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Principles and standards Archives: Non-discrimination and equal protection of the law

John Doe et al. v. Regional School Unit 26, No. 7455/2001, Decision 2014 ME 11

On 30/01/2014 in

Year: 2014 (Date of Decision: 30 January, 2014)

Forum, Country: Supreme Court; United States of America

Standards, Rights: Non-discrimination and equal protection of the law; Right to education; Rights to water and sanitation; LGBTI

Summary Background: Susan Doe is a transgender girl. Her identity as a girl is accepted by all parties and the diagnosis of her gender dysphoria is not disputed. The issue of her use of communal girl’s bathroom was not raised until September 2007, her fifth-grade year, when pressure started to come from other students and their families. As a response to this pressure, the school terminated Susan’s use of the girls’ bathroom and required her to use the single-stall, unisex staff bathroom. In her sixth-grade year at Orono Middle School, she was also denied use of the girl’s bathroom and instead required to use a separate, single-stall bathroom.

Holding: This case is an appeal by John and Jane Doe, the parents of Susan Doe, of a summary judgement from the Superior Court that was in favour of the Regional School Unit 26 against the Doe family. The family argued that the school’s decision to discontinue Susan’s use of a communal bathroom consistent with her gender identity was a violation of the prohibition of discrimination on the ground of sexual orientation and gender identity under the Maine Human Rights Act (MHRA) as amended in 2005. The Regional School Unit 26, for its part, argued that the nondiscrimination provision of the MHRA conflicts with the provisions regulating sanitary facilities in schools entailed in the Maine Revised Statute (20-A M.R.S. section 6501).

The Maine Supreme Judicial Court thus considered two issues: whether there was a conflict between the provisions of the two statutes; and whether the exclusion of Susan Doe from communal girl’s bathroom violated the Maine Human Rights Act.

In particular, the Court looked into the Public Accommodation section in the Maine Human Rights Act (section

The opportunity for every individual to have equal access to places of public accommodation without discrimination because of race, color, sex, sexual orientation, physical or mental disability, religion, ancestry or national origin is recognized as and declared to be a civil right.
and the Sanitary Facilities provision in Maine Revised Statute (20-A M.R.S. §6501). The former prohibited discrimination based on sexual orientation in public accommodations. The Court held that an elementary school is a place of public accommodation. The latter required a “school administrative unit shall provide clean toilets in all school buildings, which shall be…separated according to sex and accessible only by separate entrances and exits.” [paras. 14, 16 and 17 ].

The Court held that these statutes served different purposes and they were reconcilable by adopting a consistent reading. The public-accommodations and educational-opportunities provisions of the MHRA aimed to prohibit discrimination based on sexual orientation and to ensure equal enjoyment of and access to educational opportunities and public accommodations and facilities. The sanitary facilities provision on the other hand aimed to establish cleanliness and maintenance requirements for school bathrooms. It did not purport to establish guidelines for the use of school bathrooms and offered no guidance concerning how gender identity relates to the use of sex-separated facilities. It was the responsibility of each school to make its own policies concerning how to use these public accommodations and to ensure such policies comply with the MHRA [para. 19].

The Court held that the ban on Susan’s use of the girls’ bathroom constituted discrimination based on her sexual orientation. The Court refuted the defence of the School that it had to comply with the provision for sex segregation in sanitary facilities under the M.R.S. The Court asserted that the decision of the school to discontinue the use by Susan of the girl’s bathroom was not based on a change of her status, but solely on complaints by others. The decision was adversely affecting Susan’s psychological wellbeing and educational success. The Court established that this discrimination based on Susan’s sexual orientation violated the MHRA [para. 22].

Link to Full Case: http://www.maine.gov/mhrc/doe.pdf

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Kong Yunming v. Director of Social Welfare, FACV No. 2

On 17/12/2013 in

Year: 2013 (Date of Decision: 17 December, 2013)

Forum, Country: Court of Final Appeal; Hong Kong

Standards, Rights: Proportionality; Non-discrimination and equal protection of the law; Right to social security; Migrants

Summary Background: This judicial review of the complainant’s rejected social security application assessed the constitutionality of the seven-year residence requirement for social security. The complainant moved to Hong Kong to live with her husband, but she became homeless because her husband passed away a day after her arrival and his residence was repossessed. The complainant applied for social security four months after arriving in Hong Kong. The complainant would have qualified for social security but for the new seven-year residence requirement.

Holding: Ribeiro J; Tang PJ, Lord Phillips NPJ & Ma CJ concurring: The Court held that policies formulated to uphold the right to social welfare in article

Hong Kong residents shall have the right to social welfare in accordance with law. The welfare benefits and retirement security of the labour force shall be protected by law.
of the Basic Law must be read together with “economic conditions and social needs”, as per article
On the basis of the previous social welfare system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs.
[paras. 17 and 18].

Article 145 does not preclude reducing welfare entitlements if that maintains the sustainability of the welfare system [para. 37]. Although the Court did not recognize the right to social welfare as a fundamental right, it held that that population growth, an ageing population and rising social security expenditure were not rational justifications for the seven-year requirement, as there were other means of addressing those problems [paras. 66, 75, 96].

The Court indicated that deterring immigration, immigrants’ ability to rely on charities were not arguments for the reasonable proportionality of the seven-year requirement [sections L.1 and L.2]. The Court ruled that the Director’s discretion in and guidelines for waiving the seven-year requirement presented immigrants with “a very high threshold” [section L.3, para. 136].

Bokhary NPJ stated that the seven-year requirement violated the principle of equality before the law under article 25 of the Basic Law and article 22 of the Hong Kong Bill of Rights, the latter of which is taken from article 26 of the ICCPR. Bokhary NPJ also held that article 145 of the Basic Law implies that social security policies should be formulated progressively rather than retrogressively. Bokhary NPJ also cited Basic Law provisions that constitutionally guarantee articles 2 and 9 of the ICESCR, as well as CESCR’s concluding observations in 2005 on Hong Kong.

The Court unanimously declared the Director’s seven-year residence requirement to be unconstitutional, restoring the previous one-year requirement [para. 144].

Additional Comments: What distinguished Bokhary NPJ’s separate concurring judgement was his account for international human rights law as well as his emphasis on constitutional guarantees for all Hong Kong residents, including non-permanent ones like the complainant.

Link to Full Case: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=90670

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Reyes Aguilera, Daniela v. Argentina

On 05/02/2013 in

Year: 2013 (Date of Decision: 5 February, 2013)

Forum, Country: Supreme Court; Argentina

Standards, Rights: Reasonableness; Proportionality; Nondiscrimination and equal protection of the law; Right to health; Right to social security; Right to an adequate standard of living; Children; Persons with Disabilities; Migrants

Summary Background:

The petitioners in the case asked for a court order compelling the Comisión Nacional de Pensiones Asistenciales (national agency in charge of welfare pensions) to grant a disability pension to Daniela Reyes Aguilera, a 12-year-old Bolivian girl with a severely disabling condition. On the basis of national constitutional law and international human rights law, the petition challenged a discriminatory regulation requiring immigrants to prove 20 years of residence in Argentina to become eligible for a disability pension.

Holding: The Court decided the case in favour of the petitioners and declared that Daniela was entitled to obtain benefits.

The Court affirmed that there is a cognizable human right to social security. The eligibility requirement of 20 years residency for immigrants to receive disability pension was found to be unconstitutional as it was not justified [pp. 8, 27, 34 and 41], was unreasonable (“irrazonable”) [p. 39] and was a disproportionate limitation to the right to social security. The decision also cited other grounds for unconstitutionality of the rule including breach of the right to non-discrimination on the basis of national origin [p. 2 and p. 36], as well as violation of the rights to life [pp. 15], equality before the law [p. 5, 19] and right to health and social security [p. 7].

Additional Comments: The strict scrutiny test was applied. It is also important to note that since the judgement applied only to the case brought before the Court, Daniela did receive a disability award as per the Court’s decision but the residency requirement rule for immigrants was not altered.

Link to Full Case: http://www.cels.org.ar/common/documentos/reyes_aguilera.pdf, summary in English at http://www.escr-net.org/docs/i/1091579

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ADPF 186 (Arguição de Descumprimento de Preceito Fundamental n.186)

On 26/04/2012 in

Year: 2012 (Date of Decision: 26 April, 2012)

Forum, Country: Supreme Court; Brazil

Standards, Rights: Reasonableness; Proportionality; Non-discrimination and equal protection of the law; Right to education

Summary Background: The issue at stake in this case is the constitutionality of racial quotas in the admission process at the University of Brasilia.

Holding: In this case, the Brazilian Federal Supreme Court declared the racial quotas in University admission processes to be constitutionally lawful. The case referenced national constitutional law as well as the International Convention on the Elimination of All Forms of Racial Discrimination [p. 8]. The Court stated that these affirmative policies set a plural and diversified academic environment, and aimed at overcoming historically entrenched social distortions as well as to promote the principle of de facto equality as applied to racial discrimination in education [p. 47].

The Court addressed the issues of proportionality and reasonability as standards to evaluate the constitutionality of policies aimed at achieving racial equality. The decision concluded that the means employed by the University were distinguished by proportionality and reasonability to the ends pursued, particularly given the transient nature of their scope of application (with the inclusion of a periodic review of as to results) [p. 45].

The President of the Court asserted that the Constitution has given legitimation to every public policy promoting historically and culturally marginalized social sections: “[t]hose are affirmative policies entitling every human being the right to an equal and respectful treatment. This is the way we build up a nation”.[254] During the Court session, the Ministers (the title given to Supreme Court Judges in Brazil) stated that the quotas were compatible with the Constitutional mandate to establish a free, fair and united society and the eradication of social marginalization and inequality.

Additional Comments: The decision confirmed the constitutionality of racially-based affirmative action programs adopted by other universities in Brazil. Brazilian universities who have adopted affirmative action can now preserve these programs.

Link to Full Case: http://www.acoes.ufscar.br/admin/legislacao/arquivos/arquivo13.pdf

Footnotes    (↵ returns to text)

  1. 254. See the information provided by the Federal Tribunal, accessible at: http://www2.stf.jus.br/portalStfInternacional/cms/destaquesClipping.php?sigla=portalStfDestaque_en_us&idConteudo=207138↵
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R.K.B. v. Turkey (Communication No. 28/2010)

On 24/02/2012 in

Year: 2012 (Date of Decision: 24 February, 2012)

Forum, Country: UN CEDAW; Turkey

Standards, Rights: Non-discrimination and equal protection of the law; Right to decent work; Women

Summary Background: In this case, the issue at stake was whether the complainant (or “author” of the communication) had been unjustifiably dismissed from her workplace on the basis of gender stereotypes. While she had been fired due to a rumour that she had had an extra-marital affair with a male colleague, her male co-worker’s contract was not terminated. Before leaving, under threat of the spread of rumours of her relationship with other men, she was pressured, but refused, to sign a document that attested that she had benefited from all her rights under contract. Local courts had found in her favour but did not reference gender discrimination.

Holding: The Committee found that the local Turkish courts [State institutions] failed to give due consideration to the clear, prima facie indication of infringement of equal treatment in the field of employment [para. 8.6]. By scrutinizing in the course of the case, the moral integrity of only the author (a female employee) but not that of male employees, the courts revealed their lack of gender sensitivity in breach of Committee observations in General Recommendation No. 28 (2010) [paras. 8.6-8.7]. The Committee emphasized that full implementation of the Convention imposes an obligation on States parties not only to take steps to eliminate direct and indirect discrimination and improve the de facto position of women, but also to modify and transform gender stereotypes and eliminate wrongful gender stereotyping, a root cause and consequence of discrimination against women. The Committee was of the view that gender stereotypes are perpetuated through a variety of means and institutions including laws and legal systems and that they may be perpetuated by State actors in all branches and levels of government and by private actors. In this case, the courts had helped perpetuate gender stereotyping [para. 8.8].

The Committee concluded that the author’s rights against gender stereotyping and gender discrimination as guaranteed under ICEDAW had been violated. Accordingly the Committee held that appropriate reparation should be provided to the author; that the State should take measures to implement laws on gender equality in the workplace; and that the State should provide training to judges, lawyers and law enforcement personnel on the Convention and women’s rights so as to ensure that stereotypical prejudices and values do not affect decision-making [para. 8.10].

Additional Comments: The decision highlights that merely adopting Comments: legislation protecting rights is never sufficient. Proper enforcement is key to the effective realization of rights.

Link to Full Case: http://www2.ohchr.org/english/law/jurisprudence.htm, direct link: http://www2.ohchr.org/english/law/docs/CEDAW/CEDAW-C-51-D-28-2010_en.doc

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A v. Municipality of Egedal and Ministry of Labour

On 15/02/2012 in

Year: 2012 (Date of Decision: 15 February, 2012)

Forum, Country: Supreme Court; Denmark

Standards, Rights: Core content; Non-discrimination and equal protection of the law; Margin of discretion; Right to an adequate standard of living; Right to social security; Migrants

Summary Background: After having been granted refugee status in 2003, the applicant received ‘Start Help’ benefits (reduced unemployment benefits) until 2007, instead of regular unemployment benefits, which could only be granted to persons who had spent at least seven years in Denmark.

He claimed that this violates article 75.2 of the Constitution, which obliges the State to help those who cannot support themselves. Moreover, he alleged a violation of article

articleThe enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
ECHR (prohibition of discrimination) in conjunction with article
1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
(right to respect for private and family life) and article
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Protocol 1 ECHR (protection of property) because the requirement of having spent at least seven years in Denmark affects relatively more foreigners than Danish nationals and therefore constituted an indirect discrimination.

Holding: The Supreme Court found that article 75.2 of the Constitution entails an obligation for the State to ensure a minimum level of existence for persons covered by it. However, the court found that the size of the ‘Start Help’ and other benefits that the applicant received were sufficient to satisfy this provision. With regard to the ECHR, the Court noted that it leaves the States wide discretion to determine matters of social and economic policy. Therefore, the Court held that ‘Start Help’ did not constitute indirect discrimination in contravention to article 14 ECHR in conjunction with article 1 Protocol 1 ECHR.

Additional Comments: ‘Start Help’ was abolished in December 2011 and the regular unemployment benefits may now be obtained even if the person in question has not resided in Denmark for a specified period of time.

Link to Full Case: http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/den/den-2012-3-001

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