Abstract
As we write this introduction, equality and discrimination are much in the news - for good or ill. Hate crimes have surged in a number of western countries, partly attributable to the appalling situation in Gaza; 1 the legality of new anti-homosexual legislation is before the courts in Uganda (where the Supreme Court has just upheld most of the Anti-Homosexuality Act of 2023) 2 and Ghana (a Bill having been passed at the end of February but which awaits a Supreme Court ruling and perhaps a presidential veto); 3 and EDI or DEI seems to be a target of the apparent ‘culture wars’ ahead of the US and UK elections. 4 More progressively, Thailand looks set to become the first country in south east Asia to fully legalise same-sex marriage after the lower house overwhelmingly supported a marriage equality bill. 5 Furthermore, Women’s History Month has just drawn to a close, as has, within Legal Academia, the 34th Annual Conference of the Socio-Legal Studies Association (SLSA) which this year was hosted at the University of Portsmouth and which included a number of equality papers within and beyond its Equality and Human Rights stream. The SLSA, a charitable organisation that aims to advance education and research in the field of socio-legal studies, has a membership of over 1700 people across 20 countries. As stated on this Journal’s Aims and Scope web page, ‘[t]he International Journal of Discrimination and the Law (IJDL) presents research that engages critically with the broad field of discrimination, equality and law. The journal provides a forum for consideration of this highly topical area from a broad range of perspectives (including doctrinal, conceptual and socio-legal research)’ and we were delighted to be afforded the opportunity to promote the journal at the conference.
Whereas the last few issues have each had, at least, a broadly common theme (the Special Issue on Inclusive Post-Secondary Education and Persons with Disabilities in Vol 23, Issue 1-2; a diverse set of papers linked by intersections in Vol 23, Issue 3; and the focus on aspects of family equality in Vol 23, Issue 4), for this bumper issue we return to a more general approach and include, along with research articles, a number of case notes/commentaries.
Our case note/commentary section allows for swift, timely, online first publication and we remain very grateful for the work done by Professor Lucy Vickers and Dr Rachel Horton (the case note/commentary editors) and the publishing team which has enabled, for example, Achas K Burin’s and Shreya Atrey’s report on the mid-February 2024 decision of the High Court in University of Bristol v Abrahart to be published in our OnlineFirst section on March 23, 2024 before forming part of this issue. ‘Unleashing the anticipatory reasonable adjustment duty: University of Bristol v Abrahart (EHRC intervening) [2024] EWHC 299 (KB)’ analyses the claims in negligence and discrimination law following the suicide of an undergraduate at a British university. The background to the case is clearly and concerningly tragic but the effects of the case could be problematic. While the anticipatory nature of the reasonable adjustment duty (under s.20 of the Equality Act 2010) has been reinforced by the case, it is arguable that the bar there may have been lowered too far and that may be compounded by the approach in the case as to what amounts to a university ‘competence standard’. As the authors’ note, ‘[a]lthough arising out of the very specific and tragic facts of this case, the implications of the ruling in Abrahart are far reaching’. 6 We also publish here a commentary on the changes made this year to the British Equality Act 2010. ‘The Equality Act 2010 - changes in 2024 including Brexit-related codification’ (published OnlineFirst in January) considers the unprecedentedly widespread textual changes to the Equality Act 2010 which have been made or are set to be made in 2024, predominantly but not exclusively as a result of Brexit and the effect of the Retained EU Law (Revocation and Reform) Act 2023. Most of the changes are predominantly textual rather than necessarily effectual as they attempt to give national statutory form to matters that would have been decided through compliant interpretation, but the means of doing so may have created further issues. The commentary also notes the more radical introduction of a positive duty on employers to prevent sexual harassment of employees in Section 40A. As noted in the introduction, the legislative comment sets out ‘seven key areas affected by the changes and discusses the underlying reasons for them… [starting] with the definition of direct discrimination (regarding pregnancy, maternity and breastfeeding)’ before going on to consider: changes to the definition of pregnancy and maternity with regard to work; the introduction of associative indirect discrimination; the introduction of the Section 40A positive duty; and codification regarding discriminatory public statements, changes to the Equal Pay (and pensions) provisions, and the definition of disability in Schedule 1. 7 Jamil Mujuzi provides another case commentary on a recent case. ‘Between a ‘flexible’ and ‘rigid’ interpretation of the list of prohibited grounds of discrimination under Article 21(3) of the Constitution of Uganda: Uganda Law Society and 12 others v Attorney General [2024] UGCC 2 (13 February 2024)’ considers the question of whether the constitutional right to freedom from discrimination in the Ugandan constitution should be treated as having an open or closed list of descriptions given its drafting history and the use of literal interpretation. While the judgment in the case holds the former, the analysis put forward here contends that is ‘contrary to the drafting history of Article 21(3), to the literal interpretation of Article 21(3) and to the case law from the Supreme Court on Article 21(3)’. 8
We also present here four longer articles:
In ‘Disability discrimination in the provision of health insurance: Article 25(e) of the UN convention on the rights of persons with disabilities’, Daryl WJ Yang subjects Article 25(e) of the CRPD to analysis and offers an interpretation of it that balances actuarial fairness and the prohibition in the CPRD against all forms of disability discrimination. Exposing the gap in the literature, the article sets out the drafting history of the provisions to support the proposed interpretation and provides examples from national jurisdictions.
Amanuel Tewolde provides a qualitative insight into perceived experiences of racial discrimination of Coloured people in a Johannesburg suburb in ‘Racial discrimination in post-Apartheid South Africa? The stories of Coloured people in Johannesburg, South Africa’. Drawing on in-depth interviews, inspired by protests sparked by the killing of a Coloured woman in a gang-related shooting amid allegations of neglect in policing due to racial identity of the residents of the suburb, and utilising racial discrimination theory and social exclusion theory, the article considers the perception of detrimental treatment across the areas of housing, employment, service delivery, political representation and education. Whilst it is a snapshot, it exposes structural elements and invites further attention.
Policing and racial identity is further considered in ‘An Absolute Shield: Qualified Immunity, Police Misconduct and Black Lives Matter’. In this piece, Donathan Brown et al. outline the background to qualified immunity, draw on statistics relating to the New York Police Department, and consider the retrogressive outcomes of police disciplinary inquiries, especially with respect to communities of color.
In ‘Sexual harassment as a gender inequality and a form of workplace discrimination: A South African perspective’, Grace Mbajiorgu and Rosina Malatjie utilise scholarship and jurisprudence both from South Africa and from other jurisdictions (notably the US) to examine the contributory factors that enable or exacerbate the persistence of sexual harassment despite the existence of purportedly protective legislation. They propose that employers should have a duty to eliminate psychosocial risk factors as well as utilise more efficient grievance procedures.
Looking to the future, while plans are in train for a couple of special issues, we welcome further suggestions and, of course, submissions of case notes/commentaries as well as articles.
The IJDL editors