Palliation or protection: How should the right to equality inform the government’s response to Covid-19?

Date01 December 2020
DOI10.1177/1358229120969611
Published date01 December 2020
Subject MatterArticles
Article
Palliation or protection:
How should the right
to equality inform
the government’s
response to COVID-19?
Meghan Campbell
1
, Sandra Fredman
2
and Aaron Reeves
2
Abstract
This article examines what role equality law can play in addressing the inequalities
created and exacerbated by the British government’s response to the COVID-19 pan-
demic. We argue that while there is great potential in existing legislation, there is a need
for both policy-makers and courts to apply a more searching and nuanced understanding
of the right to equality if this potential is to be realised. We begin by examining how the
burdens of confronting this pandemic as a society fall more heavily on those already at
the bottom end of the scale of inequality. We then ask whether and to what extent the
current legal structures protecting the right to equality can be mobilised to redress such
inequalities, paying particular attention to the Public Sector Equality Duty under the
Equality Act 2010 and on the Human Rights Act 1998. Finally, we argue that, to fulfil the
requirements of both these legal duties, the courts should subject policies and practices
to close scrutiny under the four-dimensional approach. When making and oper-
ationalising policies around COVID-19, substantive equality requires account to be taken
simultaneously of the four dimensions of inequality to the greatest extent possible.
Keywords
Substantive equality, Article 14 of ECHR, Public Sector Equality Duty, COVID-19, status
and economic inequality
1
University of Birmingham, Birmingham, UK
2
University of Oxford, Oxford, UK
Corresponding author:
Meghan Campbell, University of Birmingham, Birmingham B15 2TT, UK.
Email: m.campbell.1@bham.ac.uk
International Journalof
Discrimination and theLaw
2020, Vol. 20(4) 183–202
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1358229120969611
journals.sagepub.com/home/jdi
Introduction
COVID-19 will not be the great leveller but the great revealer.
1
It is true that this pandemic
draws attention to our shared humanity by virtue of that fact that no-one is immune from
the disease, including the British Prime Minister. But this virus does not generate equal-
ity simply because it is blind and unbiased. Rather, this p andemic has exposed and
exacerbated the inequalities that are already obvious as well as tho se that are often
hidden from view.
2
While government measures have certainly been helpful in some
areas, they have also maintained and even deepened some of the existing fractures in
society. The question of equality must be front and centre of a social justice response to
the disease. This is all the more so because if some in society cannot be looked after and
treated, both medically and economically, everyone suffers.
This article examines what role equality law can play in addressing these inequalities.
We argue that while there is great potential in existing legislation, there is a need for both
policy-makers and courts to apply a more searching and nuanced understanding of the
right to equality if this potential is to be realised. Most importantly, it should be recog-
nised that the right to equality consists in more than treating likes alike regardless of their
race, gender, disability or other similar protected characteristics. It requires an apprecia-
tion of the complex ways in which disadvantage, stereotyping, lack of voice and struc-
tural obstacles interact to cause and sustain inequality . This means that the right to
equality must be multidimensional, simultaneously redressing disadvantage; addressing
stigma, stereotyping prejudice and violence; facilitating participation; and accommodat-
ing difference and addressing the need for structural change.
3
To redress disadvantage (the first dimension), when any policy is being formulated to
deal with COVID-19, steps must be taken to ensure that the most disadvantaged are among
the prime beneficiaries especially those with intersectional identities, such as Bl ack
women, disabled, poor or old women, single mothers and others. To address stigma,
stereotyping, prejudice and violence (the second dimension), stigmatic characterisations,
such as those of benefit claimants, and stereotypical assumptions, such as women being
the primary carers, should be redressed. Most importantly, gender-based violence must
be recognised as an inequality issue and addressed. The third dimension focuses on voice
and participation. Those that are affected need to be included as far as possible in
decisions. This is because policies work better when we know what people’s needs are,
because it promotes more ownership, and because it affirms the value of every person
and every voice. The fourth dimension recognises that inequality is more than many
individual acts of prejudice. It is about the structures of society, and particularly the
power imbalances, which create and perpetuate inequality. Substantive equality requires
not only the accommodation of difference, but also its valorisation and the transforma-
tion of structures that perpetuate inequality. When making and operationalising policies
around COVID-19, substantive equality requires account to be taken simultaneously of all
these dimensions to the greatest extent possible.
Under the spotlight of this multidimensional conception of the right to equality, it can
be seen that inequalities based on status, such as gender, race or disability, both cause
and are caused by economic disadvantage, bridging the traditional divide between dis-
crimination law and socio-economic policy. This in turn means that, when taking socio-
184 International Journal of Discrimination and the Law 20(4)

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