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Advancing Equality

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Advancing Equality ADVANCING EQUALITY ADVANCING In a world where attacks on the basic human rights and equal PUBLIC AFFAIRS worth of all people are escalating, Advancing Equality reminds us of the critical role of constitutions in protecting equal rights. An- ADVANCING alyzing the constitutions of all 193 United Nations countries, this book traces fifty years of change in constitution drafting and ex- amines how stronger protections against discrimination, along- EQUALITY side core social and economic rights, can transform lives. Looking across gender, race and ethnicity, religion, sexual orientation and gender identity, disability, social class, and migration status, the How Constitutional authors reveal whose rights are increasingly guaranteed in con- stitutions, identify which nations and groups lag behind, and share Rights Can Make inspiring stories of activism and powerful court cases from around the globe. Advancing Equality serves as a comprehensive call to a Difference action for anyone who cares about their country’s future. “Advancing Equality shows how far we have come around the Worldwide world in protecting human rights, but also how far we still have to Foreword by Dikgang Moseneke, go. Working together and taking action, we can make sure every- former Deputy Chief Justice of South Africa one’s rights, particularly the most discriminated against and mar- ginalized, are protected in every constitution and enforced by law and societal change to realize true equality and a better world.” Make a Difference Worldwide a Difference Make How Constitutional Rights Can ANTONIA KIRKLAND, Global Lead, Legal Equality and Access to Justice, at Equality Now JODY HEYMANN is an elected member of the National Acad- emy of Sciences, Director of the WORLD Policy Analysis Center, and Distinguished Professor of Public Policy at the UCLA Luskin School of Public Affairs and of Health Policy and Management at the UCLA Fielding School of Public Health. ALETA SPRAGUE is Se- nior Legal Analyst at the WORLD Policy Analysis Center and an attorney whose career has focused on advancing public policies and laws that address inequality. AMY RAUB is Principal Research Analyst at the WORLD Policy Analysis Center and an economist HEYMANN with over a decade of experience working on discrimination and SPRAGUE inequality. RAUB UNIVERSITY OF CALIFORNIA PRESS www.ucpress.edu | www.luminosoa.org A free ebook version of this title is available through Luminos, University of California Press’s Open Access publishing program for monographs. JODY HEYMANN Visit www.luminosoa.org to learn more. Cover illustration: A young South African girl from the Xhosa tribe works on her studies and jokes ALETA SPRAGUE with her friends in a classroom in the Transkei region of rural South Africa. © epicurean/gettyimages AMY RAUB Luminos is the Open Access monograph publishing program from UC Press. Luminos provides a framework for preserving and reinvigorating monograph publishing for the future and increases the reach and visibility of important scholarly work. Titles published in the UC Press Luminos model are published with the same high standards for selection, peer review, production, and marketing as those in our traditional program. www.luminosoa.org Advancing Equality The publisher and the University of California Press Foundation gratefully acknowledge the generous support of the Anne G. Lipow Endowment Fund in Social Justice and Human Rights. Advancing Equality How Constitutional Rights Can Make a Difference Worldwide Jody Heymann, Aleta Sprague, and Amy Raub Foreword by Dikgang Moseneke UNIVERSITY OF CALIFORNIA PRESS University of California Press Oakland, California © 2020 by Jody Heymann, Aleta Sprague, and Amy Raub This work is licensed under a Creative Commons CC BY-NC-ND license. To view a copy of the license, visit http://creativecommons.org/licenses. Suggested citation: Heymann, J., Sprague, A. and Raub, A. Advancing Equality: How Constitutional Rights Can Make a Difference Worldwide. Oakland: University of California Press, 2020. DOI: https://doi.org/10.1525/ luminos.81 Cataloging-in-Publication Data is on file at the Library of Congress. ISBN 978-0-520-30963-0 (pbk. : alk. paper) ISBN 978-0-520-97387-9 (ebook) 28 27 26 25 24 23 22 21 20 10 9 8 7 6 5 4 3 2 1 To our children and yours “Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of free- dom, justice and peace in the world.” —universal declaration of human rights (1948), preamble Contents List of Illustrations xi Foreword by Dikgang Moseneke xv 1. The Urgency of Advancing Equality 1 Part One: Equal Rights and Nondiscrimination 2. Historic Exclusion and Persisting Inequalities: Advancing Equal Rights on the Basis of Race and Ethnicity 19 3. Why Addressing Gender Is Foundational 45 4. One in Thirty: Protecting Fundamental Rights for the World’s Migrants and Refugees 71 5. Negotiating the Balance of Religious Freedom and Equal Rights 97 6. Moving Forward in the Face of Backlash: Equal Rights Regardless of Sexual Orientation and Gender Identity 128 7. From Nondiscrimination to Full Inclusion: Guaranteeing the Equal Rights of People with Disabilities 151 8. Ensuring Rights and Full Participation Regardless of Social and Economic Position 178 x Contents Part Two: Social and Economic Rights That Are Fundamental to Equality 9. The Right to Education: A Foundation for Equal Opportunities 199 10. The Right to Health: From Treatment and Care to Creating the Conditions for a Healthy Life 225 11. How Far Has the World Come? 251 12. Each of Us, All of Us: Taking Action to Strengthen Rights Globally 272 Acknowledgments 285 Appendix: Methods 291 Glossary 299 Notes 301 Index 375 List of Illustrations MAPS 1. Does the constitution explicitly guarantee equality or nondiscrimination across race/ethnicity? 23 2. Does the constitution explicitly guarantee equality or nondiscrimination across language? 25 3. Does the constitution explicitly provide for the right to education in their own language for linguistic minorities? 26 4. Does the constitution explicitly allow for affirmative measures to advance equal opportunities across race/ethnicity? 43 5. Does the constitution explicitly guarantee equality or nondiscrimination across sex and/or gender? 50 6. Does the constitution explicitly protect women’s right to equality in marriage in all aspects including entering, exiting, and within marriage? 55 7. Does the constitution explicitly protect noncitizens’ general right to educa- tion or specific right to primary education? 77 8. Does the constitution take an explicit approach to protecting noncitizens’ right to equality at work or decent working conditions? 81 9. Does the constitution explicitly guarantee an approach to noncitizens’ right to health? 86 xi xii List of Illustrations 10. Does the constitution explicitly guarantee equality or nondiscrimination for noncitizens? 89 11. Does the constitution explicitly guarantee noncitizens’ right to freedom of movement? 92 12. Does the constitution explicitly guarantee equality or nondiscrimination across religion? 106 13. Does the constitution take an explicit approach to protecting freedom of religion? 109 14. Does the constitution explicitly protect freedom to not believe in religion? 109 15. Does the constitution explicitly protect freedom of religion from infringing on the rights of others? 111 16. What is the constitutional role of religion in countries where the state is affiliated or under the jurisdictional control of a specific religion? 113 17. How do countries that identify in their constitution as secular treat religion? 119 18. Does the constitution explicitly guarantee equality or nondiscrimination across sexual orientation and gender identity? 134 19. What is the constitutional status of same-sex marriage? 135 20. Does the constitution explicitly guarantee equality or nondiscrimination for persons with disabilities? 157 21. Does the constitution explicitly guarantee the right to education for children with disabilities? 159 22. Does the constitution explicitly guarantee the right to work for adults with disabilities? 159 23. Does the constitution explicitly guarantee the right to health for persons with disabilities? 161 24. Does the constitution explicitly guarantee equality or nondiscrimination across socioeconomic status? 183 25. Does the constitution explicitly guarantee some aspect of citizens’ right to education? 210 26. Does the constitution explicitly guarantee citizens’ right to secondary education? 210 27. Does the constitution explicitly guarantee citizens’ right to higher education? 210 28. Does the constitution explicitly guarantee citizens’ right to free primary education? 214 List of Illustrations xiii 29. Does the constitution explicitly guarantee citizens’ right to free secondary education? 214 30. Does the constitution explicitly guarantee citizens’ right to free higher education? 214 31. Does the constitution explicitly guarantee equal opportunities or nondiscrimination in education? 217 32. Does the constitution explicitly provide for compulsory education? 218 33. Does the constitution explicitly guarantee an approach to the right to health? 232 34. Does the constitution explicitly guarantee citizens’ right to public health? 233 35. Does the constitution explicitly guarantee citizens’ right to a healthy environment? 234 36. Does the constitution explicitly guarantee citizens’ right to medical care? 235 FIGURES 1. Explicit constitutional guarantee of equality or nondiscrimination
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