International Journal of Discrimination and the Law

Sage Publications, Inc.
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Latest documents

  • Rien que des mots: Counteracting homophobic speech in European and U.S. law

    Adopting a comparative perspective, this article examines legal means and practices of challenging homophobic speech in European and U.S. law. This exercise revolves around the study of major cases concerning homophobic speech from the law of the European Court of Human Rights and broader legal framework within the Council of Europe (the CoE), the Court of Justice of the European Union (EU) as well as the United States Supreme Court (along with a broader scrutiny of U.S. law in comparative perspective with European (CoE and EU law) in recent years. The article concludes that the concepts of (1) hate speech (in constitutional, administrative and criminal settings) (2) direct discrimination and (3) harassment (in labour and anti-discrimination law) will be central in the strategic litigation of LGBT organizations seeking to redress the climate of homophobia via various legal avenues in both Europe and the U.S. While in the settings of European law, all three concepts – depending on the context – can benefit victims of homophobia in their judicial redress, U.S. law offers coherent protection in its employment law framework, even though this remains in need of further strengthening.

  • Critical issues arising from litigating HIV/AIDS discrimination in Nigeria

    The evolution of HIV/AIDS policy and legal frameworks in Nigeria has happened in distinct phases. The first period between 1986 when the first AIDS cases were reported and 1996 was uneventful and generally characterized by a distinct lack of appreciation of the spread and impact of the disease. During the following decade, notable achievements included the institutionalization of multisectoral responses at all levels of government and the introduction of national and sub-national policies and programmes. Comparable breakthroughs have been slow to occur in the legal environment despite evidence of widespread HIV/AIDS discrimination. This article analyses the legal mechanisms for addressing HIV/AIDS discrimination in Nigeria and argues that even with the emergence of HIV/AIDS-specific anti-discrimination legislation, the protection for persons living with or affected by HIV/AIDS is far from being secured.

  • Winter 2021
  • Critical analysis of transformative interventions redressing apartheid land discrimination and injustices in South Africa: From land segregation to inclusivity

    In 1994, as soon as South Africa became a democratic country, the first step taken by the new democratic government was to introduce various transformative constitutional and legislative interventions that sought to redress all the past apartheid discriminatory laws. This paper looks at these interventions by critically showcasing how they are being used to transform and reform land by ensuring inclusivity and equity in South Africa where the previously denied, disposed and segregated Black majority have access and are benefitting broadly.

  • Religious freedom and the right against religious discrimination: Democracy as the missing link

    The article puts forward a novel democratic framework to rethink the relationships between religious freedom and religious discrimination. First, it makes a case for a unifying normative basis for all religious interests grounded in a democratic framework, which emphasises the dual dimension of religious interests, both as negative rights protecting individual autonomy against interferences as well as positive rights of participation. Second, it builds upon this democratic framework to revisit the relationships between discrimination law and religious freedom and guard against trends to subject discrimination law claims to preliminary (higher) thresholds. Third, the article examines how contextual balancing exercises between competing interests should (and to a large extent have) become a key unifying feature of both routes and draws from the democratic framework insights as to how these balancing exercises should be carried out.

  • Vulnerability, legal need and technology in England and Wales

    This paper explores legal need and legal advice in England and Wales during the COVID-19 pandemic. It uses the lens of vulnerability theory to examine the ways in which this crisis exposed pre-existing fragilities between the state and its relationship with the advice sector, and the individuals who experience social welfare problems. The paper commences by exploring Fineman’s vulnerability thesis and its application to those experiencing social welfare-related issues, as well as the vulnerability of the systems operating to give advice. The paper then considers the specific context of the COVID-19 pandemic and the impact on needs, and the ability of the sector to meet these needs. Drawing on policy documents, reports and three case studies from law centres in England and Wales, it discusses the concept of legal need and the realities being experienced. These case studies assist us in being able to critically consider the topics of vulnerability, changing needs and the role that technology is, and can play during the pandemic and beyond. Lastly, the paper points to the need for a critical consideration of the sustainability and format of legal advice in addressing legal need in the post-COVID-19 landscape.

  • Vulnerable bodies and invisible work: The Covid-19 pandemic and social reproduction

    The restrained state has always sought to devalue socially reproductive work, often consigning it to the private family unit, where it is viewed as a natural part of female relational roles. This marginalisation of social reproduction adversely affects those performing it and reduces their resilience to vulnerability. The pandemic has largely shattered the liberal illusions of autonomous personhood and state restraint. The reality of our universal embodied vulnerability has now become impossible to ignore, and society’s reliance on socially reproductive work has therefore been pushed into public view. However, the pandemic has also exacerbated harms and pressures for those performing paid and unpaid social reproduction, creating a crisis that demands an urgent state response. As it is argued in this paper, the UK response to date has been inadequate, illustrating an unwillingness to abandon familiar principles of liberal individualism. However, the pandemic has also created a climate of exceptionality, which has prompted even the most neoliberal of states to consider measures that in the past would have been dismissed. In this paper, it is imagined how the state can use this opportunity to become more responsive and improve the resilience of social reproduction workers, both inside and outside the home.

  • Reimagining state responsibility for workers following COVID-19: A vulnerability approach

    In this article it is argued that the COVID-19 crisis offers an important opportunity for engagement and reflection on the operation and effectiveness of laws regarding the workplace in the UK and beyond. The crisis underscores the temporality and partiality of labour law measures, and the need for a reimagining of that law based on more sustainable principles. I argue that this reimagination should coalesce around a human-centric approach to law, and the recognition of the need for deep and varied institutional support for workers. It is argued that these principles have been adopted historically in the context of health and safety law, but have not always been well applied, particularly in the context of the pandemic. In any event, the adoption of these principles and the greater integration of health and safety and labour law would encourage states to better promote worker agency and resilience and hence move towards meeting the aspirations of vulnerability theory.

  • The jurisprudence of universal subjectivity: COVID-19, vulnerability and housing

    Drawing upon Martha Fineman’s vulnerability theory, the paper argues that the legal claims of homeless appellants before and during the COVID-19 pandemic illustrate our universal vulnerability which stems from the essential, life-sustaining activities flowing from the ontological status of the human body. By recognizing that housing availability has constitutional significance because it provides for life-sustaining activities such as sleeping, eating and lying down, I argue that the legal rationale reviewed in the paper underscores the empirical, ontological reality of the body as the basis for a jurisprudence of universal vulnerability. By tracing the constitutional basis of this jurisprudence from Right to Travel to Eighth Amendment grounds during COVID-19, the paper outlines a distinct legal paradigm for understanding vulnerability in its universal, constant and essential form – one of the central premises of vulnerability theory.

  • COVID-19 magnifies the vulnerabilities: The Brazilian case

    This paper discusses inequalities of the health system in Brazil and advocates that now, more than ever in light of the Covid-19 pandemic, the world needs to put in place a more collaborative and egalitarian way of financing health research and investments in public health systems. The role of the state and institutions in the design of public policies for the realization of social rights is debated in the face of the economic and political crisis. Here we draw upon Martha Fineman’s vulnerability theory and Thomas Pogge’s view on justice with regard to health.

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