SO478 - week 14

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These are my notes from January 23 for SO478 at the London School of Economics for the 2017-2018 school year. I took this module as part of the one-year Inequalities and Social Science MSc program.

The usual disclaimer: all notes are my personal impressions and do not necessarily reflect the view of the lecturer.

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Equality and discrimination: legal issues

Readings

No notes.

Demarginalizing the Intersection of Race and Sex (PDF)

by Kimberly Crenshaw in 1989.

Legislation against Sex Discrimination

by Nicola Lacey (the lecturer) in 1987

UK 2010 Equality Act (PDF)

Equal Protection Clause of the US Constitution

aka the 14th amendment. 1868.

Prohibition of discrimination in the European Convention on Human Rights

Article 14. 1950/1953.

African (Banjul) Charter on Human and People’s Rights

1981.

Lecture

Given by Nicola Lacey, School Professor of Law, Gender and Social Policy in LSE’s Department of Law

• her specialty is criminal law
• criminality has a lot to do with inequality because it comes from this standpoint of justice etc but ofc we know the least well-off members tend to be affected the most
• reconciling feminism and “underreprsentation” of women in prosecution
• equality instruments always implemented with words (legislation etc)
• today: equality and discrim from a legal perspective
  • equality act 2010, just the TOC, very complicated and structured
  • US 1868, 14th amendment, equal protection clause: no state shall make laws abrdiging privileges of citizens + deprive right to life/liberty/property w/o due process
  • key question when it comes to legal guarantees of equality: who does it pertain to? especially relevant in the US case
• european human rights convention 1950/3, article 14, sets out equality w/o discrimination, but only where relevant to the rights set out in THIS convention
  • also remember that a lot of these conventions/constitutions etc came as the result of upheaval
  • US civil war, WWII
• CEDAW:
  • states who accept convention commit to ending discrimination against women (by anyone) in various ways
• equality act: protected characteristics include
  • age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation
  • also political affiliation is missing which is a tricky one tbf (what counts as politics … as for any characteristic that is a choice, there has to be some nuance that looks at the intent behind that choice)
  • often the specific chars chosen depend on perceived social problems (eg religion originally in NI but ot england/wales until lately)
  • the question here is: does one regulatory regime fit all of these types of discriminations with very diff histories
  • there are specific exemptions carved out for specific types of age discrim, like forced retirement age
  • notably social class (or other economic factors) omitted, like in most legislation
  • also note that it’s gender reasignment not allowing gender identity (like nonbinary), law is great at producing ambiguity but doesnt like to acknowledge its existence
• def of direct discrimination: treating someone less favourably due to their protected characteristic
  • ambiguity over because: can it be unintentional or does it have to be deliberate
• indirect: accumulated rules, practices, institutions, applied formally neutrally but in practice result in exclusion etc when you dont have a good reason (“effects discrim”)
  • eg height requirements would discriminate based on sex despite seeming neutrality in terms of protected chars
  • have to show that it’s not a “proportionate means of achieving a legitimate aim”
    • eg firm having white men at the top because they get a biz advantage cus their clients like that (currently treated as illegal but the line is fuzzy, lots of discretion on part of judge)
• note that although discrim is illegal under this act, damages are usualy small and only if intent can be shown
  • and recall the “proportionate means” & “legitimate aim” lots of room for leeway
• quote by anatole france: law forbids rich as well as poor to sleep under bridges, beg in the streets, steal bread
  • formal inequality can ofc disguise or rationalise substantive ineq
  • can we move from treatment as an equal toward actual legal treatment
  • opps or outcomes?
  • resources, welfare, wellbeing, capabilities?
• concepts of legislation against discrim
  • status (lack of formal equality)
  • direct (disparate treatment)
  • indirect (disparate impact)
  • reverse discrim (compensation for past discrim, affirm action etc)
  • right now, lots of practical difficulties in actually having quotas or anything DUE TO equality law
• q for nicola on whether things have changed since her article was published ~30 years ago
  • legal regime hasnt really changed tho a few things have expanded
  • she thinks it might have gotten worse, harder to enforce laws at the low level cus of labour market changes

Seminar

• how are equality/discrim related to each other
  • antidiscrim is a subset but not sufficient condition for equality
• is the law capable of encoding adequate conception of equality
  • there are some areas where it fails esp more private areas like household but can have symbolic effect even if unenforceable
• assessing potential of law
  • who is covered? citizens etc
  • who can access it
  • who implements it and how much leeway do they have
  • gaps in whats included or not
  • law can itself be a mechanism for ineq eg property rights

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