparable’, albeit not identical. In omitting the required comparison between relevant factual situations, the ECJ has committed a logical error that is known as petitio principii : the proposition that needed to be proven was assumed implicitly or explicitly in the premise. It is affirmed that A and B have been treated unequally in the past and must be treated equally in the future, but there is no argument at all to demonstrate that there actually is any equality between A and B to warrant such equal treatment.

There never was any doubt that there were some differences in the respective legal situations of married couples and same-sex registered partners. But – even by the standards of Directive 2000/78 – in order to find ‘discrimination’, one would have to demonstrate that there is a convergence in the factual situations that would warrant their being treated alike. In the case at hand, for example, the ECJ would have had to compare the typical situation of same-sex partners with the typical situation of married spouses. Had it done so, it could have discovered that marriage is typically entered into with the purpose of having children, whereas same-sex partners typically have no children. It could also have noticed that having to deal with the upbringing of children in many cases implies that one of the spouses either has no income of his/her own or only a small income from a part-time job, whereas in the case of same-sex couples there is typically no comparable reason why each partner should not live on his/her own salary. It could have found that, as a consequence, most same-sex couples have two incomes (which is why they are increasingly seen as a social group with particularly high purchasing power), whereas married couples with children often are under considerable financial strain. It could have found that in the case of married couples the granting of a widower’s pension therefore has a clear social purpose, which in the case of most same-sex partners is definitely less self-evident. Finally, it would have noted that unmarried people and same-sex couples can have pensions only because other people raise children, who (once they have grown up) sustain society through their work: married couples thus make an important contribution to the common good whereas same-sex couples typically make no comparable contribution.

Bearing this in mind, one may well ask whether in the case of childless married couples or couples that have two full incomes the surviving spouse should really be entitled to a survivor’s pension – but there can be absolutely no doubt that there is no reason to grant such an entitlement to a surviving homosexual partner like  Mr Maruko. This judgment creates no equality, but undeserved privileges. 20

It is the ECJ’s (now CJEU’s) unwillingness to deal with relevant facts that lies at the roots of the apparent circularity of its reasoning. But one may ask whether this disturbing insouciance about facts is something that must be laid at the door of the Court alone, or whether it is not already inherent in the legal provisions it had to apply. There seems to be a certain ambiguity, or even a widespread misunderstanding, with regard to the meaning of the terms ‘equality’ and ‘discrimination’.

There is therefore a fifth and last point I should make here: both the ECJ’s judgment and the underlying legislation appear to suffer from inherent self-contradictions. If ‘equality’ means ‘equal pay for equal work’, and if – as the Court has argued – the benefits that were under consideration in the Tadao Maruko and Römer cases (i.e., a survivor’s pension and, prior to that, a higher pension while the spouse/partner is still alive) are considered to qualify as ‘pay’, then these benefits must accrue to all employees doing the same work, irrespective of any marital or civil partnership status. As things stand now, the new victims of ‘discrimination’ would be all those who, not being married and not living in a civil partnership, do not receive the same benefits despite delivering the same work output and making the same contribution to the pension scheme. If pension entitlements are part of a person’s ‘pay’, then those unmarried and un-partnered people should be given the right to designate a person of their choice as recipient of a possible ‘survivor’s pension’, otherwise there is no equal pay for equal work. If, by contrast, it is acknowledged that the benefits in question serve a social purpose (i.e., that of providing social security to a person who, for the purpose of raising children, has limited possibilities of earning a salary of his/her own and thus is dependent on his/her partner’s income), then one can hardly understand why Messrs Maruko and Römer should be entitled to them. Instead, and in view of the fact that in both cases the employment appears to have been in the public sector, those entitlements must be seen as ‘state social security and social protection schemes’ that are outside the scope of the Directive. Given the purpose of such benefits, they should be targeted: they should accrue to the socially vulnerable , or to those who, for example by raising children, provide a specific contribution to the common good. From the two ECJ judgments, one fails to see how either of these conditions would be met by Mr Maruko or Mr Römer.

It is a fundamental flaw not just of the two judgments discussed here, but also of the underlying legislation, that a distinction between ‘pay’ and ‘social security’ is made in a way that does not correspond to the reality of the market. The reality is that in some employment contracts (especially where higher management is concerned), so-called social benefits are individually negotiated: the employee accepts a lower salary in exchange for a higher pension, or a survivor’s pension for his spouse, or similar. There can be no doubt that under such circumstances those benefits should be qualified as ‘pay’. But it is hard to imagine how ‘anti-discrimination’ laws could be applied to such individually negotiated employment conditions without stifling the functioning of the labour market. If and where, by contrast, the employer uses fixed schemes to determine the salaries and other entitlements of their employees (as all public services and, with regard to the lower ranks of their staff, many privately-owned enterprises do), the qualification of social benefits such as pension rights as ‘pay’ makes not much sense, given that they are dependent not only on the amount and quality of work delivered by an employee, but also on numerous other factors such as the duration of his/her life, his/her marital status, etc. The failure to recognize the social purpose of such benefits and the application of a strict, but ill-conceived, principle of ‘equal pay for equal work’ is a serious flaw in Directive 2000/78. It simply leads to the result that employers must generally refrain from granting such benefits to any of their employees: it is in the very nature of social benefits that some draw a greater profit from them than others – therefore, there will always be some ‘discrimination’. It would therefore appear wiser to interpret Directive 2000/78 more restrictively, and to limit its scope strictly only to salaries that are based on a fixed scheme (i.e., not individually negotiated), but not to any employment-related social benefits.

Be that as it may, it seems very clear that the typical situation of gay partners, characterized by double income and no kids, is not equal to the typical situation of a married couple that, while receiving only one or one and a half salaries, bears the expense of raising children and, in doing so, makes a specific contribution to the common good. If the ECJ’s interpretation of Directive 2000/78 is correct, then ‘anti-discrimination’ means that the unequal must be treated equally .

A No Rule without Exception

Anti-discrimination legislation prohibits unequal treatment on specific grounds that are identified as ‘suspect criteria’. But what if, in a given situation, the application of such a ‘suspect’ criterion turns out to be fair and objective? Should it then still not be used? Long before ‘anti-discrimination’ policies came to deal predominantly with the promotion of gay and lesbian issues, their main concern was over the equality of sexes. The underlying narrative that was to provide legitimacy and moral high ground for the proponents of ‘anti-discrimination’ was that from the dark origins of times to our day women had always and everywhere been the victims of discrimination and enslavement, and that – in the absence of any other possible suspects – men were responsible for having oppressed them. To remedy this situation, the equality of citizens irrespective of their sex was enshrined as a foundational principle in the constitutional laws of most democracies, and all laws that provided for differences in treatment were, one after the other, modified or abrogated.

But, somehow, this alone did not suffice to satisfy the fighters against ‘discrimination’. What they had obtained was equal rights, but what they still want is ‘equality’. ‘Equality’, in their view, does not mean that men and women should have equal rights, but that they have the same living conditions, earn the same salaries (at least on average), occupy the same number of seats in parliaments or governments, or the same number of senior posts in the management of enterprises. For this kind of ‘equality’, the factual differences between the sexes (e.g., the fact that only women can become pregnant, or that men and women have different preferences in their career planning, or that men are more apt for physical work) often turns out to be an obstacle that can only be overcome by deliberate differences in treatment, which are then called ‘positive discrimination’. Bizarrely, therefore, ‘equality’ is often the opposite of ‘equal rights’, and ‘anti-discrimination policies’ turn out in actual fact to be pro-discrimination.

Council Directive 2004/113, which has the stated purpose of ‘implementing the principle of equal treatment between men and women in the access to and supply of goods and services’ is a perfect example of this. In the civil law of all EU Member States, men and women have the equal right to own property, for example money, and the equal faculty to conclude contracts, for example concerning the purchase of goods and services. Whoever has confidence in the functioning of a free market economy would think that this equality before the law should suffice to give them access to all goods and services they desire. But the lawmakers thought otherwise: they were concerned over the fact that for certain goods and services women and men might have to pay different prices. For example for clothing and shoes (although, obviously, the different styles of dressing may be a good reason for any such price differences). Or for a haircut (maybe we will soon get an EU directive to implement the principle of uniform dressing and hairstyle?)

One of the areas in which men and women often pay different prices is insurance. This, however, is not the result of deliberate discrimination, but is due to the fact that insurance companies, in order to ensure that the premium to be paid for a given insurance policy corresponds to the size of the insured risk, carry out a careful risk assessment that is based on all available statistical information. The more accurate this calculation, the easier it will be for an insurance company to offer insurance at a competitive price.

Statistical evidence demonstrates, however, that in many cases risks may be significantly different for persons of a different sex. There are diseases that affect predominantly women (like breast cancer), or only men (like prostate cancer), or that affect men and women with highly different degrees of likelihood (e.g., cardiovascular diseases). Health risks associated with pregnancy and maternity affect only women. On the other hand, women have a longer life expectancy, and that fact – combined with the on average lower retirement age – means that they often have to pay higher contributions for their (private) health and pension insurance schemes. At the same time, male drivers, especially young ones, have a higher statistical risk of being involved in a car accident, and hence are often required to pay higher prices for their car insurance. The principle thus applies in both directions: in some cases it results in higher insurance fees for women, in other cases in higher fees for men.

When the EU set out to enforce the principle of equal treatment in the access to and supply of goods and services, it was clear from the outset that an exception had to be made for insurance. The directive, which was adopted by unanimous vote in the Council, thus provided in its Article 5:

Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits.

Notwithstanding paragraph 1, Member States may decide before 21 December 2007 to permit proportionate differences in individuals’ premiums and benefits where the use of sex is a determining factor in the assessment of risk based on relevant and accurate actuarial and statistical data. The Member States concerned shall inform the Commission and ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. These Member States shall review their decision five years after 21 December 2007, taking into account the Commission report referred to in Article 16,  and shall forward the results of this review to the Commission.

The provision in Article 5(2) thus certainly put a burden of proof on the Member States concerned to demonstrate that their legislation was not discriminatory. But the exemption it provided for was clearly intended to be a permanent one. This was further corroborated by a recital which ran thus:

(19) Certain categories of risks may vary between the sexes. In some cases, sex is one but not necessarily the only determining factor in the assessment of risks insured. For contracts insuring those types of risks, Member States may decide to permit exemptions from the rule of unisex premiums and benefits, as long as they can ensure that underlying actuarial and statistical data on which the calculations are based, are reliable, regularly up-dated and available to the public. Exemptions are allowed only where national legislation has not already applied the unisex rule. Five years after transposition of this Directive, Member States should re-examine the justification for these exemptions, taking into account the most recent actuarial and statistical data and a report by the Commission three years after the date of transposition of this Directive.

B A Constitutional Complaint Brought to the CJEU

Given that, according to common wisdom, the purpose of ‘anti-discrimination’ policies is to protect women against male oppression, it is certainly surprising that two men, Messrs van Vugt and Basselier, should have considered themselves to be victims of ‘discrimination’ with regard to access to insurance. And yet this is what happened: for reasons that remain unclear (as the CJEU’s judgment makes no mention of them, nor of any details of the proceedings at national level), and availing themselves of the support of Test Achats, a leading Belgian consumers’ association, they filed a complaint with the Belgian Constitutional Court, demanding the invalidation on grounds of unconstitutionality of the legal provision by which Belgium had transposed Article 5(2) of Directive 2004/113 into the domestic legal order. In simpler words, they considered that the exemption of insurance services from the general principle of unisex premiums violated the Belgian Constitution.

The Belgian Constitutional Court, however, rather than examining the compliance of the challenged provision with Belgian constitutional law, referred the case to the ECJ for a preliminary ruling on whether Article 5(2) of Directive 2004/113 (i.e., the provision the challenged Belgian law was meant to transpose) was in conformity with the principle of equality and non-discrimination as guaranteed by Article 6(2) of the EU Treaty. This was not strictly necessary, as a law can, while standing in contradiction to the Belgian Constitution, conform to the EU Treaty, and vice versa. It would thus have been possible for the Constitutional Court to invalidate the Belgian law and at the same time leave intact the ability of other Member States to avail themselves of the flexibility offered by Article 5(2) to exempt insurances from the strict application of the unisex premium rule if and where a significant difference in the actuarial risk in relation to sex was demonstrable. But, as it was, the case was turned from a constitutional complaint in Belgium into one at European level – which is remarkable, because individual citizens do not normally have the chance to question the compatibility of EU directives with primary Community law.

By judgment 21 of 1 March 2011, the CJEU ruled that Article 5(2) of Directive 2004/13, having been found incompatible with Articles 21 and 23 of the EU’s Fundamental Rights Charter, was to be considered invalid as from 21 December 2012.

C Critique of the Court’s Ruling

Despite being preceded by the Opinion of Advocate General Juliane Kokott, who had come to the same conclusions, the Court’s judgment has surprised many by its bluntness and poverty of argument. For indeed, Mrs Kokott’s conclusions had already received harsh criticism in the mass media 22 as well as from legal experts and stakeholders (not just the representatives of insurance companies, 23 but also some consumer organizations 24 ) which, one might have expected, should have been reason for the Court to handle this case with even greater caution than normal and give the matter a second thought. But there is hardly anything in the judgment to suggest that the Court made any attempt to use caution or restraint.

The CJEU adopts a rather too simplistic point of view when, in paragraph 16 of its Decision, it says:

Article 6(2) EU, to which the national court refers in its questions and which is mentioned in recital 1 to Directive 2004/113, provides that the European Union is to respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law. Those fundamental rights are incorporated in the Charter, which, with effect from 1 December 2009, has the same legal status as the Treaties.

As a summary of the legal framework on fundamental rights, this is not quite correct. The FRC does not incorporate the rights contained in the ECHR, but it paraphrases those rights with, at times, rather different words. The reason why the Charter, rather than sticking to the text of the Convention, uses different words has never been explained in a satisfactory manner, so that it remains quite unclear whether this is (a) a pure coincidence or inadvertence, or (b) a deliberate attempt by 27 of the 47 Member States of the Council of Europe unilaterally to re-interpret the Convention and change its meaning, or (c) an attempt to provide a higher level of rights protection in the EU than provided for by the Convention. Whichever it is, the two documents differ considerably from each other. 25 This is particularly true for the issue of ‘discrimination’: while Article 14 ECHR prohibits ‘discrimination’ only with regard to ‘the enjoyment of the rights and freedoms set forth in this Convention’, Article 21 of the FRC prohibits ‘any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’, and thus creates a completely new type of cross-cutting fundamental right. Article 23 of the FRC, which stipulates that ‘equality between men and women must be ensured in all areas, including employment, work and pay’, has no correlative at all in the ECHR, nor are similar provisions to be found in the constitutional laws of many Member States. On the other hand, however, the second paragraph of Article 23 FRC, which provides that ‘the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex’ clearly reveals that this provision does not at all aim at ‘equal rights’; quite on the contrary, it contains a mandate for creating ‘equality’ through deliberate discrimination, and must thus rather be seen as a warrant for unequal rights . It is hard to describe this approach otherwise than by saying that, standing in direct and radical contradiction to the prohibition of ‘any discrimination based on ... sex’ in Article 21, it evidences the self-contradictions of the European Union’s ‘anti-discrimination policies’: in principle ‘discrimination’ is bad, but when it suits the interest of certain groups it is good. The assertion that provisions like Articles 21 and 23 ‘result from the constitutional traditions common to the Member States’ seems quite daring, and the CJEU in the judgment at hand does nothing to provide substance and credibility to this claim. What many Member States do have in their constitutional laws 26 is a clause similar to Article 20 of the Charter: everyone is equal before the law. But that is something completely different from the novel ‘anti-discrimination’ language in Article 21 or the pro-discrimination clause in Article 23.

Be that as it may, one thing is certainly true: Articles 21 and 23, albeit contradicting each other, are now a part of the EU’s primary law. Therefore, the provisions in a directive must comply with them.

But is it really ‘discrimination’ in the sense of Article 21 FRC if a directive allows one to charge different premiums for the insurance of risks that, according to all statistical evidence, differ significantly? Would it not rather be ‘discrimination’ to impose a provision that different risks must be insured at the same price? Does Article 23 not provide legitimacy to certain differences in treatment where this seems appropriate?

One might have expected the Court to discuss these crucial issues exhaustively. This case was not about an individual action with no implications for third parties, but about the broad implications of two articles of the new Fundamental Rights Charter which leave a wide margin of interpretation. Thus, what would have been required here was a careful and yet exhaustive exegesis of those two articles, exploring their scope and their limits.

But those looking for such an analysis in the CJEU’s decision will be disappointed. The core passages of the judgment are the following:

28 The Court has consistently held that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (see Case C-127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I-9895, paragraph 23).

29 In that regard, it should be pointed out that the comparability of situations must be assessed in the light of the subject-matter and purpose of the EU measure which makes the distinction in question (see, to that effect, Arcelor Atlantique et Lorraine and Others, paragraph 26). In the present case, that distinction is made by Article 5(2) of Directive 2004/113.

30 It is not disputed that the purpose of Directive 2004/113 in the insurance services sector is, as is reflected in Article 5(1) of that directive, the application of unisex rules on premiums and benefits. Recital 18 to Directive 2004/113 expressly states that, in order to guarantee equal treatment between men and women, the use of sex as an actuarial factor must not result in differences in premiums and benefits for insured individuals. Recital 19 to that directive describes the option granted to Member States not to apply the rule of unisex premiums and benefits as an option to permit ‘exemptions’. Accordingly, Directive 2004/113 is based on the premise that, for the purposes of applying the principle of equal treatment for men and women, enshrined in Articles 21 and 23 of the Charter, the respective situations of men and women with regard to insurance premiums and benefits contracted by them are comparable.

31 Accordingly, there is a risk that EU law may permit the derogation from the equal treatment of men and women, provided for in Article 5(2) of Directive 2004/113, to persist indefinitely.

32 Such a provision, which enables the Member States in question to maintain without temporal limitation an exemption from the rule of unisex premiums and benefits, works against the achievement of the objective of equal treatment between men and women, which is the purpose of Directive 2004/113, and is incompatible with Articles 21 and 23 of the Charter.

Five paragraphs, albeit in solemn legal language, are rather a small space in which to discuss an issue of such general importance. Yet the core of the Court’s reasoning could be put in even simpler words: the purpose of Directive 2004/113 is to establish the principle of unisex premiums in the insurance sector. The provision made by Article 5(2) is described as an ‘exemption’. Therefore, it must be concluded that the legislator of the Directive believed that the respective situations of men and women with regard to insurance premiums and benefits contracted by them are ‘comparable’ (viz. the same), and that, in the absence of such an ‘exemption’, the application of different premiums for men and women must (again: according to the legislator of the Directive) be considered ‘discrimination’. But such ‘discriminations’ must not be allowed to persist indefinitely. Therefore, the ‘exemption’ must be declared invalid ‘upon the expiry of an appropriate transitional period’.

This argument – or should I say: this lack of argument? – is astonishing. First and foremost, the CJEU does not even attempt to explain why the application of different premiums for statistically different risks should be considered ‘discriminatory’. Instead, it defers to mere assumptions allegedly made by the legislator of the Directive, which it considers to be ‘based on this premise’. In other words, the Court abdicates its own authority to challenge and examine that premise, which, had it really been made by the legislator, would certainly have deserved some critical scrutiny.

In actual fact, however, it is not at all certain that the legislator really made such a premise, or that he made it with regard to all insurance contracts. From the word ‘exemption’ alone it cannot be concluded that, in the eyes of the legislator, the insurance contracts covered by Article 5(2) were to be seen as ‘discrimination’ which, by virtue of that provision, would be allowed to persist only for a limited phasing-out period. On the contrary, the legislator’s intention appears to have been that those insurance contracts should be permanently exempted from the application of unisex premiums precisely because, under the conditions set out in Article 5(2), the application of different premiums was not considered discriminatory . The CJEU has widely overstretched the significance of the word ‘exemption’, and attributed to the European legislator an opinion it clearly did not have. Quite obviously, there are many types of insurance contracts where the insured person’s gender has no influence whatsoever on the risk assessment (wherefore it would indeed seem discriminatory to apply different premiums for men and for women), while in other cases a significant difference of risk depending on to the insured person’s sex can easily be demonstrated: the insurance of a house against fire and inundation clearly falls into the first category, while health insurance clearly seems to fall into the second. It seems logical to apply the unisex rule only to some types of insurance contracts, while exempting other types of insurance on a permanent basis. This is what Article 5(2) allowed Member States to do.

The reasoning of the Court is thus based on a series of non sequiturs . First, from the word ‘exemption’ in Recital 19 of the Directive it does not follow that the legislator made the assumption ‘that ... the respective situations of men and women with regard to insurance premiums and benefits contracted by them are comparable’. Secondly, if the legislator had indeed made such an assumption, it still would not follow that that assumption was correct, or that it could not be challenged: a mere assumption is not an established fact. Thirdly, even if the assumption were correct, it would not follow that such ‘comparability’ would necessarily mean that each and every difference in treatment must be deemed an illicit ‘discrimination’: as we have seen before, two things that are ‘comparable’ are not necessarily ‘identical’. On the contrary, the very fact that the Directive contained an exemption for insurance contracts means that the legislator considered that in this specific area unequal treatment was not discriminatory.

In the light of the preceding remarks, it can be said that what we are witnessing here is the creation ex nihilo of a new ‘fundamental right’: the right to buy services of different value for the same price. Once again, ‘anti-discrimination’ is transposed into an obligation to give equal treatment to unequal situations.

It is not my intention here to dwell on the economic consequences of the judgment. It suffices to imagine what will happen under normal free market conditions if one particular group of potential clients is asked to pay insurance fees that are higher than what actually would correspond to the risk they seek to insure: that group of clients will simply be discouraged from taking out insurance. The remaining clients (i.e., those representing a higher statistical risk) will thus remain the only ones to take out insurance: but even for them the insurance fee will not decrease because, with the low-risk clients not buying insurance, the insurance fees must still correspond to the risk of the only remaining group that does take insurance, i.e., the high-risk group. In other words, the sole effect of such a policy would be to evict the low-risk clients from the market. And the only areas where this consequence will not occur are those where insurance is compulsory (as is the case, e.g., for car insurance). The ‘equal treatment’ provided as per the CJEU judgment is thus in reality a special tax levied on low-risk groups in order to subsidize high-risk groups. It should at least be called by that name.

Now it could certainly be that this analysis is too pessimistic, and that at least a few people will draw some benefit from this landmark decision. But given the harsh criticism this judgment has received, it seems neither unlikely nor illegitimate that a future Community legislator would wish to correct a judgment he might view as careless and ill-reasoned. The problem, however, is that such a correction will hardly be possible.

It should be noted here that Directive 2004/113 was adopted under Article 13 of the EC Treaty (now: Article 19 of the Treaty on the Functioning of the EU (TFEU)). For a directive to be adopted on this legal basis unanimity between Member States is required. This is an aspect of the judgment that, despite the considerable coverage the case has received in the media, does not seem to have caught much attention – but it is nevertheless monumental: by simple majority vote, a Grand Chamber of the CJEU has declared invalid a legal act that had been adopted by the unanimous decision of the (then) 25 Member States ! A vote of, say, seven versus six judges suffices to invalidate a decision on which, without exception, all governments have agreed. But who knows better which meaning the FRC intended to give to ‘equality’? The Member States that adopted the FRC as well as Directive 2004/113 by unanimity, or the CJEU?

If, as seems perfectly legitimate and reasonable, Member States should want to re-introduce a possibility for insurance companies to apply different premiums for men and women in cases where the risk assessment demonstrably depends on the sex of the insured person, they will have to overcome almost insurmountable obstacles. It would not suffice to adopt, once more by unanimous vote, a new provision to that effect. Instead, it would be necessary to change the text of the FRC itself, at least through adding a specific clarification that the EU’s endeavour to fight ‘discrimination’ is not to be understood as meaning that justifiable differences in treatment (such as different insurance premiums for different risks) are not allowed to persist. This would require not only a unanimous vote by Member States, but an intergovernmental conference that would have to be followed by a ratification procedure in each Member State and, in some of them, even a popular referendum.

What we are confronted with is thus not just a silly, and poorly reasoned, Court decision or, indeed, as the Frankfurter Allgemeine Zeitung 27 put it, the ‘silliest judgment in the history of economy ’ . Instead, the case aptly illustrates how EU Member States, by adopting a new Fundamental Rights Charter and defining it as part of the EU Treaty, have caught themselves in a trap. A new set of ‘fundamental rights’ (including not just the ‘equality’ provisions in Articles 21 and 23 of the Charter, but also other novelties such as the ‘right to a good administration’ in Article 41 or the ‘right to a high level of consumer protection’ in Article 38) provide a pretext for the CJEU to adopt extravagant and far-reaching judgments that are apt to cancel out even provisions that have been enacted by unanimous agreement of the entire EU membership. Rather than providing increased protection for citizens, the Charter seems to pave the way towards a dictatorship of the judiciary.

A The Legal Basis

The third case 28 I wish to relate here was not decided by the ECJ, nor does it have a basis in current EU legislation. It is a case that has been decided by a court in a Member State based on that Member State’s domestic legislation. Also, it should be noted that the ruling was issued by the first instance of the judiciary, and that an appeal is still pending. 29 Nevertheless, the case is significant: given that the legislation it is based on is very similar to a legislative proposal that is currently under discussion at European level, it provides a foretaste of what is due to happen in courts all over Europe, should that legislative proposal be adopted.

The court that issued the judgment is the Bristol County Court, and the legislation on which the judgment was based is the Equality Act (Sexual Orientation) Regulations (SORs), secondary legislation in the UK which was adopted by the Secretary of State in 2007 under powers granted by the Equality Act 2006.

These Regulations prohibit ‘discrimination on the grounds of sexual orientation’ with regard to the provision of goods and services (among which the ‘accommodation in a hotel, boarding house or similar establishment’ is explicitly mentioned). They also clarify that, within their scope, married (i.e., different-sex) couples and civil partners 30 (i.e., same-sex couples) must be treated alike.

In substance, the Regulations are similar to the content of the European Commission’s proposal 31 for a directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age, or sexual orientation.

B The Facts of the Case and the Court’s Ruling

The case which was brought to the Bristol County Court concerned the owners of a privately owned Bed & Breakfast in Cornwall who, based on their Christian belief in the sanctity of marriage, had a long-standing policy of not letting double rooms to unmarried couples. This policy was mentioned on the hotel’s website, and people wishing to reserve a room by telephone were informed of it. This notwithstanding, a certain Mr Preddy called and reserved a double room for a weekend for himself and his spouse. Only upon their arrival at the hotel did it turn out that Mr Preddy was homosexual and that his ‘spouse’ was, in fact, a man with whom he lived in a registered civil partnership. The owners of the hotel refused to accommodate them in a double room, but offered two separate rooms instead. But the homosexual couple, rather than accepting this offer, went to court and filed an action for ‘discrimination’. Their claim was upheld by Judge Andrew Rutherford, who awarded them £3,600 in damages.

C A Comment on the Ruling

Given that a judge’s task is to apply laws, there is no reason to reproach him for this judgment: with the SORs providing what is summarized above, he could hardly have decided otherwise. Nonetheless, the judgment caused uproar in the media, and received overwhelmingly negative comments.

Why was this? Apparently the wider public was not familiar with the new legislation, or at least not with its practical implications. The press coverage that had accompanied the legislative process had probably not caught the attention of a wide readership. The few who followed it had read and heard of new measures that were necessary to prevent ‘discrimination’, not of a law that would massively curtail contractual freedom. Yet while there appears to be wide agreement that ‘discrimination’, whatever that is, is bad and should not be accepted, the necessity of a law that exposes to heavy financial sanctions an elderly couple who wanted nothing but to run their business in line with their, at worst, somewhat conservative morality was certainly much less self-evident. Was the sanction imposed by the law really proportionate to any damage suffered by the homosexual couple? Why could such matters not simply be regulated by the forces of the free market?

It is thus not the judge’s decision that raises many questions, but rather the law on which it was based. Indeed, the judge himself seemed to have some doubts. Besides granting the defendants leave to appeal his ruling, he also stated:

The standards and principles governing our behaviour which were unquestioningly accepted in one generation may not be so accepted in the next. I am quite satisfied as to the genuineness of the defendants’ beliefs and it is, I have no doubt, one which others also hold. It is a very clear example of how social attitudes have changed over the years for it is not so very long ago that these beliefs of the defendants would have been those accepted as normal by society at large. Now it is the other way around. . . . I have no doubt . . . that the defendants genuinely hold a perfectly orthodox Christian belief in the sanctity of marriage and the sinfulness of homosexuality. . . . In my view, . . . each side hold perfectly honourable and respectable, albeit wholly contrary, views.

Each side holds honourable and respectable views? This statement would deserve somewhat more nuance. The truth is that one of those views, namely that of the defendants, was universally considered to be the one and only honourable and respectable view throughout nearly the entire history of human civilization – at all times, in all places, and among all people. 32 The other view (i.e., that of the two claimants) has emerged only very recently, 33 and only in a rather limited number of countries. Thus, to describe the defendants’ moral stance in any other way than as ‘perfectly honourable and respectable’ would be tantamount to condemning the moral stances taken by all nations at (nearly) all times. It would mean that everybody had been wrong on this issue, except the law-makers of England and Wales as from 2007. Even as I write this, there is hardly any country in the world where laws comparable to the Equality Act (Sexual Orientation) Regulations are in force. With regard to the claimants’ views, by contrast, one cannot help noting that they do not have similar credentials. Not many would have described them as ‘perfectly honourable and respectable’ 20 or 30 years ago. As the judge pointed out, ‘social attitudes’ have changed, and the laws with them. But have they really? The defendant’s stance shows that this recent change of attitude is certainly not shared by all and everyone. And even if it were, i.e., if an overwhelming majority of Britons adhered to the ‘new’ attitude towards homosexuality, does that mean that it becomes illicit to hold diverging views? Is it wrong for elderly people such as the defendants to stay loyal to the moral values they were brought up with?

Thus, even if we were to assume, for argument’s sake, that the judge was right and that, due to ‘social attitudes’ having changed, both views were now to be considered equally honourable and respectable, that would not answer the question why the defendants, whose views, by the judge’s own words, are ‘perfectly honourable and respectable’, are punished for having acted in accordance with them. Apparently there are some honourable and respectable views, namely those of the claimants, which receive the backing of the law, while the defendants’ views, albeit equally honourable and respectable, are now under threat of persecution. While the claimants get their litigation financed by the taxpayer through a government-funded Equality and Human Rights Commission (EHRC), 34 the defendants, albeit equally honourable and respectable, have to bear their own legal expenses. And this, quite absurdly, is the result of a law that has the stated purpose of promoting tolerance, equal treatment, and non-discrimination.

Indeed, rather than protecting liberty and equality, the Equality Act (Sexual Orientation) Regulations appear to undermine both. And rather than protecting anyone against bigotry and harassment, they offer a new legal basis for them. In the case at hand, the judge said he did not believe that the defendants were ‘set up’ by the claimants with the assistance of a group such as Stonewall – but he also said that such a set-up, even if ‘very materially affect[ed] the issue of damages’, would not by itself defeat the discrimination claim. 35 In other words: this new law does give a mandate to pressure groups such as Stonewall to act as a thought police, bringing claims against people who dare to act according to their different (albeit ‘perfectly honourable and respectable’) moral views. It is no wonder, then, that in the days following the Bristol County Court’s judgment, the defendants were reported to have received abusive and menacing telephone calls from homosexuals attempting to book double rooms at their hotel and warning them that they would be acting illegally if they refused. 36 Also, it was reported that the hotel suddenly received a quantity of malicious bogus reviews on travel websites, 37 the apparent purpose of which it was to put the hotel out of business. While, of course, it is true that the Equality Act (Sexual Orientation) Regulations neither mandate nor give licence to such hate crimes, and the hotel owners have the right to take legal action against the perpetrators, it nevertheless remains that those acts would probably never have taken place had the law not put the hotel owners into such a vulnerable position: nobody would ever have heard of them and their ‘conservative’ views on the sanctity of marriage, nor would anyone have had the idea of harassing and bullying them because of those views. In the context of their condemnation by the Bristol County Court, the defendants – an elderly couple whose views the Court found ‘perfectly honourable and respectable’! - have been exposed to vilification and mockery in certain mass media for their ‘narrow-minded, eccentric, batty rejection of modern mores’. 38 Moreover, having to bear their own litigation costs in the discrimination case, the hotel owners are hardly able to spend time and money on defending themselves against hate crimes that are committed under the shield of anonymity. It is thus precisely the government’s anti-discrimination policy that has the effect of singling them out and exposing them to harassment.

Thus, the UK’s cutting-edge legislation on ‘equality’, instead of providing improved human rights protection, raises serious concerns with regard to its own compatibility with fundamental human rights. With regard to Article 9 ECHR, Judge Rutherford recognized that the running of a hotel along Christian beliefs can be described as ‘manifesting one’s religion’, i.e., that the right to religious freedom is not limited to belief and worship, but also includes the right to act in accordance with one’s belief. 39 But even if Article 9 were to be interpreted more restrictively, there could be no doubt that Article 8 of the Convention is applicable. The concluding of contracts is one of the principal ways for us to interact with other persons, and the freedom to determine their content and to decide with whom one wants, or does not want, to enter into contractual relationships is thus one of the most important freedoms everybody should enjoy in a free society. This does not mean that contractual freedom can under no circumstances be restricted. But any such restriction must pass the test that Article 8 ECHR establishes for laws that, in one way or the other, limit a person’s right to self-determination: whether it is necessary in a democratic society .

Even assuming that homosexuals have been in the past, or continue to be today, victims of discrimination and harassment and that it is therefore necessary to protect them – is it necessary in a democratic society to adopt laws that outlaw views and opinions that, to use yet once more the words of Judge Rutherford, are ‘perfectly honourable and respectable’? As it appears, there was never any risk for the two complainants that, being sent away by all hotel owners in the area, they would have had to spend the night under the open sky. Quite on the contrary, it is a known fact that gay tourists are today one of the most sought after clienteles of the tourism industry, 40 and many hotels openly announce their ‘gay-friendliness’ in order to attract them. 41 Under such circumstances, is it really necessary 42 for the legislator to curtail the contractual freedom of hoteliers? Or is this not a bit disproportionate?

This is not about three isolated cases without a broader significance. Of the three cases discussed here, the first two have been decided by the CJEU/ECJ, the supreme judicial body of the EU. They are preliminary rulings under Article 267 (ex Article 234) of the TFEU, through which the CJEU, in a manner which binds all courts throughout the EU, has decided how relevant parts of the EU legislation must be applied. The third one, having been decided by a local court, is still open to review, but there is hardly any doubt that the judge’s decision was in keeping with the law he was called on to apply. It is this law, rather than the judge’s interpretation of it, that raises serious questions. And it is certainly commendable for lawmakers outside the UK to reflect on those questions before adopting similar laws.

Is ‘anti-discrimination’ the remedy for a widespread social problem, or is it itself a problem in need of a remedy? From what is exposed above I would draw the following conclusions:

First, there appears to be a wide divergence between the reality of ‘discrimination’ and its perception in the media or political environment . Although it would probably be an exaggeration to affirm that there was an inverse correlation between perceived and factual discrimination, it nevertheless does seem appropriate to caution against basing ‘anti-discrimination policies’ on subjective perceptions that appear to be caused by obtrusive awareness-raising campaigns rather than on tangible facts.

Secondly, the novel doctrines of ‘discrimination’ and ‘equality’ diverge considerably from the traditional concept of justice upon which, from antiquity until today, our legal systems were built. While the traditional concept of justice, summarized in the principle ‘ suum cuique tribuere’ , meant to treat equal things equally, unequal things unequally, and everything according to its merit, modern anti-discrimination policies tend to turn this principle upside down. The Maruko and Römer decisions have resulted in providing additional pension entitlements and family allowances to a group of people typically living in double-income-no-kids situations; very clearly, that is not what these particular social benefits were meant for. The Test Achats case has resulted in an obligation for insurance providers to insure unequal risks at the same price – a palp able example of equal treatment for unequal situations. Though this was not examined in detail in this article, I might add that certain other ‘anti-discrimination measures’, such as the proposal to ensure ‘gender balance in business leadership’ through putting an obligation on publicly listed companies to reserve a fixed quota of their board chairs to women, 43 commit the opposite error: this kind of affirmative action means treating people of equal qualification and merit unequally, and promoting people on the basis of their being of the right gender rather than on the basis of capabilities and merits. It is hard to see how such policies, which find a legal basis in Article 23 of the FRC, could be reconciled with the classical concept of justice. They remind one of an attempt to organize a football World Cup in such a way that it would become equally probable for the Faroe Islands to win the trophy as it is for Brazil, e.g., by allotting a certain number of penalty kicks to the Faroe Islands or by reducing the number of Brazilian players in the field to five. But would that still correspond to the purpose of a football competition? And are such measures not conducive to inequality rather than equality? Indeed it appears that, following truly Orwellian logic, ‘anti-discrimination’ is discrimination.

Thirdly, one might also question the necessity of those anti-discrimination policies. As Montesquieu famously pointed out, laws that are unnecessary undermine those which are necessary, 44 which is the reason unnecessary laws should not be adopted. With regard to the three court rulings examined in this article, it seems impossible not to question the necessity of the legal provisions upon which they were based. Do gay men who have been able to earn their own salary and to acquire their own pension entitlements for more than 30 years really need a survivor’s pension? Is it really necessary for the wellbeing of society that men and women pay exactly the same price for their car insurance? Is it really necessary to adopt and enforce laws that require Christian hotel owners to accommodate gay couples in double bedded rooms when those gay couples have plenty of alternatives? Beyond those women who, through their zeal and personal capability, make their way into leadership positions anyway, is there really a need for companies to have a fixed quota of female board members? These and similar issues are often treated as if the need for the measures in question were a self-evidence. But is it really?

Fourthly, in times of economic crisis and budgetary constraints it is certainly worthwhile spending a thought or two on the costs of ‘anti-discrimination policy’. These costs include not only the costs of devising and implementing those policies (i.e., the salaries of the public servants drafting and enforcing such laws, the setting-up of specialized agencies at national or EU level, 45 and the heavy subsidizing of certain non-governmental ‘advocacy groups’ 46 ). As the Maruko and Römer decisions show, anti-discrimination leads to new entitlements that someone has to pay for. If homosexuals obtain access to a new social entitlement, it is the non-homosexual rest of society who will pay for it. The Test Achats decision, as has been shown, is likely to lead to a generalized increase in insurance costs. Finally, measures like fixed quotas of female (or black, or homosexual, or handicapped. . .) board members for publicly listed companies are very likely to lead to indirect and hidden, but nevertheless considerable, economic costs. If companies are constrained to employ managers other than those with the best qualifications, this may result in positive damage in terms of management mistakes, or in lost business opportunities (in terms of what a more capable manager might have achieved). Moreover, such legislation could even have the result of encouraging companies to move their headquarters to countries where they do not face this kind of constraint. The economic losses, albeit difficult to quantify, could be enormous.

A fifth point to be noted – and maybe the most important one – is the loss of personal freedom caused by ‘anti-discrimination policies’. This is already discernible in the Test Achats case, where the CJEU cancelled out the economic freedom of both insurance companies and their clients to agree on insurance prices that seemed best to correspond to the insured risk. Before that, Directive 2004/113 had already imposed limitations on economic liberty with regard to all other goods and services. But the case in which this liberty-killing effect of ‘anti-discrimination’ has become most palpable is the B&B case, where people have been punished for having acted in accordance to what the judge himself described as ‘perfectly honourable and respectable’ views. An ‘anti-discrimination law’ that allows some people to act in accordance with their honourable and respectable views, while prohibiting others from acting with their equally honourable and respectable views, is, quite obviously, in and of itself discrimination. But this is far from being an isolated case. There are many more instances where anti-discrimination laws have been used to undermine civil liberties, most notably the freedom of speech.

A sixth point is that the loss of self-determination of the average citizen is mirrored by the increase of power for those few who are called to determine what is, and what is not, ‘discrimination’. This is mostly due to the fact that ‘anti-discrimination laws’ such as EU Directives 2000/78 and 2004/113 are by no means more precise than the (outdated?) principle of suum cuique – yet being of more recent making, their exact significance still remains rather unclear, which means that courts and public administrations enjoy an extremely wide margin of interpretation. This situation is conducive to costly, unproductive, and often frivolous litigation – especially where, as occurred in the B&B case, potential claimants are allowed to litigate at the expense of a publicly financed quango. The legal uncertainty reaches its extreme when, in the name of a novel but vaguely drafted pan-European super-dogma, a simple majority of CJEU judges overturns a provision that government representatives of 25 Member States had agreed upon by unanimity.

Last but not least, the events that occurred in the aftermath of the B&B case cast serious doubt on the assumption that ‘anti-discrimination policies’ will lead to more tolerant societies. On the contrary, there is reason to fear that the self-ordained victims of today may become the oppressors of tomorrow.

Special Eurobarometer 317, Discrimination in the EU in 2009, at 22 and 25.

Ibid .., at 27.

The most notorious recent cases include the murder (in Iskenderun/Alexandrette on 3 June 2010) of Catholic bishop Luigi Padovese, and the assassination (in Istanbul on 19 Jan. 2007) of Armenian journalist Hrant Dink, as well as the murder of three evangelical Christians in Malatya on 18 Apr. 2007.

Concerning the dispute on land ownership that sets the Mor Gabriel Monastery against the Turkish State Treasury cf. Krüger, ‘Rettet das zweite Jerusalem’, Frankfurter Allgemeine Zeitung , 27 Apr. 2009.

The Seminary on the island of Chalki (Turkish: Heybeliada), which was closed by order of the Turkish government in 1971. It was the main school of theology of the Eastern Orthodox Church’s Ecumenical Patriarchate of Constantinople.

Cf. the Res. adopted on 17 Sept. 2009 by the European Parliament to condemn Lithuania for having adopted a new ‘Law on the Protection on Minors’, which prohibited the promotion of homosexuality at schools. However, on 10 Nov. 2009, the Lithuanian parliament (Seimas) retaliated by adopting a res. requesting the Government to seek the invalidation of the EP Res., which it condemned as an unlawful act. That view was subsequently confirmed by the EU Fundamental Rights agency, which declined the Parliament’s request to issue a legal opinion on the controversial law on the ground that it had no legal mandate for doing so.

Searching for opinions rather than facts is the approach that also underlies a new survey on ‘LGBT discrimination’, which is currently (in April 2012) carried out by Gallup on behalf of the EU Fundamental Rights Agency (FRA). The survey is freely accessible on the internet (www.lgbtsurvey.eu) and anyone wishing to do so can participate, but only the responses of persons who describe themselves as gay, lesbian and transgender are taken into account. The questionnaire does not even remotely comply with the generally known standards for social research. Rather than approaching the issue from a neutral and disinterested point of view, it resembles an invitation to all those LGBT persons who feel discriminated to ‘tell their story’ in order to confirm the FRA’s pre-established view that LGBT discrimination is the most pressing of all human rights issues. But the information gathered under this methodology is too unspecific to allow any serious conclusions, given that the survey is anonymous, respondents are not required to provide any verifiable and factual information regarding the discrimination they allegedly have suffered, and there is even no firewall to prevent one and the same person from sending multiple responses. Finally, many of the questions are drafted in a way that is unlikely to lead to any useful new insight: for example, asking transgender people whether they would be in favour of (unspecified) ‘workplace anti-discrimination policies referring to gender identity’ or ‘measures implemented at school to respect gender identity’ is rather like asking people whether they want a free meal. Seriously, who would expect them to say no to such a question? It would be more useful to ask the non-LGBT rest of society what they think of such measures and policies, because it is to them that those policies might bring some restrictions and disadvantages.

Which conclusions can validly be drawn from this survey? Not many. There is a certain number of individuals identifying as LGBT who perceive themselves as being victims of discrimination and who respond to the invitation to (anonymously) tell their story ▪ but it is not certain whether this discrimination exists in reality (rather than just in the perception of the respondents), nor is it clear to what extent those respondents are representative of the totality of LGBT persons.

This new survey is thus hardly apt to provide any credibility to whatever policy proposals it may wish to make on this basis. But it throws a spotlight on how opinion polls are nowadays used to influence policy debates.

Kraus, ‚Nachts (Zeit)’, in G. Fieguth, Deutsche Aphorismen (1978), at 227.

Corpus Iuris Civilis, Inst. 1, 1, 1; Dig 1, 1, 10.

E.g., EU Dir. 2000/43/EC, Art. 2(2)(a), OJ (2000) L180/22: ‘direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation’.

Case C–267/06, Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen [2008] ECR I–01757.

Cf. ibid ., at para.73 of the judgment.

E.g., the representative of the advocacy group ILGA-Europe spoke of a ‘historic victory’ and claimed that ‘the highest court in the EU today decided that registered (same-sex) partnerships have to be treated on the same footing as marriage and that employers and pension schemes must not restrict benefits to married partners’: Rechtskomitee Lambda, press release on 1 Apr. 2008, available at: www.rklambda.at/News/index.htm. This claim was incorrect and so was the heading of the press release (‘EuGH ordnet Gleichbehandlung von Lebenspartnerschaft und Ehe an’). In reality the Court did not make a general ruling that registered homosexual partnerships must be treated like marriages.

Case C– 147/08, Jürgen Römer v. Freie und Hansestadt Hamburg ECJ (Grand Chamber) 10 May 2011, available at: http://curia.europa.eu/,

Press release on 10 May 2011 by the ‘Rechtskomittee Lambda’, a gay rights pressure group with its seat in Vienna, available at: www.rklambda.at/e/index.htm.

Cf. G. Toggenburg, ‘“LGBT” go Luxembourg: on the stance of Lesbian Gay Bisexual and Transgender Rights before the European Court of Justice’, 5 European Law Reporter (2008) 174, at 181: ‘[a] closer look reveals however that the Court remains rather restrictive in its approach towards gay rights. For the judgment boils down to a rather demure statement communicating little more than the obvious’.

Maruko , supra note 6, at para. 69.

Ibid., at para. 59.

The self-serving character of such privileges becomes apparent when one looks at a case that raised widespread media attention in Austria, shortly after the country had enacted legislation for civil partnerships for homosexual couples in 2010. Immediately after the enactment of the new law, Mrs Johanna Dohnal, a former Minister for Gender Equality, contracted such a partnership with another female politician, Mrs Annemarie Aufreiter. Three weeks after the civil partnership had been concluded, Mrs Dohnal died at the age of 71. Her ‘widow’, who, as a member of the Vienna City Council, earns her own salary and accumulates her own pension entitlements, applied for a survivor’s pension that would amount to 60% of Mrs Dohnal’s pension as a former member of the Federal Government (i.e., roughly € 13,000 per month). The request was turned down because the applicable legislation provides that, in order for Mrs Aufreiter to be entitled to a survivor’s pension, the couple would have had to live in a marriage or civil partnership for at least three years. Not happy with this decision, Mrs Aufreiter has filed a constitutional appeal, claiming that, civil partnerships between homosexuals not having been possible before 2010, it was not possible for her to contract such a partnership with Mrs Dohnal earlier. She considers herself to be a victim of indirect discrimination and demands that the criterion of the registered partnership having lasted for at least three years should not be applied to her case. The case is pending with the Austrian Constitutional Court ( Streit um Witwenpension für Dohnal-Partnerin , Die Presse , 25 Aug. 2010).

Case C–236/09, Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres ECJ (Grand Chamber) 1 March 2011, available at: http://curia.europa.eu/.

E.g., the Financial Times commented on 4 Feb. 2011 in anticipation of the CJEU’s judgment, ‘No matter that women’s greater longevity is a biological fact. No matter that annuities ultimately pay the same to women as to men over their lifetimes. It seems that an unelected, unaccountable cabal of judges in Luxembourg has given itself the power to overturn basic principles of risk and insurance – and overrule the laws of nature. . . . Juliane Kokott, the advocate general, and her learned friends are actually ruling on the legality of the derogation in the Equal Treatment Directive (2004/113/EC, OJ (2004) L373/37) that permits the use of gender-based statistics in setting all insurance premiums and benefits. So, if they deem this discriminatory, women will have their car insurance premiums raised to subsidise boy-racers from Middlesbrough to Milan. Like so many illogical ideologues, Kokott & co are in danger of reading discrimination into every differential.’

Cf. the press release of CEA, the European Insurance and Reinsurance Federation, of 30 Sept. 2010, available at: www.insuranceeurope.eu/uploads/Modules/Newsroom/100930-ecj-opinion.pdf, which commented on Mrs Kokott’s conclusions as follows: ‘[t]he core principle of risk assessment is that people in comparable situations are treated equally and those in different situations are treated differently. If this risk-based, factual principle is not maintained, premiums will increase, coverage will decrease and some products will be withdrawn from the market entirely. Insurers must be able to calculate their premiums in a fair and sustainable way, using all relevant factors.’ (‘CEA warns of consumer detriment if insurers can no longer differentiate on basis of sex’ , press release 30 Sept. 2010, available at: www.insuranceeurope.eu/uploads/Modules/Newsroom/100930-ecj-opinion.pdf.

E.g., OpenEurope, a British think tank, warned that ‘UK insurance providers will need to raise an extra £936m in capital to cover themselves against the new uncertainties created in the market’ and that ‘these costs will be passed on to consumers’. It estimated that ‘on average, a 17 year old female driver will have had to pay an extra £4,300 in insurance premiums by the time she is 26 as a consequence of the ruling, while male drivers would (only) save an estimated £3,250 over the same period of time’ : OpenEurope briefing note, 25 Feb. 2011, available at: /www.openeurope.org.uk/Content/Documents/PDFs/ECJgenderdirective.pdf.

Cf. J. Cornides, ‘Verdunklungsgefahr?’, in G. Lang and M.F. Strohmer (eds), Europa der Grundrechte? (2003). at 116–134.

E.g. Germany: Art. 3(1) of the Basic Law (Grundgesetz):’[a] lle Menschen sind vor dem Gesetz gleich’ ; France: Déclaration des droits de l’homme et du citoyen, art. premier: ‘ les hommes naissent et demeurent libres et égaux en droits’.

‘Der Unisex-Unsinn’, Frankfurter Allgemeine Zeitung , 5 May 2011.

Bristol County Court, Hall & Preddy v. Bull & Bull , 19 Feb. 2011, Case No. 9BS02095, available at: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/hall-preddy-bull-judgment.pdf.

The appeal was decided (and the judgment upheld) while this article was being reviewed: CA (Civil Division), 10 Feb. 2012 [2012] EWCA Civ 83. References in this article are to the judgment of the Bristol County Court.

The UK introduced ‘civil partnerships’ as a specific form of union between two people of the same sex in 2004.

COM(2008)0426.

As regards the case of England, homosexual acts were a capital offence, i.e., threatened by capital punishment, until 1828. They remained a criminal offence until 1967. Until then, no hotel owner would ever have thought of letting a double bed room to two people of the same sex if he had reason to suspect that they would use it to engage in homosexual intercourse. The abolition of criminal sanctions meant that the homosexual act was no longer punishable, but this still left everybody free to maintain and express moral objections.

The Civil Partnership Act was adopted only in 2004 – before this, there was no legal recognition of homosexual relationships at all. A legal provision according which everybody ( including those privately holding moral objections against homosexuality) must provide equal treatment to registered same-sex couples and married couples even in the context of private contractual relations became law through the adoption of the ‘Equality Act (Sexual Orientation) Regulations’ only in 2007, and there is nothing to indicate that before 2007 such equal treatment had been part of any generally accepted or respected moral code.

Not only did the EHRC fund the claimant’s litigation in the first instance, but it even filed, as a reaction to the defendant’s appeal, a cross-appeal demanding that the compensation for the claimants should be increased from £3,600 to £5,000. It was only following massive public criticism that the Commission withdrew this cross-appeal, explaining that it had been based on an ‘error of judgement’ by its legal team: ‘Gay couple end hotel payout claim’, The Independent, 11 Mar. 2011.

Cf. para. 14 of the Judgment, supra note 25.

‘Christian hotel owners who turned away gay couple face business ruin after torment by hate callers’, Daily Mail , 26 Jan. 2011.

Harding, ‘Internet lies are destroying us, say Christian hoteliers’, Daily Mail , 28 Jan. 2011.

Woods, ‘Inside a most un-PC B&B’, The Telegraph, 28 Jan. 2011.

Cf. para. 27 of the Judgment, supra note 25.

Earlier this year the Belgian newspaper La Libre Belgique reported that homosexuals have become the European capital’s preferred tourists. The reason is that they have more money to spend than any other group in society. According to the report, gays and lesbians have the ‘epicurian’ spending habits of businessmen: they do twice as many city trips than average tourists, and a third of them make even 5 or more such trips per year. Two thirds of them spend more than €3,000 per year on their holidays: Meulders, ‘Bruxelles cible le tourisme gay’, La Libre Belgique , 13 May 2011.

E.g., a wide choice of hotels in Cornwall openly advertising their ‘gay-friendliness’ is found at www.gayaccommodationcornwall.co.uk/. As a result in casu there was no particular necessity at all for the claimants to be accommodated in the defendants’ hotel, even assuming that they wanted to spend their weekend precisely in the surroundings of Penzance.

In this context, note should be taken of a judgment recently issued by the supreme judicial instance of Germany, the Bundesgerichtshof (BGH), in which it was confirmed that hotel owners are completely free in accepting or refusing someone as their guest. A claim for compensation arises only in cases where a confirmed booking is cancelled (but not if the person requesting the booking provided false information). The case concerned an action brought by Mr Uwe Voigt, leader of an extreme right-wing party, whose booking was refused by a hotel owner who did not want to have a prominent neo-Nazi in his hotel, fearing that other guests might cancel their bookings. The BGH found that this fear was sufficient justification for the hotel owner to refuse the booking, even though the German Basic Law (Grundgesetz) explicitly prohibits discrimination ‘on grounds of political opinions’. The fact that Mr Voigt had already in previous years spent holidays in the hotel and that, on these occasions, his behaviour had never given offence to any other guest, was not considered relevant by the Court, which emphasized that the defendant’s right to reject a booking of an undesirable guest was grounded in his fundamental rights, namely the rights to private autonomy, property, and free exercise of his profession. Given that the provision in Art. 3 of the Grundgesetz treats discrimination on the grounds of sexual orientation and political opinion in exactly the same way, it can safely be assumed that the judgment would have been the same if the hotelier had turned down a homosexual instead of a neo-Nazi: BGH, 9 Mar. 2012 – V ZR 115/11.

Cf. the European Commission’s press release of 1 Mar. 2011 (Ref.: IP/11/242): ‘EU Justice Commissioner Viviane Reding meets European business leaders to push for more women in boardrooms’. Another press release of 9 Mar. 2012 ( ETW/12/0309) and a Consultation on Gender imbalance in corporate boards in the EU launched on 5 Mar. 2012 seem to indicate that the Commission is now seriously considering making such a proposal.

De l’ésprit des loix, XXIX, 16: ‘ Les lois inutiles affaiblissent les lois nécessaires’ (1755 edn) .

For instance, the EU has two specialized agencies promoting ‘anti-discrimination’ policies: the Fundamental Rights Agency (FRA) in Vienna (according to OpenEurope, the proposed budget for 2011 is €20 million), and the European Institute for Gender Equality (EIGE) in Vilnius (proposed budget for 2011: €7.5 million). At national level, each of the EU’s Member States has its own equality agency. In the UK, e.g., this agency is the Equality and Human Rights Commission (EHRC, with, in 2009, an annual budget of £70 million, and 400 employees and rising).

One of the most egregious examples is ILGA Europe, an advocacy group promoting the vested interests of homosexuals. Between 2007 and 2010, ILGA has received a total of €4,107,457.12 from the European Commission in the form of ‘bulk grants’. Each year, the organization hands in its ‘annual work programme’ to the Commission, and receives a grant amounting to roughly 85% of its forecast expenditure. Under these conditions, it seems hardly appropriate to describe ILGA as a ‘non-governmental or ganization’, or to speak of it as ‘civil-society’.

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Introductory Essay: The Anti-Apartheid Movement and the Congressional Black Caucus. ... TransAfrica is a foreign policy advocacy organization designed to increase awareness of issues concerning Africa and the Caribbean. ... ask the students to list comparisons of Blacks' struggles and resistance to racial discrimination in South Africa and ...
Three Case Studies on 'Anti-Discrimination'
An 'anti-discrimination law' that allows some people to act in accordance with their honourable and respectable views, while prohibiting others from acting with their equally honourable and respectable views, is, quite obviously, in and of itself discrimination. ... E.g., the representative of the advocacy group ILGA-Europe spoke of a ...
"Just Let Us Be": Discrimination Against LGBT Students in the
The anti-discrimination ordinances that have ... similarly recalled that when she presents papers on LGBT ... 2016; Human Rights Watch interview with Mary Tangente, advocacy officer, GALANG ...
PDF Discrimination: Protecting and Promoting Inclusive Strategies in
Policy, and Advocacy Effective Date: 2018 Status: Revised Position Statement Written by: ANA Center for Ethics and Human Rights Adopted by: ANA Board of Directors Purpose Discrimination in any form is harmful to society as a whole and in opposition to the values and ethical code of the nursing profession, which directs the nurse to ...