Dignity and Substantive Equality

Abstract

This paper engages with debates over what is meant by substantive equality in comparative constitutional law. It examines the link sometimes made between the concept of dignity and substantive equality. The paper suggests that the link with dignity is not the most fruitful approach to substantive equality and that it would be better to focus on the specific issues of dismantling structures of prejudice and subordination, with a view to ensuring everyone the equal benefit of the laws. In looking at how courts have promoted dignity and tackled disadvantage through equality law, the paper suggests that judges should pursue an end to disadvantage, and dignity will follow from that.

NB: This is work in progress. Any comments will be welcome to [email protected]

1 Introduction: empty vessels and unassailable concepts

Dignity is an unassailable value: no one can argue against human dignity. This is not necessarily a good thing as dignity is also a very ambiguous concept and conceals very different ideas on what constitutes a life with dignity.

Despite this ambiguity, the concept of dignity has increasingly attracted attention, as courts have sought to promote ideals of dignity. In different contexts, dignity has been invoked by courts in

Germany,1 Hungary,2 Canada and South Africa among others. With the developments in public law in the United Kingdom, most notably with the introduction of the 1998 Human Rights Act, jurists, lawyers and judges in the UK have had to increasingly reflect on the role of dignity.3

The focus in this paper is on one specific use of dignity – as an element in an equality jurisprudence. Equality law is in a state of ferment in the United Kingdom, with a Westminster bill proposing a single Equality and Human Rights Commission,4 new European Union directives on equality,5 a debate in Northern Ireland over the adoption of a Single Equality Act, 6 and a stalled debate in Northern Ireland over a Bill of Rights for the Province. 7 These different initiatives indicate a need to consider just what we are trying to achieve with equality law. Dignity has been suggested as a value which can be used to “ground” or give direction to the concept of equality.

Dignity has been invoked in case law in Canada and South Africa, jurisdictions often cited as possible models for an equality jurisprudence.8

1 Kommers, Donald Constitutional Jurisprudence of the Federal Republic of Germany (Durham and London: Duke University Press, 1997), Ch. 7. 2 Dupre, C. Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity (Oxford: Hart, 2003). 3 Feldman, David "Human Dignity as a Legal Value - Part 1" (1999) Public Law 682 , Feldman, David "Human Dignity as a Legal Value - Part 2" (2000) Public Law 61 , Gearty, Conor Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004), Ch. 5. 4 2006 Equality Act. 5 2000 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; 2000 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (27/11/00). 6 OFMDFM v. A single Equality Bill for Northern Ireland [2004] . 7 Northern Ireland Human Rights Commission v. Progressing a Bill of Rights for Northern Ireland [2004] 8 Grant and Small "Disadvantage and Discrimination: the emerging jurisprudence of the South African Constitutional Court" (2000) 51 Northern Ireland Legal Quarterly 174

2 Equality is itself a difficult concept. No less a figure than the Chief Justice of Canada labels it the

“most difficult right”.9 Courts in many different jurisdictions have had difficulties grappling with this right. In the United States, an apparently clear three tier approach to equal protection law has been troubled by the emergence of concepts like “rational scrutiny with bite” and “sliding scale” approaches to equal protection. In Ireland, an early effort to link dignity to equality10 was lead astray by a fruitless debate over what constituted the essentials of being human. 11 Canada has seen repeated efforts since the 1990s to define an approach to equality; an apparent reconciliation of views in 199912 has more recently been seen to be a false reconciliation.13 The same is true, if not quite to the same extent, in South Africa, where the Constitutional Court took an early decision to set out a test for equality14 but there have been important split decisions in how to apply that test.15

It is tempting perhaps to put some of this controversy down to the criticism that equality is an essentially empty concept, a point made with considerable vigour by Peter Westen in the 1980s. 16

9 McLachlin, B. "Equality: the most difficult right" (2001) 14 Supreme Court Law Review 17 . Her colleague, Iacobucci J. describes it as the “most conceptually difficult provision” in the Canadian Charter of Rights: Law v. Canada (Minister of Employment and Immigration) [1999] 170 Dominion Law Reports 4th 1 [1999] 1 SCR 497, para. 2. 10 Quinn's Supermarket v. Minister for Industry and Commerce [1972] Irish Reports 1 (2 April 1971). 11 Kelly, John, G. Hogan and G. Whyte The Irish Constitution (Dublin: Butterworths, 1994) 719. 12 Law v. Canada (Minister of Immigration) [1999] 170 Dominion Law Reports 4th 1 [1999] 1 SCR 497 (1999/3/25). 13 Gosselin v. Attorney General of Quebec [2003] 221 D.L.R. 4th 257 [2002] 4 S.C.R. 429 (2002/12/19); Lavoie v. Canada (Minister of Immigration) [2002] 210 D.L.R. 4h 193 (2002/03/08); Canadian Foundation for Children, Youth and the Law v. Canada [2004] 1 S.C.R. 76 [2004] 234 D.L.R. (4th) 257 (2004/01/30); Nova Scotia v. Walsh [2002] 221 D.L.R. 4th 1 (2002/12/19) (equal division of matrimonial property). There are some important decisions which are not so fractured: Nova Scotia (Workers Compensation Board) v. Martin [2003] 231 D.L.R. (4th) 385 [2003] 2 S.C.R. 504 (2003/10/03) (chronic back pain); Trociuk v. Attorney General of British Columbia [2003] 226 D.L.R. 4th 1 [2003] 1 S.C.R. 835 (2003/06/06) (father’s rights over child). 14 Set out in President of the Republic of South Africa v. Hugo (CCT 11/96) [1997] SA 4 1 (CC) [1998] 1 LRC 662 (1997/04/18) and Harksen v. Lane (CCT 9/97) [1998] S.A. 1 300 (CC) [1998] 2 LRC 171 (7 Oct. 1997) at [50-53]. 15 In Hugo and Harksen themselves, but also in City Council of Pretoria v. Walker (CCT 8/97) [1998] BCLR 3 257 (CC) [1999] 4 LRC 203 (17 Feb. 1998); Robinson v. Volks (CCT 12/04) [2005] (2005/02/21), Jordan v. S. (CCT31/01); and on the question of remedy in Lesbian and Gay Equality Project v. Minister of Home Affairs (CCT10/04) [2005] (2005/12/01).

16 Westen, Peter "The Empty Idea of Equality" (1982) 95 (537) Harvard Law Review , Westen, Peter "On Confusing Ideas" (1982) 91 Yale Law Journal 1153 , Westen, Peter "The Meaning of Equality in Law, Science, Maths and Morals" (1983) 81 (604) Mich. L. Review , Westen, Peter "To Lure the Tarantula from its Hole" (1983) 83 Columbia Law Review 1186 , Westen, Peter "The Substance of Equality" (1991) 89 Michigan Law Review 1350

3 The formal conception of equality – that likes should be treated in a similar manner and those which are unalike treated differently according to their difference – is an essentially meaningless concept as Westen argued, for everything depends on the substantive rule by which you define what is alike.

The emptiness of formal equality makes it tempting to flesh out equality with more substantive concepts. Sandra Fredman identifies specific values which can be used to develop a substantive conception of equality: distributive justice, remedial aims, participation, and dignity. 17 It is to the value of dignity that some judges and commentators have turned. This is especially so in the case law of Canada18 and South Africa,19 though it has also attracted attention from commentators elsewhere (recent European directives on equality make reference to the aim of protecting dignity20). In this paper I will examine how judges have used this concept of dignity in developing equality law, suggest the dangers that attend such an approach and urge a reliance on developing the idea of substantive equality itself.

17 Fredman, Sandra Introduction to Discrimination Law (Oxford: OUP, 2002), 17-23. 18 Egan v. Canada [1995] 2 S.C.R. 513 [1995] 124 DLR 4th 609 (1995/05/25); Law v. Canada (Minister of Immigration) [1999] 170 Dominion Law Reports 4th 1 [1999] 1 SCR 497 (1999/3/25); Lavoie v. Canada (Minister of Immigration) [2002] 210 D.L.R. 4h 193 (2002/03/08); Gosselin v. Attorney General of Quebec [2003] 221 D.L.R. 4th 257 [2002] 4 S.C.R. 429 (2002/12/19); Trociuk v. Attorney General of British Columbia [2003] 226 D.L.R. 4th 1, (2003/06/06)

19 President of the Republic of South Africa v. Hugo (C. 11/96) [1997] SA 4 1 (CC) [1998] 1 LRC 662 (1997/04/18); Prinsloo v. Van der Linde, and the Minister of Forestry and Water Affairs (C. 4/96) [1997] SA 3 1012 (CC) [1998] 1 LRC 173 (1997/04/18); City Council of Pretoria v. Walker (C. 8/97) [1998] BCLR 3 257 (CC) [1999] 4 LRC 203 (17 Feb. 1998); Harksen v. Lane (C. 9/97) [1998] S.A. 1 300 (CC) [1998] 2 LRC 171 (7 Oct. 1997); National Coalition for Gay and Lesbian Equality v. Minister for Home Affairs (C. 10/99) [1999] BCLR 3 280 [2000] 4 LRC 292 (1999/12/02); Hoffman v. South African Airways (C. 17/00) [2001] 2 Law Reports of the Commonwealth 277; Jordan v. S. (CCT31/01) [2002]; Khosa v. Minister of Social Development and Others (CCT12/03) [2004] SA (2004/03/04).

20 This is true of the directive amending the Equal Treatment Directive, which makes use of dignity in its definition of harassment: Article 2.3 of 2002 Council Directive 2002/73/EC of 23 September 2002, The Equal Treatment Amendment Directive.

4 The meaning of dignity

That dignity is a difficult concept to define is a commonplace, but we should note that some of these judges have made determined efforts to give a content to this concept. In particular in the landmark case of Law v. Canada where Iacobucci J. discussed the idea and he is worth quoting at length:

“Human dignity means that an individual or group feels self-respect and self-worth. It

is concerned with physical and psychological integrity and empowerment. Human

dignity is harmed by unfair treatment premised upon personal traits or circumstances

which do not relate to individual needs, capacities, or merits. It is enhanced by laws

which are sensitive to the needs, capacities, and merits of different individuals,

taking into account the context underlying their differences. Human dignity is harmed

when individuals and groups are marginalized, ignored, or devalued, and is

enhanced when laws recognize the full place of all individuals and groups within

Canadian society. Human dignity within the meaning of the equality guarantee does

not relate to the status or position of an individual in society per se, but rather

concerns the manner in which a person legitimately feels when confronted with a

particular law. Does the law treat him or her unfairly, taking into account all of the

circumstances regarding the individuals affected and excluded by the law?” [53]

This sets out a fairly detailed analysis of what dignity means in the Canadian context. It does not eliminate scope for disagreement however. In particular, it asks not merely how the claimant feels s/he has been treated but also whether that feeling is “legitimate”, whether there is a reasonable basis for a feeling that one’s dignity has been assaulted. This, we will see, allows for much disagreement.

The concept of dignity has also been tied to the value of autonomy in several of these judgements. This is not a new linkage: Kant’s writings on dignity and autonomy link them

5 intimately.21 Several of the judgements we will look at make this link also, Albie Sachs J. of the

Constitutional Court noting that human autonomy and free choice must be respected.22 In several cases the role played by the duty to respect autonomous choice has been problematic and at the root cause of the dissension within the courts.23

The uses of dignity

In what ways can dignity be used in an equality jurisprudence? We can imagine several different uses of dignity. It may have a largely symbolic role, in emphasising the grave importance of equality and non-discrimination in our societies. It may be used to identify the types of groups or the types of classifications that equality jurisprudence should concern itself with. It may be used as a threshold mechanism for determining when a discrimination becomes unacceptable. It may be used to decide when a prima facie discrimination is justifiable (on the grounds that it furthers or at least does not impair human dignity).

In some cases the reference to dignity is used in a very large sense to underline the importance of an equality jurisprudence. In an early South African decision, the Constitutional Court had to assess the validity of a Presidential decision to pardon mothers of young children who were in prison, but not the fathers. In upholding this decision of the President the Court noted that the right not to be discriminated against was essential in the “establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.”24 In so far as dignity is being used to underline the importance of equality, it is

21 Kant, Immanuel Groundwork of the Metaphysic of Morals, The Moral Law (London: Hutchinson, 1948).

22 Robinson v. Volks (CCT 12/04) [2005] (2005/02/21) at [51].

23 In the South African case of Robinson v Volks, but also Nova Scotia v. Walsh [2002] 221 D.L.R. 4th 1 (2002/12/19).

24 President of the Republic of South Africa v. Hugo (C. 11/96) [1997] SA 4 1 (CC) [1998] 1 LRC 662 (1997/04/18), para. 41.

6 not playing a substantive role, and it is worrying that a judge should think it necessary to stress that equality is of vital importance in the modern democratic state.

Aside from this primarily symbolic function, the value of dignity may play a substantive role.

Dignity can be invoked in order to expand the types of discrimination which a court may deal with.

The use of the concept of dignity to expand the scope of an equality clause is found in Canada, where Section 15 of the Charter comprises a compendious guarantee of equality, in particularly outlawing discrimination on a number of “enumerated grounds”. The Canadian courts have held that the prohibition on discrimination also applies to grounds which are “analogous” to those enumerated grounds. In deciding whether a ground is analogous to an enumerated, the key inquiry is whether the ground is used in a way to impair human dignity.25 In a case where a statute denied Aborigines living off a reserve any voting rights relating to the reservation matters, the Supreme Court of Canada ruled that the status of being an “off reserve Aborigine” was an analogous ground. Like the enumerated grounds it was a status that was often used in stereotypes, was not based on merit or personal circumstances, but rather on a feature that is

“immutable or changeable only at unacceptable cost to personal identity”.26 Given the possibility that an analogous ground is often used for discriminatory purposes, the Court further ruled that once a ground is deemed analogous it should always be so regarded. 27 The majority was careful to note though that finding there was a distinction based on an analogous ground was not the final step in finding there had been improper discrimination.28

The use of dignity to expand the scope of an equality doctrine could be developed to the extent that there is no need to tie the claim of discrimination to any particular ground of discrimination.

This view has been championed by one member of the Supreme Court of Canada. In Vriend,

25 Corbiere v. Canada, Minister of Indian Affairs [1999] 173 Dominion Law Reports 4th 1 [1999] 2 SCR 203 (1999/05/20) at [5].

26 Corbiere v. Canada, Minister of Indian Affairs [1999] 173 Dominion Law Reports 4th 1 [1999] 2 SCR 203 (1999/05/20) at [13]. The Court went on to find that the distinction on this analogous ground was discriminatory, and was not justified under Section 1 of the Charter.

27 Corbiere at [8]. 28 Corbiere at [7-8].

7 the case concerning the exclusion of sexual orientation form an Albertan anti-discrimination statute, L’Heureux Dube J. on the Supreme Court of Canada, argued that the focus of the Section

15 inquiry should be on the impact of a measure and not on its particular constituent elements, that is to say, not so much on what ground the distinction was made. It was this negative impact and not the particular grounds that were involved that was crucial.29 Even after the SCC settled on an approach to equality in Law which did insist on a link to an enumerated or analogous ground, L’Heureux Dube continued to have a distinctive approach. L’Heureux Dube J., in the case of Corbiere adopted a much more flexible and open approach to the criteria used to identify analogous grounds, arguing that the criteria were open-ended (immutable characteristic, lack of political power, importance to identity, being vulnerable or disadvantaged) and that different conclusions might be reached as to whether something constitutes an analogous ground in different contexts.30

The Constitutional Court of South Africa will also consider claims based on distinctions not just based on those grounds enumerated in the equality clause of the South African constitution, but other forms of distinction that are based on grounds, directly or indirectly, that have the potential to impair human dignity. If there is a distinction, based on such a ground, then the court must consider whether it is unfair. In deciding whether other forms of distinction are unfair, one of the factors to consider is whether the measure impairs the dignity of the persons affect.31

The use of dignity may make it easier to see discrimination than a traditional conception of

equality focusing on discrimination. The Jordan case in South Africa concerned the

criminalisation of prostitution; only the prostitute was criminalised and not the customer. In

practice of course prostitutes were overwhelmingly female and customers male. It would be

easy enough to do, as the dissenter in Jordan did, to argue that the law did not mention any

prohibited ground and it was reasonable to penalise the person offering the commercial

29 Vriend v. Alberta, at 580-2. 30 See Corbiere at [60-62]. 31 Harksen v. Lane (C. 9/97) [1998] S.A. 1 300 (CC) [1998] 2 LRC 171 (7 Oct. 1997), para. 51.

8 service rather than the customer, and that this was indeed common in the criminal law. The

majority judgment of O’Regan and Sach JJ. noted this indirect discrimination against

women, which was directly linked to stereotypes and patterns of gender disadvantage;32 the

law reinforced these by imposing a stigma on the prostitute but not the customer [63]. The

facially neutral measure in facts reinforces the view that a prostitute is a “fallen” women while

the customer is “at best virile, at worst weak. Such discrimination, therefore, has the

potential to impair the fundamental human dignity and personhood of women.”33 The

discrimination is unfair: prostitutes are a vulnerable marginal group, who are often forced to

become vulnerable. Many women turn to prostitution out of dire need, not choice; and it is

unfair not to penalise the patrons. The case is different from Hugo where a discriminatory

measure was used to benefit a disadvantaged group; here the measure adds to the social

stigma and prejudice.34 The unfair discrimination was not justified under Section 33 of the

Constitution.35

If the idea of dignity is sometimes used in order to expand the scope of equality law’s reach, arguably its main use is to restrict it. One of the main purpose of dignity in comparative constitutional equality jurisprudence is as a threshold requirement, to separate those distinctions which are constitutionally improper from ones not so improper.36 The South African Constitution for instance does not prohibit discrimination but only unfair discrimination, and in determining what is unfair discrimination, dignity is “an underlying consideration”.37

This comes across in the famous Law guidelines established by the Canadian Supreme Court in

1999.38 This case was based on a claim by a thirty year old woman that denying her survivor’s

32 At [60]. 33 At [65]. 34 At [69]. 35 At [98]. The Court found that the right to privacy was also infringed but this was justified. 36 I am very grateful to Sonia Lawrence of Osgoode Law School for a discussion on this point. 37 Robins v Volks,, para. 79, per Ngcoco J., concurring. 38 Law v. Canada (Minister of Employment and Immigration) [1999] 170 Dominion Law Reports 4th 1 [1999] 1 SCR 497 (1999/3/25).

9 benefits because she was under 35 was discriminatory. Iacobucci J. delivered the judgement of the court, integrating previous diverse strands in the court’s efforts to develop an equality test. He identified three principles to guide equality decisions: did the case involve a formal distinction or a differential impact? Was this based on one of the grounds mentioned in Section 15 of the Charter or an analogous ground? If so, does it violate the purpose of the Charter?39

It is this last ground that brings in the idea of dignity, 40 though Iacobucci J. was careful to develop the idea at some length and identified a range of factors to consider under this heading.41 These included pre-existing disadvantage, the relationship between the grounds and the claimant’s

“need, capacity or circumstances”, the ameliorative purpose of the legislation, and the nature of the interest concerned, or otherwise demeaned the dignity of the claimant.42 Applying the three guidelines to the case, Iacobucci J. found that there was a distinction and it was based on the enumerated ground of age. There was no violation of human dignity however, as young people

(without disability or dependent children) had a better chance to obtain employment. There was no stereotyping of people under the age of 35 implied, but rather the distinction was related to the reality that a young person has the opportunity to replace the income.43

The benefits of dignity in an equality jurisprudence

There are some advantageous uses of dignity then in an equality jurisprudence. Allowing the scope of equality law to be expanded to include grounds not specifically enumerated is an important possibility. Further it is important that “trivial” or non-serious distinctions are weeded out from the targets of constitutional equality law.

39 Law v. Canada (Minister of Employment and Immigration) [1999] 170 Dominion Law Reports 4th 1 [1999] 1 SCR 497 (1999/3/25), paras 39, 88. 40 Para. 51. 41 Paras. 59-75. 42 Para. 75. 43 Paras 101-103.

10 In some ways these two are related. The advantage of the sort of substantive equality law model used in South Africa and Canada is clear when compared with the non-discrimination jurisprudence of Article 14 of the European Convention on Human Rights. Whilst the ECHR may be praised for having an open-ended list of possible grounds of distinction, there is no guidance in the jurisprudence as to what types of distinctions beyond those enumerated are caught. This could mean that all distinctions are potentially caught. In practice this is not a problem because the Strasbourg Court and domestic courts can rely on different doctrines to uphold distinctions, most notably they can rely on the Aristotelian principle that the distinction does not compare like with like, and so there is no discrimination after all, or they can rely on the proportionality test which permits distinctions to be justified as being reasonably necessary in the public interest.

There is a further valuable use of dignity, remarked upon by Sandra Fredman among others. This is that it enables the courts to deal with the threat of “levelling down”. The problem here is that a traditional discrimination jurisprudence requires that everyone be treated the same, even taking into account relevant differences. This reflects the insight of US Supreme Court Justice Jackson that it is a major check on majority power to insist that any burdens to be imposed on the minority must also be imposed on the majority. The problem arises when the majority is willing to accept those burdens or has those thrust upon them in order to maintain the burden on the minority. An example was the case of Palmer v. Thompson in the United States, when a local authority, faced with an order to integrate its segregated recreational facilities, including swimming pools, decided instead to close them, those burdening the majority and minority equally.44 The Supreme Court majority declined to look at the motivation for this decision, and found no discrimination.

A dignity based equality jurisprudence offers a response to this sort of reasoning. Dignity requires that people be treated well, and in an equality context equally well: it is not satisfied if people are treated equally badly! Sachs J. expressed this point explicitly in the recent decision of the SA

Constitutional Court ruling that the failure to accord marriage rights to same sex couples violated the equality clause in the SA Constitution. The Court suspended its ruling of invalidity for a year to

44 Palmer v. Thompson (1971) 403 U.S. 217.

11 give the legislature the time to remedy the defect, but also laid down some guidelines as to what form the legislative response should take. Specifically, the measure must aim at promoting dignity and equality and so levelling down was not an option.45 Furthermore the legislature should be careful to ensure any solution did not involve new forms of marginalisation or discrimination.46

Impressive as this guidance (or admonition) is, there is also support from Canada for the proposition that a dignity based model avoids dangers of levelling down. Prior to the codification of the equality jurisprudence in Law, the Supreme Court of Canada dealt with an Albertan anti- discrimination statute, the Individual Rights Protection Act.47 The Act, by the time the SCC made its decision, prohibited discrimination on grounds of “race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry and place of origin … marital status, source of income and family status”, but not sexual orientation.48 The claimant had been dismissed from his job because he was gay. The majority rejected a formal equality approach which would not even have seen this as a discrimination against gay men and lesbians; as Cory J. noted the silence of the law disadvantaged gay men and lesbians vis-à-vis other vulnerable groups and also vis-à-vis heterosexuals.49 Having found an implicit distinction, Cory J. had to decide whether it was based on a personal characteristic that was an enumerated or analogous ground, and whether it denied a benefit or imposed a burden, or otherwise interfered with the sense of worth of the claimant.

The Egan case had already decided that sexual orientation was an analogous ground. On the second inquiry, Cory J. noted that sexual orientation as being left out of a broad omnibus anti- discrimination statute, which denied them access to the equality remedies others could invoke; and this ran the risk of perpetuating or even encouraging this sort of discrimination, putting the legislative stamp of approval even on this type of discrimination.50 Cory J’s colleague Iacobucci J. conducted the Section 1 justification inquiry, finding a comprehensive failure to satisfy the test.

45 Lesbian and Gay Equality Project v. Minister of Home Affairs (CCT10/04) [2005] (2005/12/01) at [149]. 46 Lesbian and Gay Equality Project v. Minister of Home Affairs (CCT10/04) [2005] (2005/12/01) at [150].

47 Vriend v. Alberta [1998] 156 D.L.R. 4th 385 [1997] 132 D.L.R. 4th 595; [1998] 3 LRC 483; [1998] 1 S.C.R. 493 (1998/04/02). 48 Vriend v. Alberta [1998] 1 S.C.R. 493 at 505. 49 At 541-2. As in the Eldridge case the formal equality of the law denied the equal benefit of the law to everyone. 50 At 547-551.

12 This is interesting enough, but the relevant point comes next in the selection of a remedy. Rather than striking down the legislation or issuing a suspended declaration of invalidity, allowing the legislature to respond to the defect, Iacobucci J. ordered that the term “sexual orientation” be read into the statute, commenting that this best served the aims of both the Statute and the

Charter: “the promotion and protection of inherent dignity and inalienable rights”.51 The majority thus rejected a leveling down approach though leaving open the possibility the Albertan legislature might chose to amend the legislation or even override it.

The dangers of dignity in an equality jurisprudence

Whilst dignity has been used in these different ways, there are also dangers with its use. The dangers are well known and lie in its very ambiguous almost subjective nature. 52 What one person regards as an intolerable assault on human dignity, another may see as incidental, part of the common every day life. Or what one person may see as an assault on dignity, another may see as necessary positive action. This ambiguity of the concept is highlighted in some of the cases from both Canada and South Africa.

In some cases it is the role of autonomy in relation to dignity which is the problematic element. In both South Africa and in Canada the courts have had to deal with allegations of discrimination against unmarried cohabiting heterosexual couples vis-à-vis the rights granted to married cohabiting heterosexual couples. In many instances the courts have fond that distinctions are unjustified, but not always and there are common points to the reasoning which appear. In the

Canadian case the distinction was a statutory presumption that matrimonial property should be equally divided between equally the spouses at the end of the marriage; this presumption did not apply to unmarried cohabiting couples. In South Africa statute provided that a married spouse, on

51 At 570. L’Heureux-Dube J. concurred, but disagreed with the importance attached to the enumerated or analogous grounds by Cory J, and also worried that he was endorsing a narrower approach to what constituted an analogous ground that that ordered by the SCC in Miron v. Trudel. Major J. dissented as to the remedy ordered. 52 Fredman, Sandra Introduction to Discrimination Law (Oxford: OUP, 2002), 19.

13 the decease of her partner, could apply for maintenance to be paid to her (or him) out of the deceased’s estate; this possibility did not exist for unmarried cohabiting couples. Both courts, over strong dissents, found there to be no unfair discrimination (or discrimination according to the purposes of the Charter). In both cases the majority noted that marriage was an institution to which wide ranging legal incidents attached.53 In this context the majority stressed the need to respect autonomous choices: where a person or couple chose not to get married and accept the legal incidents of marriage then these should not be imposed by a court. 54 The dissenters in both

Canada and South Africa pointed out that free choice in this sort of case was often an illusion, and Sachs J. of the SA Constitutional Court especially laid stress on the fact that structures of gender discrimination which disadvantaged women were not unique to marriage but also formed part of the lives of unmarried cohabiting couples.55 The dissenters, arguing the unreality of the choice existing in such cases, placed more emphasis on the needs and welfare of disadvantaged persons. There is a faint, very faint, echo of the Lochner era debates in early 20th Century United

States when freedom to contract and private property trumped equality and welfare.

These cases highlight the real possibility of a tension between autonomy and dignity in the context of an equality jurisprudence. While indicating a real tension, this is not a serious criticism of a dignity oriented equality jurisprudence. Any human rights jurisprudence will require judges to make significant moral choices. In these cases the competing values – autonomy versus need - are at least clearly set out, and the judicial choice between them can be analysed and criticised.

Where this is a more serious danger though from a dignity oriented equality jurisprudence is where the amorphous nature of dignity allows unarticulated value judgments to form the basis a decision.

53 Walsh at [43]; Robinson at [51-58], per Skweyiya J., and at [81-87] per Ngcobo J. Ngcobo J. in particular cited international law in support of the institution of marriage. 54 Walsh at [43]; Robinson at [93] per Ngcobo J. 55 Sachs J. stressed that "patterns of gender inequality reinforced by law [should not] be not viewed simply as part of an unfortunate yet legally neutral background": Robinson at [163].

14 The Canadian case of Gosselin is instructive.56 Between 1984 and 1989 Quebec operated a social assistance scheme which paid less assistance to people under the age of 30 than those over the age of 30. Persons under 30 could increase their payments by participating in government run programmes. The claimant sought to make the provincial government compensate all the young people who had been affected by the discrepancy. The Supreme Court of Canada rejected this claim, but split by 5 votes to 4 on the decision. The Court split precisely on the question of whether the distinction violated the purposes of the Charter.57

Applying the factors listed by Iacobucci J., McLachlin C.J. found that young people did not suffer from a history of disadvantage;58 indeed young people were probably better off in terms of access to employment.59 Further there was a relationship between the ground of distinction and social reality: there was a problem of youth unemployment based partly on the lacks of skills among some young people.60 As far as ameliorative purposes were concerned, McLachlin CJ found this criterion to be neutral in the case, though highlighted that the two groups had different needs. 61

On the final ground - the nature of the interests – McLachlin CJ held that the legislature had thought it was helping younger people to develop skills and was trying to “to promote the self- sufficiency and autonomy of young welfare recipients”.62 She concluded that the claimant had failed to show that her dignity had been affronted.

The dissenting judges dealt very differently with the third principle of the Law test; indeed they seem to have been deciding a different case judging from the differences in their judgements with that of the majority. Bastarache J. gave a detailed overview of the claimant’s circumstances: she had to move house frequently, sometimes ate at soup kitchens and relied on eating at her mother’s, suffered a string of medical problems.63 He argued that there was pre-existing disadvantage, as the social assistance scheme was premised on the problem of youth

56 Gosselin v. Attorney General of Quebec [2003] 221 D.L.R. 4th 257 [2002] 4 S.C.R. 429 (2002/12/19). 57 Para. 19. 58 Para 32. 59 Para. 34. 60 Para. 40. 61 Para. 59. 62 Para 65. 63 Paras 164-170.

15 unemployment.64 L’Heureux-Dube J. also challenged a slightly paradoxical element in the majority’s reasoning, noting that if there was a problem with youth unemployment, then there was evidence of pre-existing disadvantage.65 Bastarache J. criticised the drawing of a bright line at age 30 as not corresponding to social reality.66 On the question of ameliorative purpose,

Basarache J. found this not helpful when the alleged ameliorative purpose was also to help the group allegedly discriminated against rather than some other more disadvantaged group; indeed the assumption in the legislation seemed to be that young people needed a punishment to be induced to take up training opportunities.67

The dissenters focussed considerable attention on the fourth factor to consider when deciding on whether the purposes of the Charter have been infringed: the nature of the interests involved.

L’Heureux-Dube J. insisted that the focus should have been on the effects on the claimant and not on an abstract consideration of the grounds for the distinction.68 The dissenters emphasised the nature of the harm inflicted on young people. The effect of the Quebec legislation was that young people were expected to survive on an income below the official subsistence level, exposing them to the threat of “deep poverty”,69 which might lead them to malnutrition or even more dire situations.70

The dissenters found a violation of Section 15. This did not spell condemnation for the legislative measure as section 1 of the Charter allows for reasonable limitations on Charter rights. The dissenters found that the measure impaired the equality rights of the claimant more than minimally.

Should a reasonable young person under the age of 30 feel that her dignity has been impaired when denied the same level of subsistence benefits as an older citizen? The Court split dramatically on this point, while all judges claimed to be applying the same test. It is certainly

64 Para. 238. 65 Para. 137. 66 Para. 246. 67 Para. 250. 68 Para. 111. 69 Para. 254. 70 Para 130-1.

16 possible that using such a notion as “dignity” allows judges to avoid looking at the more specific impact, the actual effects, as L’Heureux-Dube J. stressed, of the measure.

Arguably there are similar problems with another age discrimination case from Canada, this time dealing with the Canadian criminal code provision which permitted parents and teachers to use reasonable force for the purposes of correcting children. This defence from the law of assault was considered by the SCC which upheld the exemption for parents, subject to a strict interpretation, while invalidating it for teachers.71

The majority judgement of McLachlin J. goes through the three stage Law test of determining whether Section 15 is violated. It was the third stage – was the law discriminatory according to the substantive purposes of Section 15, that was crucial. While agreeing that the law had no relevant ameliorative purpose, that children were vulnerable, and the interest involved significant, the majority found there was such a correspondence between the circumstances and needs of children and the measure, when viewed in the overall context of state policy on corporal punishment that there was nothing arbitrarily demeaning and dignity had not been affronted.72

There were important dissenting opinions both as to the reasoning and the result.

It is not just in Canada that judges have split over this question. In one of its first decisions on the equality clause, the South African Constitutional Court could not find agreement on whether it was right for the President of the Republic to pardon mothers of young children but not fathers.73

The majority, speaking through Goldstone J. and O’Regan J. found that there was no unfair discrimination. Goldstone J. found that the jailed fathers had their liberty curtailed through conviction and not the Presidential Act. They were disadvantaged in being denied a benefit offered to mothers in jail, but they could still apply for remission. Therefore, in a rather conclusory passage, Goldstone J. found that the measure had not “fundamentally impaired their rights of

71 Canadian Foundation for Children, Youth and the Law v. Canada [2004] 1 S.C.R. 76 [2004] 234 D.L.R. (4th) 257 (2004/01/30). 72 At [68]. 73 President of the Republic of South Africa v. Hugo (C. 11/96) [1997] SA 4 1 (CC) [1998] 1 LRC 662 (1997/04/18).

17 dignity or sense of equal worth.”74 O’Regan J. concurred, finding that there was minimal harm imposed on fathers and so no unfair discrimination.75 Mokgoro J. issued a separate concurrence, finding that there was unfair discrimination, but it was justified under the limitations clause.

The dissenting judge found the majority view that there was no unfair discrimination a startling decision: in effect the State was relying on a stereotype about women’s position in society to justify the distinction it had made. Relying on a sex-based generalization without paying attention to the power of persons to define their own lives, was itself an affront to dignity.76 If such a stereotype were to be relied upon then there should be significant benefits flowing from it and this was not shown.77

Disagreement over what constitutes unfair discrimination, what sort of discrimination violates dignity, is again apparent in a recent South African case dealing with maintenance rights and duties after death. South African law provided maintenance rights for married spouses upon death but not for unmarried families.78 The Constitutional Court split by seven judges to three on the validity of this measure. The majority judgement of Skweyiya J. found that there were important legal differences between being married and chosing to live in together without getting married, and that the State could attach certain legal incidents to the former. Hence there was no unfair discrimination against survivors of unmarried couples.79 Neither the right to equality nor the right to dignity were infringed by a measure which merely pointed to the different legal rights and obligations and did not impugn the equal worth of unmarried survivors.80 Ngcobo J. agreed: the law was abut providing legal protections for the special category of married persons, and was

“manifestly not directed at impairing the dignity of the survivors of permanent life partnerships.”81

74 Para. 47. 75 Para. 114. 76 Para. 80, per Kriegler J. 77 PAras. 83-4, per Kriegler J. 78 Robinson v. Volks (CCT 12/04) [2005] (2005/02/21). 79 Para. 60. 80 Para. 62. 81 Para. 88.

18 Members of unmarried couples could decide to get married, and chose to accept the rights and obligations that flow from that; or they could make voluntary provision for support in their wills.82

The dissenting judges felt that the majority were very much presupposing the legitimacy of the distinction that they were supposed to be examining, and ignoring the patterns of gender discrimination which existed among unmarried couples as well as married couples.

These cases suggest that the capaciousness of the concept of dignity is sufficiently broad to allow very diverse conceptions of a life with dignity to be protected. Whilst no bad thing in itself, that same capaciousness may allow judges to rely on an unarticulated normative basis to decide these already very difficult issues.83

Tying dignity to equality

The temptation to link dignity with equality is nevertheless a strong one. We need though to have a better idea of what we mean by “dignity”. I would suggest that we can flesh this out and ironically flesh it out by reference to the concept of equality itself. Whilst there may be an assumption in some writings about equality and dignity that dignity is the basic value, there are

82 Para 90-91.

83 In addition to the dangers of unarticulated value judgements being left unexamined because of the ease with which “dignity” can be invoked, Sonia Lawrence has indicated another danger. Dignity may also be problematic if it leads to a focus on symbolic harm rather than substantive harm. Sonia Lawrence has suggested this looking at the contrast between the decisions of the Supreme Court of Canada in Trociuk and Gosselin. While the SCC found no violation of equality in Gosselin (where a young woman had been made to live a very difficult life filled with stress), the Court unanimously found a violation of equality in Trociuk, where the inequality concerned the ability of a father to chose the name for his child.

It may also lead to difficulties in the typical two stage human rights type inquiry: is there a prima facie violation of a right? If there is can it be justified as being necessary in the public interest in a democratic society? In both Canada and South Africa a discriminatory measure may be saved under the qualifications or limitation clause of the respective text. In this regard they are similar to the Article 14 jurisprudence of the European Convention, where a discriminatory measure can be saved if justifiable in democratic society for a public interest. The difficulty that comes in is the following: if dignity has been used to identify a discriminatory measure then the Court has labelled that measure as an affront to human dignity. This is such a strong criticism that it is difficult to see how a court could then turn around and find that the discrimination was justifiable. This creates a problem for judges which may provoke a tendency to raise the bar for deciding what measures are discriminatory. In raising that bar, certain measures may not be regarded as discriminatory and so never have to face the justification test. Yet that in itself is also problematic as is seen in cases such as the Canadian Foundation for Children, the Youth and the Law case.

19 contrary arguments. Ronald Dworkin has put forward an argument that equality is the most basic political value, one which must be presupposed before any other value.84 The famous philosophical explanation of dignity offered by Kant in his formulation of the categorical imperative also rests on an implicit assumption of equality.85

The notion of equality may actually turn out to be a more substantive one that the idea of dignity.

As Walsh J. observed in 1972, the guarantee of equality before the law is based on the dignity of the person, and

“a guarantee against any inequalities grounded upon an assumption, or indeed a belief,

that some individual or individuals or classes of individuals, by reason of their human

attributes or their ethnic or racial, social or religious background, are to be treated as the

inferior or superior of other individuals in the community.”86

The key question on this approach is not whether differential treatment is compatible with human dignity, but more precisely whether the impugned measure is predicated on an assumption of superiority or inferiority. An equality jurisprudence should strive to ensure that no one is made to feel the inferior or superior of another in the community. There are different ways in which such a hierarchy may be developed and a substantive equality jurisprudence must recognise and confront those mechanisms for hierarchy.

A person’s equal dignity in a community is respected when he or she can enjoy equally the benefits which are available to all. Yet experience teaches us that certain types of distinctions are frequently used to deny this equality of benefits. The lists provided in anti-discrimination rights provides us with historical and contemporary examples of grounds used to deny equality: race, ethnicity, sex, age, disability, religion, political opinion, sexual orientation. The most progressive of these anti-discrimination rights make it clear that these lists are open-ended and can

84 Dworkin, Ronald "In Defence of Equality" (1983) 1 Social Philosophy and Policy 31 85 Kant, Immanuel Groundwork of the Metaphysic of Morals, The Moral Law (London: Hutchinson, 1948). 86 Quinn's Supermarket v. Minister for Industry and Commerce [1972] Irish Reports 1, 13-14.

20 accommodate new types of discrimination, or recognise existing but long denied types of discrimination.87

The existence of a distinction, implicitly or explicitly, along one of these lines, should trigger a suspicion of a denial of equality. In doing this do, an equality jurisprudence runs the risk of losing its moorings if it fixates on the existence of such a distinction, implicit or explicit. This should not become a form of “slot machine jurisprudence”. There are many reasons why this first question should not be determinative. First, if we allow for indirect discrimination (implicit distinctions, or disparate impact) then a great many measures would be potentially deemed “suspicious”.

Second, whilst it may be difficult to imagine circumstances where racial discriminations would be tolerable, this is not necessarily the case for the other types of distinctions (sex, or age, or disability). Third, even for such presumptively unfair distinctions as those based on race, it may be possible to imagine circumstances where distinctions would be justifiable. Fourth, and leading on from these points, positive action, affirmative action and other forms of ameliorative policy would be endangered by too strong an insistence on the fact of a distinction (implicit or explicit) on certain grounds. Fifth we can imagine certain types of distinction which seem to be trivial and not troublesome at all. It is for all these reasons that judges frequently feel the need to include a further element in an equality test, requiring that the distinction be shown to be “unfair”

(recognising a rebuttable presumption that distinctions on certain specified grounds are unfair) in the South African context, or importing a requirement that the distinction be shown to impair the aims of equality rights, in that they violate human dignity or are otherwise shown to be serious, as in Canada.

There is a temptation to rely on the concept of dignity. It is certainly more parsimonious than enumerating the types of disadvantage that may be involved in particular cases. It is also from a tactical view rather appealing: it is inherently open ended and offers the reassurance that judges may decide to interpret it in the future as we would wish them to. It potentially has the ability, by

87 Section 15 of the Canadian Charter of Rights and Freedoms, Article 14 of the European Convention on Human Rights, Section 9 of the Constitution of South Africa.

21 being ambiguous, of uniting adherents from different camps into supporting the language of dignity and equality.

This is a step at which to be wary, and over which some judicial exponents of equality have tripped. We do better to delve behind the shibboleth of dignity and instead engage in the more time consuming and less elegant task of enumerating how a particular measure impairs (or in certain cases promotes) the equal enjoyment of the benefits of the community. Some judges, to their credit, have gone down this more difficult route, and have chosen not to hide their value judgements behind the cloak of dignity. In doing this the judgements may be useful in indicating how to focus attention on real questions of disadvantage, rather than the symbolic dangers of affronts to dignity. Further they have shown that it is possible to avoid levelling down by insisting that treating people as equals means treating them equally well.

As a conclusion, I should note that this paper does not argue against the right to dignity as such.

Such a right has been recognised in many constitutions, and may, with careful elaboration, have a valuable role to play. What this paper argues is that it is not a helpful addition to the development of equality jurisprudence. If it is to be incorporated its meaning should derive from the idea of equality itself, and the focus should not be allowed to shift from the questions raised by inequality to the shadowy figure of dignity.

22 Bibliography

Kommers, Donald Constitutional Jurisprudence of the Federal Republic of Germany (Durham and London: Duke University Press, 1997) Dupre, C. Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity (Oxford: Hart, 2003) Feldman, David "Human Dignity as a Legal Value - Part 1" (1999) Public Law 682 Feldman, David "Human Dignity as a Legal Value - Part 2" (2000) Public Law 61 Gearty, Conor Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004) OFMDFM v. A single Equality Bill for Northern Ireland [2004] Northern Ireland Human Rights Commission v. Progressing a Bill of Rights for Northern Ireland [2004] Grant and Small "Disadvantage and Discrimination: the emerging jurisprudence of the South African Constitutional Court" (2000) 51 Northern Ireland Legal Quarterly 174 McLachlin, B. "Equality: the most difficult right" (2001) 14 Supreme Court Law Review 17 Kelly, John, G. Hogan and G. Whyte The Irish Constitution (Dublin: Butterworths, 1994) Westen, Peter "The Empty Idea of Equality" (1982) 95 (537) Harvard Law Review Westen, Peter "On Confusing Ideas" (1982) 91 Yale Law Journal 1153 Westen, Peter "The Meaning of Equality in Law, Science, Maths and Morals" (1983) 81 (604) Mich. L. Review Westen, Peter "To Lure the Tarantula from its Hole" (1983) 83 Columbia Law Review 1186 Westen, Peter "The Substance of Equality" (1991) 89 Michigan Law Review 1350 Fredman, Sandra Introduction to Discrimination Law (Oxford: OUP, 2002) Dworkin, Ronald "In Defence of Equality" (1983) 1 Social Philosophy and Policy 31 Kant, Immanuel Groundwork of the Metaphysic of Morals, The Moral Law (London: Hutchinson, 1948)