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Chapter 11 – Equality Chapter 11 Equality Equality Chapter 11 208 Introduction – Meghan Campbell and Karl Laird 210 The Equality Agenda in 2015: Part I- The Constitutional Issues 211 The Equality Agenda in 2015: Part II- Access to Justice 212 The Equality Agenda in 2015: Part III- Advancing Equality 213 Rights Protection in 2014: A Review of the Indian Supreme Court 214 Public Consultation on the Overhaul of Hong Kong Anti-Discrimination Laws 216 Does Affirmative Action Create Unfair Advantage? 217 Everyday Utopias and Challenging Preconceptions WOMEN AND GENDER 218 International Women’s Day: Women and Girls Struggle for Equality in the Courts 219 Inspiring Change Through Law for International Women’s Day 220 The ‘Bludgeon’ Nominees in the Gender Justice Uncovered Awards 2015 221 Winning Decisions in the 2014 Gender Justice Uncovered Awards 222 How can Judges be Held Accountable? 223 Rethink needed as new Australian High Court Justice appointment seems to maintain gender imbalance 224 Judicial Appointment of Women on the Decline in Canada and Australia 225 Gender and the Judiciary: Bosnia and Herzegovina 226 Belgian Parliament Introduces Sex Quota in Constitutional Court 228 Revisiting Mass Sterilisation in India – Population Management or Menace? 229 The Rhodes Project: Celebrating Many Versions of What Women Can Be 230 Menopausal Women Fear Discrimination in the Workplace 231 Pregnancy Discrimination in the Australian Workplace 232 Recognising Maternity Leave as a Human Rights Obligation 233 Improving the Law for Pregnant Women and Working Parents 234 The Family Agenda: Promoting Traditional Values in the Human Rights Council 236 Burwell v Hobby Lobby – a narrow decision? 237 Breaking the Cycle of Gender Inequality 238 Thematic Report – Economic and Social Life with a Focus on Economic Crisis 239 Girls with Books, Better Laws, Pave the Way Ahead 241 The Uneasy Decision in A and B v Secretary of State for Health 242 Northern Ireland’s Human Rights Commission Granted Leave for Judicial Review to Challenge the Country’s Near-Blanket Ban on Abortion 243 Stereotyping as Direct Discrimination? 244 What Has the European Union Ever Done for Women? 245 Older Homeless Women in Australia 246 (In)justice Served? Lori Douglas Case Leaves More Questions than Answers for Canadians 247 ‘GamerGate’ and Gendered Hate Speech 248 Harassment Against Women Goes Online: the Problem of Revenge Porn 249 UK Efforts to Criminalize Revenge Porn: Not a Scandal, but a Sex Crime 250 CEDAW Issues a Historic Ruling in a Gender Violence Case Equality Chapter 11 252 Mega Event Tactics: Brazil’s Sex Industry During the World Cup 2014 253 Male Rape in Armed Conflicts: Why We Should Talk About It 254 Rape and the Failure of the Criminal Justice System 254 Sexual Violence in Modern Myanmar 255 Are Women’s Rights Really Human Rights? 256 Omnipresent in the EU: Violence Against Women 258 The Women Empowerment and Gender Equality Bill: Can It Live Up to Its Name? RACE AND ETHNICITY 259 Concerns about Greece from the European Commission against Racism and Intolerance 260 Recognising Travellers’ Needs: The Courts Begin to Move 261 A House Divided: Grappling with Affirmative Action in South Africa 262 Brazil’s Laws on Quotas and the Road to Racial Equality 263 Schuette v BAMN: a Need to Rethink Equal Protection 265 The New Barbarians: Bulgarians and Romanians at the Gate! DISABILITY 266 Mainstreaming Disability in Development: The need for a Disability-Inclusive Post-2015 Development Agenda 266 Indian Lip Service to the UNCRPD: Examining the Persons with Disabilities Bill 2014 268 The Problem of Progressive Realization – Protecting the Rights of the Disabled in Jamaica 269 A Successful First Instance Challenge to Bedroom Tax 270 Schuette: The Latest in the Affirmative Action Saga 271 Nigerian Standup Comedians and Differently Abled Persons from a Human Rights POVERTY 272 First Lady of Rwanda – Women and Poverty: A Human Rights Approach 273 Equality Interrupted: The Rajasthan Panchayati Raj Act, 2nd Amendment, Ordinance, 2014 and the Selective Disqualification of Candidates 274 P v Cheshire West and Chester Council: Shaping Deprivations of Liberty 276 Cheshire West and the Repugnant Conclusion LGBTIQA 276 Searching for the “T” in LGBT Advocacy 278 Gays: a Prohibited Class in CARICOM? 279 Uganda’s Anti-Homosexuality Law and Our Cultural Wars 280 From Torment to Tolerance and Acceptance to the Everyday: The Course of LGBT Equality in the UK 281 Scotland’s Gay Rights Journey 283 Naz and Reclaiming Counter-Majoritarianism 284 Over to you, Parliament – The Significance of the Australian High Court’s Judgment on Same-Sex Marriage 285 Reviewing Koushal: Counting Down the Errors Apparent on the Face of the Record 286 Surrogacy, Same-Sex Couples and the Privatisation of Regulation in Israel 287 What Next for LGBT Equality? Equality Chapter 11 288 Hämäläinen v Finland: The Transgender Divorce Requirement in Strasbourg 290 Curing the Koushal Malady 290 India’s Third Gender and The Kaushal Problem INDIGENOUS RIGHTS AND HUMAN RIGHTS 292 The Right to Prior Consultation of Indigenous Peoples in the Americas (Part I) 293 The Right to Prior Consultation of Indigenous Peoples in the Americas (Part II) 294 Establishing Aboriginal Title in Canada: Tsilhqot’in Nation v British Columbia 295 Indigenous Ecuadorians Bring Protracted Legal Battle Before the Supreme Court of Canada Equality Chapter 11 Introduction By Dr Meghan Campbell and Karl Laird Equality has been described as the most challenging right but it is also one of the key rights in transforming institutions and societies to ensure that all people are empowered to create and enjoy a meaningful life. Equality is a universally recognised right that is often entrenched in national constitutions and a foundational value of many national and international legal orders. While there may be broad agreement on the value of achieving equality, the posts collected in this chapter emphasise that there continues to be deep disagreement on how equality should be conceptualised and how national and international laws and policies can further this universal aim. After commencing with a collection of posts that focus upon some of the overarching questions that inform the current ‘equality agenda’ – namely affirmative action, new approaches to implementing and monitoring equality outside of the court structure and the impacts of austerity measures – the chapter is then sub-grouped on traditional and emerging status based grounds of inequality: women and gender; race and ethnicity; disability; poverty; LGBTIQA; and indigenous and human rights. Both the victories and continuing struggles for gender equality best exemplify the continued confusion on the substantive meaning of equality. The judiciary has been one site where gender equality is proving to remain elusive. Throughout the common-law world, and in many civil jurisdictions, the composition of the judiciary remains overwhelming male, notwithstanding the increasing number of women entering law school and practicing in the legal profession. Indeed, there still remains deep resistance to even recognising the gender imbalance in the judiciary. Kim Rubenstein forcefully responds to that critique, stating: ‘it is difficult to dispute that we already have a system of affirmative action in favour of men. Do men really merit this outcome or is the system, by unspoken assumption, looking after them?’ (‘Rethink needed as new Australian High Court Justice appointment seems to maintain gender imbalance’ p 223). With the urgency to have women on the bench and the failed past attempts to achieve this, Belgium just recently took an important step forward and passed legislation requiring a gender quota for the Constitutional Court (‘Belgian Parliament Introduces Sex Quota in Constitutional Court’ p 226). However, when it comes to realising gender equality in relation to reproductive issues, the response has been decidedly mixed. On the positive side, the Convention on the Elimination of All Forms of Discrimination Against Women Committee held that ‘failing to provide maternity benefits is a direct form if gender based discrimination’ (‘Recognising Maternity Leave as a Human Rights Obligation’ p 232). This is an important recognition as it ensures that women are not financially punished for having children. In Northern Ireland, the country’s strict laws on abortion were challenged on the grounds that it discriminated against women living there who had to incur the cost of travelling to other parts of the UK where the procedure is legal and available. The High Court held that this increased difficulty faced by women in Northern Ireland did not amount to discrimination underArticle 14 of the ECHR. Beth Grossman observes that ‘it seems fundamentally unfair that a reproductive right long established in and enjoyed by women in every other country of the United Kingdom be logistically and financially restricted for those in Northern Ireland on relatively technical legal grounds’ (‘The Uneasy Decision in A and B v Secretary of State’ p 241). Richard Martin explains that due to several other high profile cases, though, the Department of Justice in Northern Ireland has engaged in a public consultation on reforming the criminal law on abortion to consider allowing abortion in cases of a fatal fetal abnormality or where pregnancy is the result of rape (‘Northern Ireland’s Human Rights Commission Granted Leave for Judicial Review to Challenge the Country’s Near- Blanket Ban on Abortion’ p 242). While this does not guarantee increased access
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