Berkeley Comparative Equality and Anti-Discrimination Law Study Group Annual Conference (June 2018)

Capacity-Building or Empowerment

The need to build capacity within organisations was identified by some speakers. Susan Sturm in her keynote presentation spoke of the paradoxes central to change work around equality, and the need for legal institutions to have systems for capacity-building, enabling them to use the ‘paradox’ as a lens through which to engage directly with affected communities, and to build research and reflection into the way their systems operate.

Illustrating part of Susan’s argument, Brynhildur G. Flóvenz, lamented that when, in order to address the gender imbalance in Icelandic courts, parties were required to nominate both men and women as judges, most continued to nominate men in primary position and women only as alternatives. This points to the importance of change coming from within institutions and systems, rather than being imposed from outside.

Simon Rice and Belinda Smith noted that one problem with Australia’s individual complaints mechanism is that duty-bearers are expected to have the commitment and capacity to change their practices but often they do not, and the law currently does not enable them to develop it.

Systems of Power

The concept of power was highlighted in different ways by several papers. Maggy Barrère Unzueta concurred with Solanke on the importance of power to a concept of discrimination. However, rather than viewing it solely as stigma, she argued for the retention of discrimination as ‘treatment’. Treatments, she stressed, can also be understood in terms of their meaning within a system of power and they are familiar concepts to legal cultures.

The inadequacy of neatly defined lists of protected attributes was noted by Isabel Karpin and Karen O’Connell, who pointed out that individuals don’t experience discrimination as isolated incidents that fit into the identity categories of protected attributes, but rather as complex experiences of intersecting categories, interwoven with the social and material world and bound up with hierarchies of power which have intergenerational effects. The importance of power to understanding intersectionality was also addressed by Beth Goldblatt and Linda Steele who, noting that menstruation discrimination is deeply intersectional (particularly for women with disabilities, prisoners and detained refugees, girls in educational institutions and homeless women) pressed the need to take care when addressing it, so as not to reinforce hierarchies of power between groups of women.

Kristen Barnes, in her discussion of measures taken in Marseilles and in Texas to ensure minorities can share, inhabit and choose their place in the city, together with the social, economic and political opportunities that flow from being in a place, envisaged law being used to positively structure space and thereby norms of behaviour.

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Working Between and Across Legal Categories and Disciplines

Another theme that arose from several papers was the benefits of looking for possibilities beyond and between traditional siloed legal categories. Greta Bosch argued that an interdisciplinary approach is necessary to make substantive equality work in a transformative way. Describing a pilot module offered to students with academics from Law, Business and Psychology, she argued that only an interdisciplinary approach can do the work needed to understand disadvantage, design appropriate legal mechanisms and then implement them effectively in organisations.

Joelle Nwabueze discussed the role that intellectual property law can play in moderating the unequal power relationship between employers and employees, while Yun-Hao Hsin compared the interaction of privacy and discrimination laws in the management of data collected from employment tests such as polygraphs, integrity tests and DNA. Liam Elphick described the challenges of gender identity discrimination in a sporting context, and Susan Banki and Leila Morsy argued that, aside from being outside their country of nationality, African-American men have a plausible claim to meet the definition of a refugee set out in the Refugees Convention because they are subject to racially-based, state-sponsored, systemic violence.

Jurisdictional and Cultural Differences

Finally, several papers highlighted differences between jurisdictions and legal cultures. In addition to papers already mentioned discussing aspects of Australian, United Kingdom and United States regimes, Laura Carlson compared equality law in the UK and Sweden where public education, rather than complaint-resolution is the preferred mechanism. She argued that the differences cannot be explained simply by the common/civil law dichotomy. Unlike the UK, Sweden doesn’t have a strong tradition of private enforcement of law, or of individual rights, and without an expectation that courts should enforce the law for individuals, legislation’s effect is limited.

Amy Barrow described how the Hong Kong government has also preferred to use educational and policy measures to address sexual orientation and gender identity discrimination, resisting calls to prohibit it in legislation. She attributed this to traditional Chinese cultural values that strongly influence attitudes towards gender and sexuality in Hong Kong, together with a Christian ethos that still pervades public institutions. Bin Wang spoke about the benefits and limitations of universities in China having mandated quotas of rural students in order to address disparities of income and school standards between rural and urban areas.

And in a positive vein, Susanne Burri described how the Dutch Institute for Human Rights has played a key role in uncovering the extent of direct discrimination based on pregnancy, particularly in the context of flexible work and fixed term contracts. It found a lack of awareness and readiness to report such discrimination and took measures to address this. Susanne argued this case demonstrates what can be done when equality bodies are well-resourced.

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