International Journal of Discrimination and the Law

Against the backdrop of the more recent similar expansion of the anti-discrimination framework at EU level, this article reviews the operation of the last five years of Ireland's expanded anti-discrimination framework which brought an extension of the discriminatory grounds from two to a total of nine. In particular, it raises questions as to the claimed effectiveness of the ED framework from the perspective of those, particularly women, who identify across multiple grounds. This is evidenced through a review of some of the conceptual and practical problems that inhere in an anti-discrimination structure that is predicated upon a strict categorical-comparator approach to identity and disadvantage. In particular, the way in which women with compound identities experience intersectional discrimination remains unaddressed by dominant conceptions of single category definitions of direct and indirect discrimination. Yet the acknowledged reality of women as victims of multiple discrimination appears to be outwith the structures of the newly expanded legislation. Thus, far from being an effective basis for addressing multiple discrimination, the Irish experience demonstrates again, that at the level of individual enforcement, the well-worn criticisms of the anti-discrimination framework remain firmly embedded in the expanded regulations.

Equality was amongst the founding principles of the European Economic Community, based on the need for freedom of movement and fair competition rather than on adherence to ideals of social justice. The recent legislative developments which have introduced laws prohibiting discrimination based on race, sexual orientation, disability and religious belief represent not only the inclusion of many more groups within the legislative matrix, but also a challenge to the traditional ideas of what is meant by equality and to institutional ways of addressing discrimination. This article will consider how the very ‘private’ characteristics of belief and sexual orientation may invite considerations of freedoms and rights within a rights based discourse, albeit within the workplace. It will also draw attention to the impending problems of multiple discrimination.

The concept of equality has been central to the development of the European Union social agenda to such an extent that it is now universally acknowledged as a constitutionally-embedded norm. This paper discusses how equality has driven important legislative, judicial and institutional change in the EU, particularly for women, and how the success of the gender campaign has inspired important changes in respect of other marginalised groups. The paper focuses, in particular, on how the concept of equality offers an appropriate, meaningful and effective basis on which to enhance the status of children in the EU.

Following a formal analysis of how children fit within the equality/nondiscrimination paradigm at EU constitutional level, the paper moves on to discuss more critically how these provisions are transposed into tangible entitlement for this category of citizens. It explores mainstreaming as a potential mechanism for achieving substantive equality for children, again alluding to the successes of the gender campaign in this respect. The paper concludes by speculating on how a mainstreaming strategy might be adapted and applied in favour of children and discusses the advancements that have already been made in this regard.

With the passage of the Human Rights Act 1998 (HRA), a new era has begun as a distinct rights culture has come to pervade UK law, society and political life. The purpose of this article is to test the progressive credentials of the HRA in the light of the long-standing and stringent critique of rights discourse by feminists through an assessment of the legislation's capacity to improve the protection of the fundamental rights of women and sexual minorities. Using data emerging from applications of the HRA before the courts, the paper carries out a gender audit of the Act to weigh the balance of its positive and negative implications for women and minority litigants and highlights areas of activity in which claims might be further advanced in terms of human rights. Employing feminist legal scholarship to frame its analysis, the paper investigates the examples of sexual violence, reproductive rights and the rights of transgender persons and sexual minorities, in order to explore the reconfiguration of conflict of rights situations under the HRA and the balancing of competing right claims as they are beginning to emerge in the new rights culture.

The imposition since 1998 of a variety of positive equality duties upon public authorities has attracted comparatively little academic attention. However, these duties are a central part of current government equality initiatives, increasingly constitute a major part of the work of the UK's equality commissions, and have been described as an essential part of a new ‘fourth generation’ of equality legislation. It now appears likely that a positive duty to promote gender equality will soon be imposed upon public authorities, which will complement similar race and disability duties. Will the introduction of this positive gender equality duty add to, detract or complement existing statutory provisions? Given the danger that ‘soft law’ initiatives may undermine existing anti-discrimination controls, will the duty provide a clear steer to public authorities, or will it lack teeth, substance and direction, and possibly even prove counter-productive?

Such positive duties are designed to compensate for the limitations of existing anti-discrimination law, by requiring the taking of positive steps to promote equality and eliminate discrimination, rather than just compelling a reactive compliance with the letter of the (equality) law. The justifications in principle for the introduction of such duties are strong: for the first time, the introduction of a positive gender duty will impose a clear legislative obligation upon public authorities to adopt a substantive equality approach and to take proactive action to redress patterns of disadvantage linked to gender discrimination. Serious concerns do however exist as to the extent to which such duties can be enforced, and the danger that they will simply encourage greater bureaucratic activity at the expense of real change. The proposed gender duty, as with the other duties that have been introduced, is no panacea. Nevertheless, it does constitute a good start, can serve a useful function by empowering public authorities to take positive action, and if effectively used will be a very valuable point of pressure to push for better things.

There has been a dramatic reshaping of the political landscape in the United Kingdom since 1997. This has brought about substantial changes in equality law and practice, both nationally and regionally. One of the most talked about innovations has been the adoption of mainstreaming as a strategy for the promotion of equality. In the United Kingdom, this has produced a complex, varied and, on occasion, obscure pattern of duties in respect of mainstreaming. Yet despite this, mainstreaming is delivering gains to previously marginalized groups within society, though the extent of those gains varies according to the context and the type of mainstreaming involved. What has to be avoided at all costs, however, is a situation where equality is neglected and disregarded. This article, therefore, explores the case for securing mainstreaming and investigates how effectively mainstreaming in the United Kingdom has been safeguarded against a hostile political environment.