5. Some human rights treaties go even further and expressly require positive
action on the part of States to eliminate discrimination on prohibited grounds.119
However, certain treaties protect equality only in the enjoyment of identified
substantive rights (commonly described as ‘ancillary’ protection). 120 This
means that instead of a free standing right to equality, protection against
discrimination is available only in relation to the application of the other rights
protected by the relevant treaty. This can have the effect of making equality
and non-discrimination more marginal.
6. It is generally understood that mere formal equality – that is a requirement that
there be no difference in treatment as between persons in like situations (or
‘direct discrimination’) - is not sufficient to guarantee real equality. Simple
equality of treatment, without regard to the differences between the persons or
groups of persons concerned, may operate so as to entrench existing
disadvantages. Thus, a prohibition on wearing head gear at work imposed on
all employees is, formally speaking, equal treatment (so long as no exceptions
are made) but can readily be seen as disadvantaging those groups for whom
the wearing of head gear might have some religious or cultural significance.
7. The Human Rights Committee has interpreted ‘discrimination’ to mean ‘any
distinction, exclusion, restriction or preference which is based on any ground
such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status, and which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise of all
persons, on an equal footing, of all rights and freedoms’.121 Also included
among the prohibited grounds in Article 2 ICCPR are sexual orientation and
gender identity.122 The concept of ‘other status’ has been given a broad
meaning to include not just intrinsically personal qualities but also other such
as marital professional and financial status.123
Protecting Against Indirect Discrimination
8. Protection against ‘indirect’ discrimination provides a better opportunity to
challenge entrenched discrimination arising out of structural factors. Indirect
discrimination is perhaps best explained by a policy, rule or practice that is
essentially neutral on its face, in that in theory it applies to everyone, which,
however, may be indirectly discriminatory if it has a disparate impact on people
belonging to a particular group.
119
Examples include the International Convention on the Elimination of All Forms of Discrimination
(CERD) and the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW).
120 E.g. Article 2(2) ICESCR, Article 14 ECHR.
121 General Comment No.18, HRI/GEN/1/Rev.9 (Vol. I) p.195 (1989), para 7.
122 Communication No.488/1992, Toonen v Australia, 31 March 1994; Concluding Observations on
Kuwait, CCPR/C/KWT/CO/2.
123 E.g. European Court, Rasmussen v Denmark, 28 November 1984; Van der Mussele v Belgium, 23
November 1983.
41
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