Editorial: Constitutionalising Equality
| DOI | 10.1177/135822910500800201 |
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
International Journal
of
Discrimination and the Law, 2005, Vol.
8,
pp. 1-6
1358-2291/2005 $10
© 2005 A B Academic Publishers. Printed in
Great
Britain
EDITORIAL: CONSTITUTIONALISING EQUALITY
This
collection
of
articles
was
conceived
as
a
way
of
marking
the
remarkable
changes
that
have
occurred
in
the
field
of
anti-discrimina-
tion
law,
policy
and
practice
over
the
last
few years.
In
their
various
ways
the
articles
set
out
to
reflect
the
transformation
in
the
scope
of
coverage
and
in
the
mechanisms
used
in
the
attempt
to
combat
discri-
mination.
Although
not
directly
prompted
by
the
emergent
Treaty
establishing
a
Constitution
for
Europe,
1
the
controversies
generated
by
that
process
focused
attention
on
the
possibility
of
embedding
fundamental
rights
into
such
an
instrument
and
encouraged
those
who
see
the
future
of
equality
benefiting
from
a
rights
based
discourse.
Whilst
the
articles
consider
a
range
of
topics,
there
are
several
readily
recognisable
common
themes.
For
example,
several
of
the
authors
identify
the
intersectional
rather
than
categorical
nature
of
discrimina-
tion
~
a
factor
which
is
going
to
be
increasingly
important
as
the
grounds
on
which
discrimination
is
prohibited
expand.
Second,
there
is
the
recognition
that
the
traditional
approach
to
the
elimination
of
inequality
has
not
succeeded
and
that
there
is a
need
to
use
other
methods,
including
mainstreaming
and
the
imposition
of
positive
duties.
Third,
it
is
clear
that
the
enactment
of
the
Human
Rights
Act
has
given
an
additional
dimension
to
equality
discourses
but
has
also
highlighted
the
problems
which
result
from
uneven,
indeed,
unequal,
coverage
of
different
groups.
Whilst
it
is
stating
the
obvious
to
observe
that
'equality'
is a
problematic
concept,2
academics,
commentators
and
policy
makers
within
Europe
have
become
familiar
with
the
particular
model
of
equality
adopted
by
the
European
Economic
Community
in
order,
initially,
to
facilitate
competition
and
free
movement
of
workers.
This
model
can
be
seen
in
operation
in
the
context
of
sex
discrimina-
tion
where
equality
was
to
be
achieved
by
the
equal
(that
is,
non-
discriminatory)
treatment
of
men
and
women.
As
the
drawbacks
of
this
approach
became
obvious,
there
were
attempts
to
ameliorate
the
consequences
of
such
an
unsophisticated
mechanism
to
address
the
complexities
of
inequalities.
Unfortunately,
in
trying
to
develop
new
strategies,
the
limitations
of
the
tools
available
also
became
apparent.
Whilst
the
concept
of
indirect
discrimination
pays
lip
service
to
the
different
situations
of
men
and
women
(or
of
members
within
other
protected
groups)
the
rigidities
of
the
legislative
schemes
~certainly
as
originally
prescribed~
had
the
result
that
its
potential
for
ameliorating
inequalities
were
limited.
3
The
problems
caused
by
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