Equality Law and the Protected Characteristics
| Date | 01 July 2018 |
| Published date | 01 July 2018 |
| Author | Kate Malleson |
| DOI | http://doi.org/10.1111/1468-2230.12353 |
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Equality Law and the Protected Characteristics
Kate Malleson∗
UK anti-discrimination law is founded on a grounds-based system of protected characteristics.
For this system to function as a legitimate and workable legal framework the characteristics
must satisfy three conditions: they must have some definitional and categorical stability, they
must broadly reflect people’s understanding of social reality and lived experiences and they
must align with the most significant axes of discrimination in society. This article argues that
all three conditions are becoming increasingly difficult to satisfy as a result of dramatic shifts
in social configurations of identity and the ongoing failure to include socio-economic status
as a legally protected characteristic. The future of the legislative framework may depend on
the willingness of courts and policy-makers to adopt a more context-based approach to the
protected characteristics. This would requirethem to inter rogateclaims of individual instances of
discrimination in the context of wider, but also more particular substantive group disadvantage.
INTRODUCTION
The construction of a viable system of anti-discrimination law requires a work-
able strategy for identifying who or what is unequal for the purposes of le-
gal protection.1In common with most anti-discrimination legal frameworks
around the world, the UK’s first anti-discrimination laws passed in the 1960s
were structured around the identification of grounds-based categories of dis-
crimination rather than identified disadvantaged groups.2
This structure provided a good fit for a framework based on symmetrical
equal treatment between individuals. But it also failed to align with the material
reality of group disadvantage. Some critics of the law claimed that this mismatch
was not accidental. It was evidence that the legislation was intended as a sop to
mask the structural foundations of racism and sexism.3Others have viewed the
legislative framework as a genuine, if limited, attempt to address historical and
ongoing discrimination. For supporters of the anti-discr imination legislation,
the original decision to for mulate it in terms of the characteristics of ‘race’
and ‘sex’ rather than by outlawing discrimination against ‘black people’ and
‘women’ was pragmatic. Framing the legislation in terms of individual equal
treatment based on protected characteristics was instrumental in generating
sufficient support from political and legal gatekeepers to implement even the
very modest first wave of anti-discrimination legislation. Politically, support for
the creation of unfamiliar and untested anti-discrimination laws was easier to
∗School of Law, Queen Mary University of London.
1 J. Conaghan, ‘Intersectionality and UK Equality Initiatives’ (2007) 23 South African Journal on
Human Rights 317, 326.
2ibid, 324.
3 See N. Lacey, ‘Legislation Against Sex Discrimination: Questions from a Feminist Perspective’
(1987) 14 JLS 418.
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(4) MLR 598–621
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Kate Malleson
garner if the law was constructed as promoting fairness and inclusivity through
the equal treatment of all individuals, irrespective of their sex or race, rather
than as a provision designed to counter the specific and particular historical and
continuing group disadvantage suffered by white women, black men and black
women. Pragmatically, the construction of the law as grounds-based rather
than group-based made it easier to keep a lid on the almost limitless potential
competing demands of particular interest groups to be accorded specific recog-
nition and protection. Legally, the grounds-based system applied through an
equal treatment approach provided the best fit with the paradigm of ‘treating
like cases alike’. It could therefore be accommodated more comfortably within
the existing operational principles and culture of the legal system.4
Whether intentionally or not, the effect of the grounds-based legal frame-
work has been to hamper the ability of the courts when interpreting the
legislation, and of organisations when implementing it, to employ the law in
such a way as to address group inequality. For those who hoped that the anti-
discrimination legislation might play a more transformative role in addressing
inequality, this has been an ongoing source of frustration. The grounds-based
framework has meant that disadvantaged groups have had to work on a case-
by-case basis to extend their legal recognition through litigation and through
lobbying for legislative change. One response to this problem would be to
challenge the foundational weakness of the system itself and to propose a root
and branch reformulation of the anti-discrimination law framework which is
not based on identity characteristics. This would seek to shift the legal response
to inequality from the recognition of inequalities in status grounded in social
relations to one of redistribution which focuses on inequalities derived from
socio-economic structures.5Sandy Fredman’s work, in particular, has engaged
persuasively with the macro question of how these two approaches might be
reconciled in legal responses in the UK and elsewhere.6This article is more
pragmatic. While recognising the limitations of the current paradigm it starts
from the assumption that the current equality law framework will be central
to the legal response to inequality in the foreseeable future and so asks instead
how that framework could develop to respond to ongoing changes in relation
to social identity.
THE EXPANSION AND FRAGMENTATION OF THE PROTECTED
CHARACTERISTICS
For the first thirty years of the anti-discrimination law, race and sex remained
the only recognised grounds.7In the years since 1995, the law has undergone
4 H. Collins, ‘Discrimination, Equality and Social Exclusion’ (2003) 66 MLR 16, 42.
5 N. Fraser and A. Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (London:
Verso, 2003).
6 S. Fredman, ‘Redistribution and Recognition: Reconciling Inequalities’ (2003) 23 South African
Journal on Human Rights 215.
7 The one exception being the Sex Discrimination (Gender Reassignment) Regulations 1999,
which extended the provisions of the Sex Discrimination Act to gender reassignment in relation
to employment and vocational training.
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(4) MLR 598–621 599
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