Non-discrimination is linked to equality and
to providing special attention to vulnerable
groups in order to secure actual equal treatment. Discrimination is unacceptable even
when it is not intentional, and, by virtue of
the state obligation to protect, states are
accountable even if the discrimination is
caused by a private actor. At the work place,
for instance, a private employer cannot
discriminate against a woman due to her
marital status and the fact that she is in her
reproductive years. If that happens, the state
has the obligation to intervene. The lack
of action by the state to prevent this type
of discrimination is a breach of the right to
non-discrimination and the violating state
can be held accountable.
Discrimination by private actors is especially
relevant to health issues, including reproductive health issues, as it is forbidden to
deny a person access to health care based
on this person’s attachment to a particular
group, nationality, gender, age, HIV-status
etc. For example, if health professionals
deny young unmarried women access to
contraceptives based on marital status, a
case of discrimination under state responsibility could be made. The state must ensure
such incidents do not happen by passing
non-discrimination legislation as well as
ensuring suitable contractual provisions and
education initiatives.
It is prohibited to deny women access to
healthcare, including reproductive healthcare, because they are women. This is
understood to mean that the state cannot
deny health services that only women need,
such as services related to pregnancy, pregnancy related complications, and post abortion care. It is also forbidden to discriminate
against women due to their marital status or
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for any other reason, such as HIV status or
pregnancy.
Non-discrimination obligations go beyond
states’ non-interference with individuals’
rights. Arising from their obligations to
combat discrimination, states have a duty
to ensure that health information and services are made available to all individuals,
including marginalized and excluded groups.
It is also crucial that states take action and
ensure that the laws passed and their policies not only do not discriminate against
specific groups but also secure actual equal
treatment. Laws must take into consideration de facto differences to guarantee
equality. Furthermore, states must take
steps to empower women to make decisions
in relation to their sexual and reproductive
health free of coercion, violence and discrimination. It is the state that has to ensure
that women and girls can make these decisions free from discrimination. If women and
girls do not have this right, the state must
take measures to ensure that they do by, for
example, using affirmative measures. The
principle of non-discrimination also obliges
the state to make sure that all groups have
similar access to (reproductive) health care,
irrespective of sex, age, ethnicity, domicile,
disability, etc. This entails among other
things making sure that even the poorest
person living far from urban centres can
access reproductive health care.
Non-discrimination and equality measures
have to be thought through the entire state
apparatus. It is not sufficient for a piece of
legislation to be for example gender neutral if it in practice discriminates against
women or other groups. Laws and policies
approved by states have to promote de facto
equality, which is to say that results and
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