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The Equal Rights Review The Equal Rights Review Promoting equality as a fundamental human right and a basic principle of social justice In this issue: ■ Special: Detention and discrimination ■ Gender identity jurisprudence in Europe ■ The work of the South African Equality Courts ■ Homophobic discourses in Serbia ■ Testimony from Malaysian mak nyahs The Equal Rights Review Volume Seven (2011) Seven Volume Review Rights The Equal Biannual publication of The Equal Rights Trust Volume Seven (2011) Contents 5 Editorial Detained but Equal Articles 11 Lauri Sivonen Gender Identity Discrimination in European Judicial Discourse 27 Rosaan Krüger Small Steps to Equal Dignity: The Work of the South African Equality Courts 44 Isidora Stakić Homophobia and Hate Speech in Serbian Public Discourse: How Nationalist Myths and Stereotypes Influence Prejudices against the LGBT Minority Special 69 Stefanie Grant Immigration Detention: Some Issues of Inequality 83 Amal de Chickera Draft Guidelines on the Detention of Stateless Persons: An Introductory Note 105 The Equal Rights Trust Guidelines on the Detention of Stateless Persons: Consultation Draft 117 Alice Edwards Measures of First Resort: Alternatives to Immigration Detention in Comparative Perspective Testimony 145 The Mak Nyah of Malaysia: Testimony of Four Transgender Women Interview 157 Equality and Detention: Experts’ Perspectives: ERT talks with Mads Andenas and Wilder Tayler Activities 179 The Equal Rights Trust Advocacy 186 Update on Current ERT Projects 198 ERT Work Itinerary: January – June 2011 4 The Equal Rights Review is published biannually by The Equal Rights Trust. The opinions expressed in authored materials are not necessarily those of The Equal Rights Trust. Editor: Dimitrina Petrova Assistant Editor: Libby Clarke Advisory Editorial Board: Sandra Fredman, Colin Gonsalves, Bob Hepple, Claire L’Heureux-Dubé, Christopher McCrudden, Bob Niven, Kate O’Regan, Michael Rubenstein, David Ruebain, Sylvia Tamale © August 2011 The Equal Rights Trust PrintedDesign in and the layout:UK by Prontaprint Dafina Gueorguieva Bayswater ISSN: 1757-1650 All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by any means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Center, USA. Support the cause of equality The Equal Rights Trust is a charity relying on the support of the public. To make a donation online, please visit www.equalrightstrust.org, or send a bank transfer, The Equal Rights Trust’s account chequenumber to the with office Coutts address Bank below. (UK) is:For 07130988; donations by IBAN GB43COUT18000207130988; Bank address: Coutts & Co., 440 Strand, London WC2R 0QS The Equal Rights Trust 126 North End Road London W14 9PP United Kingdom Tel.: +44 (0)207 610 2786 Fax: +44 (0)203 441 7436 [email protected] www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England and a registered charity. Company number 5559173. Charity number 1113288. The Equal Rights Review, Vol. Seven (2011) 5 Editorial Detained But Equal Human rights are universal, but human suffered degrading abuse while in custody. rights violations are not. Some people are In this issue, the Testimony section reveals at higher risk of having their rights violat- disgraceful conduct of law enforcement of- ed. When the higher risk is associated with mak nyahs remove more or less stable personal characteristics their clothes, sexual assault, humiliating ridi- such as race, sex, religion, disability, sexual cule,ficers, and such beatings. as making The the mak nyahs in deten- orientation, etc., and materialises in a less tion are more vulnerable and have a stronger favourable treatment or a particular disad- protection need than other Malaysians in de- vantage, the result may amount to discrimi- tention, as well as compared to trans persons nation: a violation of the fundamental right outside detention. to equality. Furthermore, there is one important sense Most situations and settings in a person’s in which, if one is discriminated against in life can be the context in which discrimi- the context of detention, one can experience nation occurs. However, discrimination in more damage and despair than if they are some contexts may be more damaging than discriminated against in other very dan- in other. When we are sitting peacefully gerous contexts, such as being a victim of among our loved ones at the dinner table a hate crime at the hands of some vigilante at home, we feel safe, and less exposed to group, or being a member of a disadvan- discrimination. But when we have been de- tained and are sitting in an unfamiliar cell latter situations, one can at least hope that in some detention centre, we may feel that thetaged state group – the during duty bearer armed against conflict. whom In these we our life as we know it has ended. Indeed, claim our rights – might step in to protect anyone who has spent time in detention us, or deliver justice and provide remedy would agree that few life experiences make to us at some future point. In principle, the us more vulnerable. state is on our side. But the discrimination that occurs in the context of detention is an Now, if we combine the higher risk of being act done by the very agency that should be a victim of discrimination due to possess- our rights protector. While there are a num- ing a certain personal characteristic with ber of other contexts in which the state is the higher risk arising from being in deten- the discriminator, e.g. in public sector work- tion, the result is a risk on a different scale, places, detention is a case in which the state and in any case much greater than its two has more control over more aspects of a components. For example, the mak nyahs in person’s life. Hence, the protection needs of Malaysia – the transgender persons who fre- members of disadvantaged groups in deten- tion should be a very high priority in both quently find themselves in detention – have The Equal Rights Review, Vol. Seven (2011) 6 domestic judicial and international scrutiny in my view a somewhat academic question over the enjoyment of human rights, as well on which there may be legitimate differenc- as, of course, a constant preoccupation of es of opinion among human rights theorists. civil society watchdogs. The interview with Mads Andenas and Wilder Tayler in this is- Nonetheless, prioritising human rights sue provides an expert stocktaking on the work is an inescapable task in view of the issue of discriminatory detention in inter- limited capabilities of the human rights national human rights. movement compared with the enormity of human rights violations around the world. Of all categories of persons who are at high- And in prioritising work from the point of er risk of discrimination in the context of view of the equality of rights, ERT followed detention, non-citizens should be further a certain logical path – sketched above – in singled out: compared to nationals, they arriving at the conclusion that the detention face additional problems arising from being of stateless persons should be an issue cen- an alien – poorer or non-existent support tral to its thematic choices. networks, language problems, xenophobia, etc. There are different types of detention – Here is the important question: Why is it criminal, immigration, or security; however, then that after decades of functioning of an aliens are at higher risk of discrimination in international system of human rights protec- all detention settings. tion, this issue had received so little atten- tion that when ERT published, in July 2010, Does it get any worse than that? Or rather, its report Unravelling Anomaly: Detention, are all aliens equally at risk of discrimination Discrimination, and the Protection Needs of - Stateless Persons, cult to make general assertions as to which comprehensive report on the issue? The re- countries’in the context nationals of detention? fare worst While at the it is hands diffi port itself posed and it was answered greeted this as question: the first of which other countries’ detaining authori- the answer was the very history of construct- ties, it is clear that there is one category of ing the anomaly of “statelessness”, taken to- persons on behalf of whom no state would gether with states’ propensity to keep un- step in as a rights guarantor: the stateless. desirable immigrants out of their borders, Being stateless while in detention may be the whereby detention has increasingly become bottom of a vortex of rights denial. a tool of migration management. The report At this point, some readers will object this and exposed – that the potential for discrimi- line of thought: there is no hierarchy of hu- nationconfirmed which – through I deduced the above evidence from it therelied basic on man rights, there is no hierarchy of victims axioms of human rights had materialised in of human rights abuses! Really? How do we a massive tragedy of broken lives, scattered then reconcile the holistic doctrine of “no throughout the world. hierarchy” with the need to be pragmatic and make strategic choices? And is it even In the Special section, in a crisp and clear correct to interpret the universality, indivis- background article Stefanie Grant frames ibility and inter-connectedness of human the more general issue of discriminatory rights as a lack of hierarchy, be that a hierar- detention in the context of international chy of rights or of rights violations? This is human rights law. She looks at discrimina- The Equal Rights Review, Vol. Seven (2011) 7 tion in respect to the decision to detain, critique as possible, ERT is intent on reach- and then to discrimination in respect to ing out to a broader circle of interested per- a number of conditions of detention.
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