Rethinking Sex Equality as a Human Right

Abstract

This article critically examines the way the principle of sex equality is interpreted by several international, (quasi) judicial bodies. It argues that the current, mainly formal approach to equality and discrimination is in need of a fundamental reinterpretation towards a more substantive one, as formal equality often leads to the exclusion of those, like women, who do not fit the dominant models or standards. Though the role of the courts in striving for substantive legal equality is necessarily limited given the division of powers between the courts and the legislature in the democratic state, courts can contribute more than they currently do. In this respect it is held that the concept of indirect discrimination as developed in the case law of the ECJ provides openings for a more substantive approach to equality and discrimination and should be adopted by human rights courts as well. Further, the article argues for a new, asymmetrical model of equality analysis, based on the acknowledgement that the prohibition of discrimination is primarily directed at protecting historically ‘sensitive’ groups (like women), that is groups which have experienced or are still experiencing systemic forms of discrimination and disadvantage and not just isolated instances of disadvantageous treatment.