non discrimination essays

Essays About Discrimination: Top 5 Examples and 8 Prompts

You must know how to connect with your readers to write essays about discrimination effectively; read on for our top essay examples, including prompts that will help you write.

Discrimination comes in many forms and still happens to many individuals or groups today. It occurs when there’s a distinction or bias against someone because of their age, race, religion, gender, sexual orientation, or disability.

Discrimination can happen to anyone wherever and whenever they are. Unfortunately, it’s a problem that society is yet to solve entirely. Here are five in-depth examples of this theme’s subcategories to guide you in creating your essays about discrimination.

1. Essay On Discrimination For Students In Easy Words by Prateek

2. personal discrimination experience by naomi nakatani, 3. prejudice and discrimination by william anderson, 4. socioeconomic class discrimination in luca by krystal ibarra, 5. the new way of discrimination by writer bill, 1. my discrimination experience, 2. what can i do to stop discrimination, 3. discrimination in my community, 4. the cost of discrimination, 5. examples of discrimination, 6. discrimination in sports: segregating men and women, 7. how to stop my discrimination against others, 8. what should groups do to fight discrimination.

“In the current education system, the condition of education and its promotion of equality is very important. The education system should be a good place for each and every student. It must be on the basis of equal opportunities for each student in every country. It must be free of discrimination.”

Prateek starts his essay by telling the story of a student having difficulty getting admitted to a college because of high fees. He then poses the question of how the student will be able to get an education when he can’t have the opportunity to do so in the first place. He goes on to discuss UNESCO’s objectives against discrimination. 

Further in the essay, the author defines discrimination and cites instances when it happens. Prateek also compares past and present discrimination, ending the piece by saying it should stop and everyone deserves to be treated fairly.

“I thought that there is no discrimination before I actually had discrimination… I think we must treat everyone equally even though people speak different languages or have different colors of skin.”

In her short essay, Nakatani shares the experiences that made her feel discriminated against when she visited the US. She includes a fellow guest saying she and her mother can’t use the shared pool in a hotel they stay in because they are Japanese and getting cheated of her money when she bought from a small shop because she can’t speak English very well.

“Whether intentional or not, prejudice and discrimination ensure the continuance of inequality in the United States. Even subconsciously, we are furthering inequality through our actions and reactions to others… Because these forces are universally present in our daily lives, the way we use them or reject them will determine how they affect us.”

Anderson explains the direct relationship between prejudice and discrimination. He also gives examples of these occurrences in the past (blacks and whites segregation) and modern times (sexism, racism, etc.)

He delves into society’s fault for playing the “blame game” and choosing to ignore each other’s perspectives, leading to stereotypes. He also talks about affirmative action committees that serve to protect minorities.

“Something important to point out is that there is prejudice when it comes to people of lower class or economic standing, there are stereotypes that label them as untrustworthy, lazy, and even dangerous. This thought is fed by the just-world phenomenon, that of low economic status are uneducated, lazy, and are more likely to be substance abusers, and thus get what they deserve.”

Ibarra recounts how she discovered Pixar’s Luca and shares what she thought of the animation, focusing on how the film encapsulates socioeconomic discrimination in its settings. She then discusses the characters and their relationships with the protagonist. Finally, Ibarra notes how the movie alluded to flawed characters, such as having a smaller boat, mismatched or recycled kitchen furniture, and no shoes. 

The other cast even taunts Luca, saying he smells and gets his clothes from a dead person. These are typical things marginalized communities experience in real life. At the end of her essay, Ibarra points out how society is dogmatic against the lower class, thinking they are abusers. In Luca, the wealthy antagonist is shown to be violent and lazy.

“Even though the problem of discrimination has calmed down, it still happens… From these past experiences, we can realize that solutions to tough problems come in tough ways.”

The author introduces people who called out discrimination, such as Mahatma Gandhi, Dr. Martin Luther King Jr., and Barbara Henry – the only teacher who decided to teach Ruby Bridges, despite her skin color. 

He then moves on to mention the variations of present-day discrimination. He uses Donald Trump and the border he wants to build to keep the Hispanics out as an example. Finally, Bill ends the essay by telling the readers those who discriminate against others are bullies who want to get a reaction out of their victims. 

Do you get intimidated when you need to write an essay? Don’t be! If writing an essay makes you nervous, do it step by step. To start, write a simple 5 paragraph essay .

Prompts on Essays About Discrimination

Below are writing prompts that can inspire you on what to focus on when writing your discrimination essay:

Have you had to go through an aggressor who disliked you because you’re you? Write an essay about this incident, how it happened, what you felt during the episode, and what you did afterward. You can also include how it affected the way you interact with people. For example, did you try to tone down a part of yourself or change how you speak to avoid conflict?

List ways on how you can participate in lessening incidents of discrimination. Your list can include calling out biases, reporting to proper authorities, or spreading awareness of what discrimination is.

Is there an ongoing prejudice you observe in your school, subdivision, etc.? If other people in your community go through this unjust treatment, you can interview them and incorporate their thoughts on the matter.

Tackle what victims of discrimination have to go through daily. You can also talk about how it affected their life in the long run, such as having low self-esteem that limited their potential and opportunities and being frightened of getting involved with other individuals who may be bigots.

For this prompt, you can choose a subtopic to zero in on, like Workplace Discrimination, Disability Discrimination, and others. Then, add sample situations to demonstrate the unfairness better.

What are your thoughts on the different game rules for men and women? Do you believe these rules are just? Cite news incidents to make your essay more credible. For example, you can mention the incident where the Norwegian women’s beach handball team got fined for wearing tops and shorts instead of bikinis.

Since we learn to discriminate because of the society we grew up in, it’s only normal to be biased unintentionally. When you catch yourself having these partialities, what do you do? How do you train yourself not to discriminate against others?

Focus on an area of discrimination and suggest methods to lessen its instances. To give you an idea, you can concentrate on Workplace Discrimination, starting from its hiring process. You can propose that applicants are chosen based on their skills, so the company can implement a hiring procedure where applicants should go through written tests first before personal interviews.

If you instead want to focus on topics that include people from all walks of life, talk about diversity. Here’s an excellent guide on how to write an essay about diversity .

Maria Caballero is a freelance writer who has been writing since high school. She believes that to be a writer doesn't only refer to excellent syntax and semantics but also knowing how to weave words together to communicate to any reader effectively.

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Essays and Commentary

Reflections and analysis inspired by the killing of George Floyd and the nationwide wave of protests that followed.

My Mother’s Dreams for Her Son, and All Black Children

She longed for black people in America not to be forever refugees—confined by borders that they did not create and by a penal system that killed them before they died.

By Hilton Als

June 21, 2020

How do we change america.

The quest to transform this country cannot be limited to challenging its brutal police alone.

By Keeanga-Yamahtta Taylor

June 8, 2020

The purpose of a house.

For my daughters, the pandemic was a relief from race-related stress at school. Then George Floyd was killed.

By Emily Bernard

June 25, 2020

The players’ revolt against racism, inequality, and police terror.

A group of athletes across various American professional sports have communicated the fear, frustration, and anger of most of Black America.

September 9, 2020, until black women are free, none of us will be free.

Barbara Smith and the Black feminist visionaries of the Combahee River Collective.

July 20, 2020, john lewis’s legacy and america’s redemption.

The civil-rights leader, who died Friday, acknowledged the darkest chapters of the country’s history, yet insisted that change was always possible.

By David Remnick

July 18, 2020

Europe in 1989, america in 2020, and the death of the lost cause.

A whole vision of history seems to be leaving the stage.

By David W. Blight

July 1, 2020

The messy politics of black voices—and “black voice”—in american animation.

Cartoons have often been considered exempt from the country’s prejudices. In fact, they form a genre built on the marble and mud of racial signification.

By Lauren Michele Jackson

June 30, 2020

After george floyd and juneteenth.

What’s ahead for the movement, the election, and the protesters?

June 20, 2020, juneteenth and the meaning of freedom.

Emancipation is a marker of progress for white Americans, not black ones.

By Jelani Cobb

June 19, 2020

A memory of solidarity day, on juneteenth, 1968.

The public outpouring over racism that has been taking place in America since George Floyd’s murder feels like a long-postponed renewal of the reckoning that shook the nation more than half a century ago.

By Jon Lee Anderson

June 18, 2020

Seeing police brutality then and now.

We still haven’t fully recognized the art made by twentieth-century black artists.

By Nell Painter

The History of the “Riot” Report

How government commissions became alibis for inaction.

By Jill Lepore

June 15, 2020

The trayvon generation.

For Solo, Simon, Robel, Maurice, Cameron, and Sekou.

By Elizabeth Alexander

So Brutal a Death

Nationwide outrage over George Floyd’s brutal killing by police officers resonates with immigrants, and with people around the world.

By Edwidge Danticat

An American Spring of Reckoning

In death, George Floyd’s name has become a metaphor for the stacked inequities of the society that produced them.

June 14, 2020, the mimetic power of d.c.’s black lives matter mural.

The pavement itself has become part of the protest.

By Kyle Chayka

June 9, 2020

Donald trump’s fascist performance.

To the President, power sounds like gunfire and helicopters; it sounds like the silence of men in uniform when they are asked who they are.

By Masha Gessen

June 3, 2020

• Books & Culture
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• Equality and Non-discrimination

Non-discrimination and equality are core elements of the international human rights normative framework. Article 2 of the Universal Declaration of Human Rights (UDHR) states that every human being is entitled to all rights and freedoms “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Similarly, the International Covenant on Civil and Political rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) require the respective States parties to guarantee the enjoyment of all rights without discrimination of any kind. Both also have specific provisions for the “equal right” of men and women in the enjoyment of all rights. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Articles 11e and 14) , the International Convention on All Forms of Racial Discrimination (CERD, Article 5) and the Convention on the Rights of Persons with Disabilities (CRPD, Article 28) likewise enshrine a prohibition of discrimination in the enjoyment of the rights set out in each Convention, including the right to social security.  The right to equality and non-discrimination with respect to social protection has been underlined by ILO social security standards. While the focus of older instruments was on migrants and ensuring equality of treatment through the impetus of bilateral agreements (ILO Conventions No. 118 and 157 ), Recommendation No. 202 (para 3d) highlights the need to streamline the principle of non-discrimination throughout the life cycle, taking account while being responsive to special needs who may experience structural discrimination, when implementing comprehensive social protection systems.

Under international human rights law, States are expected to eliminate direct and indirect discrimination in law and practice; on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, and civil, political, social or other status; when it has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to social security. It also requires states to take special measures to protect the most vulnerable segments of the population as a matter of priority ( Committee on Economic, Social and Cultural Rights, General Comment 19, paras 29-30 ). States parties have the obligation to pay special attention to those individuals and groups who traditionally face difficulties in exercising this right (General Comment 19, para 31) throughout the processes of design, implementation and evaluation. The principles of equality and non-discrimination must be respected in all stages of a social protection programme, from the selection of the beneficiaries to the delivery system chosen. Giving priority to the most disadvantaged sector of society makes it critical to gather disaggregated data to be able to identify them.

Selection of beneficiaries

As stated previously ( see universality of protection ), States must ensure the right to social security, including social insurance, for all without discrimination of any kind. Article 2.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the Convention on the Rights of the Child (CRC) oblige States Parties to take effective measures, within their maximum available resources, to fully realize this right. From a human rights perspective, social protection programmes should also be child-sensitive in their design, implementation and evaluation. The CRC (the Preamble, Articles 2 and 23 in particular) emphasizes that the best interests of children should be respected at all times, and their special needs should be accommodated. A child-sensitive social protection programme is one which ensures the rights of the child, and takes into account all the factors that might place children in a vulnerable position (see also the joint publication Advancing Child-Sensitive Social Protection). Programmes are required to factor in age- and gender-specific risks and vulnerabilities at each stage of the life course, especially considering the needs of families with children. Special provisions should be made for children without parental care and those who are marginalized within their families due to gender, disability, ethnicity, HIV/AIDS status or other markers of identity. To achieve these ends, it is necessary that intra-household dynamics be carefully considered, including the balance of power between men and women. A child-sensitive programme must also include the voices and opinions of children and youth, and their caregivers in design and implementation processes.

Substantive equality

Social protection programmes must work towards substantive equality, a concept which has been promoted in key human rights treaties to illustrate and address the fact that inequality can be structural and discrimination indirect, that equality has to be understood in relation to outcomes as well as opportunities, and that universal protection does not necessarily mean uniform measures. ‘Different’ treatment may be required to achieve equality in practice ( UN Women’s Progress of the World’s Women, 2015-2016 ).

Substantive equality differs from formal equality in that the latter refers to the adoption of laws and policies that treat everyone equally, while substantive equality is concerned with the results and outcomes of these laws, policies and practices, in particular ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that particular groups experience.

Policy makers must take into consideration the needs of different groups, and works towards rectifying the effects of past discrimination, social norms and power dynamics that contribute to inequality.

All social security policies and programmes must respect, protect and fulfil the rights of marginalized and disadvantages groups, ensuring non-discrimination and equality.

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Expert Commentaries

The principle of social protection may be to meet universal needs. However, social protection is defined, organized and provided in specific contexts. The right to social protection is defined by social norms, economic choices and political contestation. This generates contradictions between universal human rights and particularist rights to social protection. These contradictions make it especially […]

Worldwide, the prevalence of disability tends to be higher within indigenous communities than among non-indigenous groups.1 This high prevalence of disability is both a cause and a consequence of severe poverty, violence and unsafe living conditions, including exposure to environmental degradation, toxic waste and the adverse impacts of development project.2 Indigenous persons with disabilities are […]

  Generally, under human rights instruments, rights are granted to ‘everyone’ without discrimination of any kind. Thus, minorities (national or ethnic, religious and linguistic minorities) should enjoy all rights including the right to social security on the same footing as the majority of the population. The protection of the rights of minorities is provided for under article 27 […]

Legal Instruments

This law prohibits discrimination in the labour market. Link to law

The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations. It sets out the different ways in which it’s unlawful to treat someone. Link to Act

This policy, based on principles of human rights, aims to guide the national response to HIV/AIDS in reducing and managing the impact of the epidemic in the world of work. Specifically the policy aims to: Prevent transmission of HIV infection amongst workers and their families; Protect rights of those who are infected and provide access […]

The purpose of this Policy & Strategy document is to outline policy statements of the Ministry of Health in support of Reproductive Health including maternal and neonatal health, demonstrating its contribution to the achievement of improved health and wellbeing in Fiji. It maps out a framework of key strategic areas and activities to be implemented […]

This act recognizes the gender of a person and regulates the effects of such a change, as well as the recognition and protection of the sex characteristics of a person.

This Act prohibits discrimination in employment, training, recruitment and membership in professional bodies, and promotes equal pay between men and women who perform work of equal value.  

This Act provides regulations relating to workers’ wages, leave, and general matters pertaining to workers’ welfare.

Prohíbe demandar un examen de embarazo previo a contrato.

Protege a las personas con discapacidad; establece un sistema de prevención de discapacidades, atención e integración de personas con discapacidad que garantice su desarrollo y evite que sufran toda clase de discriminación, incluida la de género. Establece la creación y funcionamiento del Consejo Nacional de Discapacidades (CONADIS).

La Ley tiene como objetivos, servir como instrumento a las personas con discapacidad para que alcancen su máximo desarrollo, su plena participación social, así como el ejercicio de los derechos y deberes establecidos en nuestro sistema jurídico; garantizar la igualdad de oportunidades para la población en todo ámbito; eliminar cualquier tipo de discriminación hacia estas […]

Legal Cases

Participatory implementation of D.H. case promotes inclusion of Roma children in Czech schools In this case, applicants challenged the disproportionate classification of Roma school children in the Czech Republic as having special education needs as well as their segregation into schools for children with “Light Mental Disabilities”. The European Court of Human Rights (ECtHR) decided […]

This case focused on whether school funding by the State of Kansas was equitable and adequate, as required under the relevant state constitutional provisions regulating the provision of education. Upon finding violations in connection with the equitable distribution of funds and the adequacy of such funds to ensure constitutionally required education, the State of Kansas […]

Summary:  In February 2016, a Romani woman gave birth a public hospital in Miskolc, north-eastern Hungary. During labour she cried out with pain and the midwife yelled at her “if you shout once more I will push the pillow into your face”. When the woman apologised, the doctor said to her “if you had shouted […]

 Summary:  In January 2012, up to 53 women underwent a sterilization procedure in Bihar, India, at a sterilization camp managed by an NGO which had been granted accreditation by the District Health Society, apparently without following any formal, transparent process. The women had not been given any counseling regarding the potential dangers and outcomes of […]

Nature of the Case Delayed textbook delivery has plagued public schools in Limpopo, South Africa’s northernmost province for several years. The Department of Basic Education and Limpopo Department of Education appealed a high court decision holding that their failure to ensure timely delivery of textbooks to learners in Limpopo public schools violated the learners’ constitutional […]

The decision originated in separate employer decisions to discharge from the Mexican Army two HIV-positive servicemen who had tested for the virus in standard army-run medical examinations. In the first case, J.S.C.H. had been in the army as a driver for 19 years. The second case involved M.G.S., an infantry corporal with twelve years’ service. […]

Nature of the Case This case came before the Supreme Court on appeal, and constitutes a challenge to one aspect of the Affordable Care Act, specifically regarding whether subsidies can be provided to low-income people buying health insurance through federal exchanges. These subsidies are vital in enabling people to access affordable health care coverage. Summary […]

Summary: The communication was filed by the mother of a woman with a mental impairment amounting to a legal age of a child, concerning the response of public health and judicial institutions to her pregnancy resulting from rape.  After being refused by one hospital, a second hospital scheduled an abortion but was later blocked by […]

The Court was requested to examine whether Article 109 para. 1 of the Law of Azerbaijan Republic On Pension Maintenance of Citizens, allowing an 80 per cent reduction of pensions for entitled persons who are incarcerated, was inconsistent with the right to social protection, contained in Article 38 of the Constitution of Azerbaijan. According to […]

The Federal Court reviewed the effects of changes to the Interim Federal Health Program (IFHP) in relation to sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms, pertaining to the right to life, liberty and the security of the person, the prohibition of cruel and unusual punishment and equal of treatment […]

This joint statement reflects our shared commitment to inclusive social protection systems for persons with disabilities. The statement emerged from meetings and discussions between international partners working on the issues of disability and social protection. These meetings also contributed to the first report of the United Nations (UN) Special Rapporteur on the Rights of Persons […]

The ILO’s General Survey 2019 , compiled by the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR). The Survey (published under the title Universal social protection for human dignity, social justice and sustainable development) focuses on the ILO’s Social Protection Floors Recommendation, 2012 (No. 202), which calls for basic income security and essential healthcare […]

Tracking older adults in the Health and Retirement Study from 1992 to 2016, we find that about one-half of full-time, full-year workers ages 51 to 54 experience an employer-related involuntary job separation after age 50 that substantially reduces earnings for years or leads to long-term unemployment. The steady earnings that many people count on in […]

Men, women and children from indigenous peoples are estimated to represent 4.5 per cent of the world’s population. They constitute more than 5,000 different groups with distinct cultures, forms of social organization, livelihood strategies, practices, notions of poverty and wellbeing, values, and beliefs profoundly embedded in their collective relationship with the lands and territories that they […]

Social protection is an essential condition for social and economic development for all, but particularly for those who experience poverty and social exclusion. Social protection programmes can play a crucial role in alleviating and preventing poverty and vulnerability to secure people’s well-being. They can also enhance the productivity, employability and economic development of people by […]

Recent years have witnessed the significant expansion of social protection programmes around the world. Yet, a vast number of poor and vulnerable people, including children, women, ethnic minorities, and persons with disabilities, remain uncovered, especially in lower-income countries. This article argues that a better understanding of the principle of equality and non-discrimination, as defined under […]

Persons with disabilities in the Arab region, as elsewhere in the world, are one of the most marginalized and excluded population groups. They are often not visible in public life, as the social and physical environments remain inaccessible, and they are disproportionally affected by crises and disasters. Reporting on the ongoing violent conflicts across the […]

This brief outlines transgender and gender non-conforming persons’ right to adequate sanitation facilities in public spaces.

This brief outlines transgender and gender-noncomforming person’s rights at work.

ILO, in collaboration with Gallup, surveyed men and women in 2016 to understand their perceptions about women and work. The results, based on interviews with nearly 149,000 adults in 142 countries and territories, suggest that women might find support in their quest for productive employment and decent work coming from a rather unexpected source: men. […]

• Introduction to the right to social security
• Key aspects of the right to social security
• ILO social security standards
• Introduction to a rights-based approach
• Universality of Protection
• Dignity and Autonomy
• Inclusion of Vulnerable Groups
• Gender Perspective
• Ensure Transparency and Access to Information
• Ensure Meaningful and Effective Participation
• Access to Accountability Mechanisms and Effective Remedies
• Respect of Privacy
• Comprehensive, Coherent and Coordinated Policies
• Adequate legal and institutional framework and long-term social protection strategies
• Standards of Accessibility, Adaptability and Acceptability
• Adequacy of Benefits

14 influential essays from Black writers on America's problems with race

• Business leaders are calling for people to reflect on civil rights this Martin Luther King Jr. Day.
• Black literary experts shared their top nonfiction essay and article picks on race. 
• The list includes "A Report from Occupied Territory" by James Baldwin.

For many, Martin Luther King Jr. Day is a time of reflection on the life of one of the nation's most prominent civil rights leaders. It's also an important time for people who support racial justice to educate themselves on the experiences of Black people in America. 

Business leaders like TIAA CEO Thasunda Duckett Brown and others are encouraging people to reflect on King's life's work, and one way to do that is to read his essays and the work of others dedicated to the same mission he had: racial equity. 

Insider asked Black literary and historical experts to share their favorite works of journalism on race by Black authors. Here are the top pieces they recommended everyone read to better understand the quest for Black liberation in America:

An earlier version of this article was published on June 14, 2020.

"Southern Horrors: Lynch Law in All Its Phases" and "The Red Record: Tabulated Statistics and Alleged Causes of Lynching in the United States" by Ida B. Wells

In 1892, investigative journalist, activist, and NAACP founding member Ida B. Wells began to publish her research on lynching in a pamphlet titled "Southern Horrors: Lynch Law in All Its Phases." Three years later, she followed up with more research and detail in "The Red Record." 

Shirley Moody-Turner, associate Professor of English and African American Studies at Penn State University recommended everyone read these two texts, saying they hold "many parallels to our own moment."  

"In these two pamphlets, Wells exposes the pervasive use of lynching and white mob violence against African American men and women. She discredits the myths used by white mobs to justify the killing of African Americans and exposes Northern and international audiences to the growing racial violence and terror perpetrated against Black people in the South in the years following the Civil War," Moody-Turner told Business Insider. 

Read  "Southern Horrors" here and "The Red Record" here >>

"On Juneteenth" by Annette Gordon-Reed

In this collection of essays, Pulitzer Prize-winning author Annette Gordon-Reed combines memoir and history to help readers understand the complexities out of which Juneteenth was born. She also argues how racial and ethnic hierarchies remain in society today, said Moody-Turner. 

"Gordon-Reed invites readers to see Juneteenth as a time to grapple with the complexities of race and enslavement in the US, to re-think our origin stories about race and slavery's central role in the formation of both Texas and the US, and to consider how, as Gordon-Reed so eloquently puts it, 'echoes of the past remain, leaving their traces in the people and events of the present and future.'"

Purchase "On Juneteenth" here>>

"The Case for Reparations" by Ta-Nehisi Coates

Ta-Nehisi Coates, best-selling author and national correspondent for The Atlantic, made waves when he published his 2014 article "The Case for Reparations," in which he called for "collective introspection" on reparations for Black Americans subjected to centuries of racism and violence. 

"In his now famed essay for The Atlantic, journalist, author, and essayist, Ta-Nehisi Coates traces how slavery, segregation, and discriminatory racial policies underpin ongoing and systemic economic and racial disparities," Moody-Turner said. 

"Coates provides deep historical context punctuated by individual and collective stories that compel us to reconsider the case for reparations," she added.  

Read it here>>

"The Idea of America" by Nikole Hannah-Jones and the "1619 Project" by The New York Times

In "The Idea of America," Pulitzer Prize-winning investigative journalist Nikole Hannah-Jones traces America's history from 1619 onward, the year slavery began in the US. She explores how the history of slavery is inseparable from the rise of America's democracy in her essay that's part of The New York Times' larger "1619 Project," which is the outlet's ongoing project created in 2019 to re-examine the impact of slavery in the US. 

"In her unflinching look at the legacy of slavery and the underside of American democracy and capitalism, Hannah-Jones asks, 'what if America understood, finally, in this 400th year, that we [Black Americans] have never been the problem but the solution,'" said Moody-Turner, who recommended readers read the whole "1619 Project" as well. 

Read "The Idea of America" here and the rest of the "1619 Project here>>

"Many Thousands Gone" by James Baldwin

In "Many Thousands Gone," James Arthur Baldwin, American novelist, playwright, essayist, poet, and activist lays out how white America is not ready to fully recognize Black people as people. It's a must read, according to Jimmy Worthy II, assistant professor of English at The University of Massachusetts, Amherst.

"Baldwin's essay reminds us that in America, the very idea of Black persons conjures an amalgamation of specters, fears, threats, anxieties, guilts, and memories that must be extinguished as part of the labor to forget histories deemed too uncomfortable to remember," Worthy said.

"Letter from a Birmingham Jail" by Martin Luther King Jr.

On April 13 1963, Martin Luther King Jr. and other Civil Rights activists were arrested after peaceful protest in Birmingham, Alabama. In jail, King penned an open letter about how people have a moral obligation to break unjust laws rather than waiting patiently for legal change. In his essay, he expresses criticism and disappointment in white moderates and white churches, something that's not often focused on in history textbooks, Worthy said.

"King revises the perception of white racists devoted to a vehement status quo to include white moderates whose theories of inevitable racial equality and silence pertaining to racial injustice prolong discriminatory practices," Worthy said. 

"The Transformation of Silence into Language and Action" by Audre Lorde

Audre Lorde, African American writer, feminist, womanist, librarian, and civil rights activist asks readers to not be silent on important issues. This short, rousing read is crucial for everyone according to Thomonique Moore, a 2016 graduate of Howard University, founder of Books&Shit book club, and an incoming Masters' candidate at Columbia University's Teacher's College. 

"In this essay, Lorde explains to readers the importance of overcoming our fears and speaking out about the injustices that are plaguing us and the people around us. She challenges us to not live our lives in silence, or we risk never changing the things around us," Moore said.  Read it here>>

"The First White President" by Ta-Nehisi Coates

This essay from the award-winning journalist's book " We Were Eight Years in Power ," details how Trump, during his presidency, employed the notion of whiteness and white supremacy to pick apart the legacy of the nation's first Black president, Barack Obama.

Moore said it was crucial reading to understand the current political environment we're in. 

"Just Walk on By" by Brent Staples

In this essay, Brent Staples, author and Pulitzer Prize-winning editorial writer for The New York Times, hones in on the experience of racism against Black people in public spaces, especially on the role of white women in contributing to the view that Black men are threatening figures.  

For Crystal M. Fleming, associate professor of sociology and Africana Studies at SUNY Stony Brook, his essay is especially relevant right now. 

"We see the relevance of his critique in the recent incident in New York City, wherein a white woman named Amy Cooper infamously called the police and lied, claiming that a Black man — Christian Cooper — threatened her life in Central Park. Although the experience that Staples describes took place decades ago, the social dynamics have largely remained the same," Fleming told Insider. 

"I Was Pregnant and in Crisis. All the Doctors and Nurses Saw Was an Incompetent Black Woman" by Tressie McMillan Cottom

Tressie McMillan Cottom is an author, associate professor of sociology at Virginia Commonwealth University and a faculty affiliate at Harvard University's Berkman Klein Center for Internet and Society. In this essay, Cottom shares her gut-wrenching experience of racism within the healthcare system. 

Fleming called this piece an "excellent primer on intersectionality" between racism and sexism, calling Cottom one of the most influential sociologists and writers in the US today.  Read it here>>

"A Report from Occupied Territory" by James Baldwin

Baldwin's "A Report from Occupied Territory" was originally published in The Nation in 1966. It takes a hard look at violence against Black people in the US, specifically police brutality. 

"Baldwin's work remains essential to understanding the depth and breadth of anti-black racism in our society. This essay — which touches on issues of racialized violence, policing and the role of the law in reproducing inequality — is an absolute must-read for anyone who wants to understand just how much has not changed with regard to police violence and anti-Black racism in our country," Fleming told Insider.  Read it here>>

"I'm From Philly. 30 Years Later, I'm Still Trying To Make Sense Of The MOVE Bombing" by Gene Demby

On May 13, 1985, a police helicopter dropped a bomb on the MOVE compound in Philadelphia, which housed members of the MOVE, a black liberation group founded in 1972 in Philadelphia, Pennsylvania. Eleven people, including five children, died in the airstrike. In this essay, Gene Demby, co-host and correspondent for NPR's Code Switch team, tries to wrap his head around the shocking instance of police violence against Black people. 

"I would argue that the fact that police were authorized to literally bomb Black citizens in their own homes, in their own country, is directly relevant to current conversations about militarized police and the growing movement to defund and abolish policing," Fleming said.  Read it here>>

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Essay on the Core Principles of Equality and Non-Discrimination in International Human Rights Law

Introduction

The core principles of equality and non-discrimination are neither absolute nor neutral because human rights are violated by people globally. Human rights are not respected because some people see themselves as superior and feel that they are above the law. The rise in inequality and discrimination across the world is a trend and has affected a large number of people in many nations from the humblest to the greatest wealthy groups. Equality and non-discrimination are precisely intrinsic in the impression of unity in self-respect and value of human beings in that not all variances in the lawful treatment are biased because all treatments legally are violent to human self-respect. There occur some differences that may give growth in lawful conduct and do not disrupt the values of fairness. They can be useful in achieving justice and also for protecting those who feel illegally discriminated against.

Human Rights

The values of human rights were drawn by humans as a way of making sure that the self-respect of everyone is correspondingly appreciated. Self-respect gives a person a sense of self-worth. The existence of human rights shows that human beings are conscious of each other’s self-worth. Human self-respect is part of common humanity. A person’s understanding of human rights affects one’s views on them. A spiritual perspective of human rights is extra striking if such rights are considered equal to all human species rather than just those of its affiliates who have respected assets.

All human rights are owned by every single human being.  [1] The international human rights system initiated the impression that people have a similar set of equal human rights. The right to equality requires all countries and states to treat people differently so that they can overcome the ancient outlines of disadvantaging people and attain fairness amongst them. The word equality defines the oneness of the human family. The fact that all human beings are equivalent also warrant to be given equal treatment has a prevailing positive petition. The principle of equality and non-discrimination has added a very significant rank in international law. It is now encompassed in the crucial human rights devices in different states. Human rights are general and absolute; co-dependent and interconnected and undividable. [2]  Human rights are universal because all individuals are entitled to them. They are indivisible because all human rights have equivalent status and cannot be placed in a ranked order. They are interdependent and interrelated because each one subsidizes the realization of a being’s dignity.

Important assessments of human rights have grasped a climax. Despite being significant in modern times, human rights face privileges of being irrelevant and guesses of fading away. Social science faces an acquainted repeat of analysis. The analysis has also catalyzed a counter-analysis. A theory suggests that the turn to human rights has been successful more than imagined.

Equality assures us that every human being is born unrestricted and equal. Equality supposes that all individuals have and deserve a similar level of respect, all people deserve the same kind of respect. All laws, programs and, policies should not discriminate against anyone and, that the public authorities must not impose rules, programs and, policies in a prejudiced way. At times it is essential to treat individuals in different ways to attain equality. This is because the difference amongst individuals may make it hard for them to enjoy their rights without sustenance from other people. Official fairness happens when rules and strategies demand different individuals to be treated the same way in that they should not be victimized. Equality of opportunity occurs when people may face limitations that may occur outside their control, such as race, gender, social status and, disability. Substantive equality pursues to guarantee equality of outcomes and equality of opportunity. It sees each person as equally entitled to fully enjoy equal rights irrespective of their capacity to contribute to society. Equal and inalienable is a general principle for all human beings. There exist two kinds of equality, substantive equality and formal equality. Formal equality shows that the laws and the government classify people differently and are treated differently too. Substantive equality defines the equality of opportunity and the equality of results.

Non-discrimination

Non-discrimination is a very important part of the principles of equality. It ensures that no single person is discriminated against and everybody is allowed all the rights and freedoms established without dissimilarity of any type based on race, gender, colour, religion, language, political, or any other factors. [3]  Discrimination on other grounds is also forbidden. These grounds include nationality, age, marital status, sexual orientation, disability, and home of residence in a state. One of the puzzling features of non-discrimination is that does not forbid nations from treating people contrarily. This is because the values of equality and non-discrimination inter-relate.

The right to equality and non-discrimination consists of both positive and negative responsibilities. The duty to avoid discriminating fairness and the responsibility of protecting the accomplishment and satisfaction of the rights to equality and non-discrimination for everyone. There exists fairness before the law and equal fortification of the law. The principles of equality and non-discrimination interrelate with each other and are indivisible, interrelated, and interdependent with other human rights. For people to apply the principle of equality in different nations, the relevant criteria in respect of which people should be arbitrated to be similar or unlike should be well defined. The kind of equality we need to achieve should be defined, whether people must be given equal chances or if they should be located in the equivalent position.

Forms of Discrimination

Sex or gender judgment occurs in various methods, either in regulation or in exercise in nearly all nations. Violence against women is the most common form of gender discrimination. It includes sexual pestering and battering of girls and women. Other methods of discrimination against women are early child marriage and female genital mutilation which continues despite laws barring them against performing these practices. Criminal law in many states is partial against girls and women in the method rape is defined and prosecuted. In some countries, private rank laws governing marriage, child custody, separation, divorce, and inheritance do discriminate against women. Women in many counties face discrimination based on their dress codes. Also, gender discrimination in employment is found in almost every nation to some level. [4]  The gender pay gap persists in most countries and women are subjected to low payment in their places of work. Women also face personal security in what money can buy, access to services, and benefits.

Discrimination based on race, ethnic groups, and skin colour are rampant all over the world and people suffer from all forms of exclusion and discrimination. People from the African continent are discriminated against based on skin colour and are not subjected to equal rights as those with white skin color. They are exploited and treated unfairly in some countries. They face all kinds of suffering which should not be the case because all humans are the same and equal rights are guaranteed to them. It, therefore, strengthens the relationship and friendship among people and different states globally.

Discrimination based on the origin of political views is often experienced by people from the opposition and this kind of discrimination takes different kinds of forms, from political torture and ill-treatment of the employers or on campuses by expelling them. [5]  Millions of individuals across the globe are fatalities of discrimination based on socioeconomic position and secondary discrimination is pertinent in this situation. For example, the provision of public health care funds in some way places the subordinate communities so that they are not granted access to proper healthcare and the rich are given great advantages due to their social status.

Nationality and revocation status are also other forms of discrimination. In some countries, refugee internal workers are not protected by the laws of labor and are subjected to limiting migration instructions. The visa sponsorship scheme subjects workers to their employers and places the workers in danger of mistreatment which should not be the case. In some states, there is differential treatment of unmarried persons based on family status. It is an offense when consensual sex between unmarried persons happens. Age-based discrimination occurs such as abuse of the elderly, rejection of access to information, age limitations in admissions to learning institutions, unemployment of older workers, and forced withdrawal due to peoples’ age.

Discrimination based on disability affects most of the world’s population. People with disabilities do not enjoy equality as other people do. Methods of disability discrimination include rejection of realistic space in the employment sector, renunciation of contact to buildings, means of transport, isolation of children with disabilities in schools, and unnecessary limitations in lawful dimensions. People with disabilities face a lot of obstacles in terms of political participation and are stripped of their voting rights.  [6] They are viewed by society as a burden since people assume that they can only depend on other people to obtain something and that they cannot enjoy equal rights as other people. Persons with mental disabilities are the most susceptible human beings in the world now. They stay in closed institutions, from mental hospitals to prisons and police detention cells which give them more torture. This is not the case as people with disabilities have a lot of abilities and they do help a lot in the socio-economic growth of a country. Most of these people have talents and skills that can be of advantage for the development of a country or even an organization, therefore they should never be looked down upon.

Discrimination on sexual alignment and gender uniqueness is rampant. At now, most of the countries continue to criminalize similar sexual relationships amongst adults. The LGBT communities across the world face increased discrimination and persecution. Some laws in different countries ban any effort in backing LGBT equality and demonize LGBT individuals and protestors. In most of the states there exists violence and entrenchment of the LGBT people and they enjoy impunity. Transgender people face subjective arrest, sexual and physical battering, custody, prejudiced renunciation of healthcare and jobs, and many other cases of abuse.

Discrimination based on language often occurs in terms of state-building schemes in recently independent countries. Language differences in service and employment are vindicated by the nature of the job and the eloquence of a particular language. They are seen as essential job requirements. Language should not be seen as a barrier to the development of a company, organization, or state. Everyone is entitled to be employed anywhere and the kind of language they should know does not have to be an essential requirement when seeking employment. People should use their language freely and at all places without any form of discrimination. This shows that there is equality in the job sector and every single person enjoys this right.

Religion is another basis of discrimination that takes place in many regions across the world today. In Europe, anti-Semitism and Islamophobia are becoming tougher day by day. In Iraq, exploitations by Shia militias of Sunnis have reared the growth and spread of Daesh. In the.

Middle East, sectarian divisions drive viciousness and war. In dominant Muslim states, Christian Minorities face discrimination. As the cultural smaller members often have a religion that is dissimilar from that of the majority, the discrimination forms experience a lot of cases of ethnoreligious discrimination. In the employment sector, direct discrimination occurs, whereby the employer treats someone less favourably than other employees because of their religion. [7]  Employers take unfair actions against an employee on the grounds of religion. Employees are bullied and treated unfairly at their places of work when they complain or raise a grievance.

Total poverty experienced by those whose pay is hardly enough for their existence remains extensive all over the world. Indigence levels have equally risen over time. Extreme poverty and suffering have affected a big portion of humankind and the hard work by the states and other organizations to eliminate it has been rendered futile. Extreme poverty shows that there exist injustices. [8]  It shows that there is a violation of elementary human rights. Political judgments from the submission of political ideas show that the dissimilarities in revenue and living situations in and between nations are not well-defined as just or unjust.

How to achieve equality and non-discrimination

However, the equality and non-discrimination of human rights have improved drastically. People have achieved freedom from authoritative states. Larger equality and non-discrimination of human rights are shown in definite clusters such as the native people and disabled people. The fairness gap remains broader for refugees and refugee workers. There is an increasing worldwide consciousness of their dilemma. The subject of fairness of chances has complicated the exertions to limit whether the basis of social justice has been lost or gained. Apart from the unemployment issue, society has not offered people chances to participate in fruitful actions of their choice as they wish. This is called monetary justice as it signifies justice and fairness in the broader logic. The opening up of the global economy has given countries more opportunities to grow. Few oppose that economic liberty signifies a rudimentary human right.

Social justice is not possible without strong strategies that are executed by public works. The well-being of citizens of a country requires very maintainable economic growth, economic justice, and establishment of employment chances, and the development of individuals as human beings. All of these should be executed equally without any favour, and a corrupt-free government can easily execute this without favouritism. Certain human rights myths are believed by people in a society. Some say that human rights are for the upright citizens. But everybody is permitted to all the rights and freedoms declared in a state. These myths do discriminate against a lot of people and should be discouraged by all citizens at all costs.

Following the government prohibiting discrimination based on race, language, sex, and religion, the approval of the universal pronouncement of human rights and punishment of the wrongdoing of massacre is a significant step in the lawful alliance of equality before the law and the ban of discrimination. Every person has the entitlement to all the human rights that are established in this announcement. No difference should be made based on the political and jurisdictional position of a nation that an individual belongs to.

Minorities across the world should be protected against discrimination. This makes an essential portion of the intercontinental defence of human rights and it falls inside the choice of worldwide cooperation. Their rights and freedoms should also be protected. [9]  A democratic society should create good conditions enabling the subgroups to express, preserve, and grow their identities without any kind of discrimination. Concrete positive measures are required for national minorities.

European Court had to grow further its understanding of discrimination. States treat different persons differently without providing a reasonable justification for doing so. The European Court of Human rights has recognized that the countries appreciate particular gratitude in evaluating if there are differences and to what range they are in alike circumstances and their justifications of different treatment.

Some comprehensive and commanding lawful verdicts that define equality of treatment and non-discrimination in international human rights law. Full attention has been given to the judicial nature. Many individuals in the society suffer greater discrimination than some of those who were noticed by the international monitoring associations. The case law plainly defines the solutions to be undertaken under more serious circumstances because it establishes general legal steps that guide lawmakers and legal professions in drafting laws and enforcement of the right to equality and non-discrimination.

People in different states should be guaranteed freedom of movement and residence without discrimination based on race, color, national, or ethnicity. Measures or any actions that restrict freedom of movement and residence should be done away with. [10]  The United States committee statement based on racial discrimination noted that police brutality including cases of death as a result of force by police affects the minority groups and the foreigners. The police force should be trained and warned against racial discrimination as they would face the law. There should be equal treatment in all state tribunals and all organs that administer justice. Due to racial discrimination, the level of unemployment is high among foreigners and difficulty accessing employment by members of the ethnic minorities. Foreigners should have access to work permits and it has to guarantee that the foreigners who have acquired their work permits are not discriminated against in terms of access to employment.

In the representation of the matrimonial property, both parties should be entitled to representing property and owning it. The case of gender inequality should not be there because they both have equal rights of ownership of possession. In most countries, women are viewed as inferior and men as superior. They are denied access to a lot of the necessary amenities. Both men and women should enjoy all civil and political rights. Equality should be enjoyed by both genders and there should be no discrimination based on sex.

The right to family life should also be well respected. The choice of married couples in their matrimonial states should be respected and receive the non-citizen partners for settling in the nation. Certain provisions have been violated due to the variances of treatment in safeguarding the right to respect family life based on sex and race. A difference in treatment is discriminatory by law and if it has no objective of a sensible relationship then it should be well looked at so that there is fair treatment. It was easier for a man to easily settle in a different nation than for women. The government of the United Kingdom argued that the variance in treatment was a result of limiting primary immigration and it was vindicated by the need of the state to guard the local labor market when a high unemployment rate arises and it was considered legitimate and a wise decision by the state.

Following the death of a spouse, equal treatment should be given to the widows since they would have their retirement pension irrespective of their income, on the other hand, widowers could obtain a pension if only they did not have any other source of revenue. [11]  The widowers mainly face discrimination since they are not allowed the entitlement of owning property left by the husband. This is a kind of gender-based violence that is not right because gender differences should not be entertained in society. They are also humans.

The American States is obligated to respect international human rights law. All the organs of the state should strictly respect the rights of the citizens and exercise human rights by law. It is unacceptable for human rights to be violated and respect of human rights helps to attain the migratory policy objects that are contained in the law. The American State can restrict the enjoyment of some rights when ordered by the court of law.

In all the states, international human rights law contains a wider variety of rules and norms governing workers’ rights. The labor rights given by the ministry are contained in the law. Other states determine the scope of the regional human rights rules concerning every individual worker’s rights. All workers should receive a right to remuneration for work performed. This right is closer to civil and political rights because they directly impact certain rights such as the right to property or the right to legal personality. The irregular migrant workers and their family members are the most vulnerable in society. The state must provide particular protection and avoid taking oppressive measures that do not give labor rights to such people, and this is not the goal that is being sought since it has differing effects.

Human rights such as the right to equality may be denied to some persons but their limitations must respond to the criteria of proportionality and necessity so that legitimate objectives can be achieved. Putting into action the actions to control uneven migration into a nation’s land is a reasonable aim. [12]  However, if such measures are aimed at stripping immigrants of the right of remuneration from work, then it is urgent to look into the matter. The measures should be considered if there exist other measures that are less restrictive of the existing right. Certain mechanisms can be used to control irregular immigration into another state’s land. This include penalty to those who employ workers that are undocumented criminally, reinforcing border immigration controls, using mechanisms to validate the legal status to avoid fabrication of documents, deportation of undocumented individuals, and punishing those who obligate crimes by law. It is not necessary to strip migrant workers of the payment for which they have already worked. These measures appear to be a punishment and it also affects their families. International agreement on the safety of the refugee workers’ rights and their relations serves as a chaperon to show that some restrictions to receive the right to remuneration for work done are neither proportionate nor necessary.

In the international law of human rights, one of the important principles even though it is not fully recognized is the principle of equality and non-discrimination. It is important because it guards the human rights of the immigrants and those of the undocumented migrant workers specifically. Apart from the element of equality which is essential to the rule of law, the other important element if non-discrimination assumes the most important part in the exercise of the protected rights. Discrimination is aimed at being eliminated because it violates human rights. The prohibition of discrimination entails making use of human rights and also exercising them fully. Discrimination does not give a reasonable justification and dies not also keep a fair balance between the means used and its purpose to the state.

The pillars of the international human rights law are equality and non-discrimination. They are also important in integrating international customary law. The international doctrines and the case law identify the illegitimate bases of discrimination, since discrimination only occurs based on the sole elements, for example, race. What the organizations and the states have us to eliminate the whole manner of discrimination and always have in mind its components. [13]  It is desirable to have all the attention on all the areas that show discriminatory behaviors including those that are neglected or ignored at the international level. The causes of migration are due to population movement and it is not a guarantee that the principles of equality and non-discrimination are given more attention to by the United Nations. The basic idea is that internally displaced persons should enjoy equal rights as other people and should not be discriminated against as a result of their displacement. [14]  They are protected by the norms of the international law of human rights.

Democratic forms of administration are endorsed so that they deliver its citizens equivalent rights of radical involvement and also equality of liberties that protects the citizens from the majority. These include freedom of association, freedom of speech, freedom of expression, freedom of pursuits, etc. A democratic society should be embraced without the inheritance of class privilege. There should be freedom of profession with equal rights to chances and also economic rights. This enables the members of the society and state to be independent and not economically exploited by others. The democracy of a state should allow the debate and discussion on how to resolve the issues and conflicts that are concerned with the rights and common interests of the people. This is where the democratic rights of the citizens are exercised.

Equal rights do us an intrinsic good since the only way to guarantee it is by maximizing and incorporating them directly into the ultimate good. This is entirely very appropriate. The equality and dignity of people in a state and also respect for individuals are the most important since they are promoted and protected as intrinsic values. In case we don’t understand the value of equality, we must know and treat all persons with esteem.

Human rights are broadly recognized as an effort to show people that there exists morality and it governs living together peacefully as humans. Human rights are important in guiding interests and their welfare. These rights defend the most significant parts of an entity’s life and they can be able to engage in social relationships with people and to be culturally active. Human rights are hypothetical to be the compulsory representatives to human beings if they affect somebody’s human rights. Violation of human rights leads to severe moral wring that is if the fundamental interests and welfare of individuals are not equally protected. Individuals must abide by human rights so that they can act morally at all times.

Human rights disadvantage state power in two forms which include, the negative disadvantage that describes the positive actions that a state can take and the positive claims that describes what the state can do. Human rights counter the threats that arise from a particular state which is known as the modern state since it has a range of special powers. They defend human rights on the monopoly of power that is demanded by the current nation inside the boundaries of its state, the dominion on the global level, and the nation’s entitlement to control each zone on the lives of the inhabitants. Conquest of opposing carriers of power which had always been stood went hand in hand with the rejection of the political impression that political authorities should coexist side by side.

The classification of human rights as specific rights limits state dominion and it gives rise to the impression that the presence of human rights presupposes the actual presence of a nation’s power. [15]  This impression would be misguided because individual rights can exist without the actual existence of state power. The separation of human rights and the real being of states display that they are not lawfully shaped rights but must have their foundation in positive principles. In this case, they are moral rights or natural rights.

The delinquent of poverty with deference to human rights is of great concern. There are robust responsibilities to help the deprived because poverty is a dangerous situation and the rich globally can help without solemn risk to themselves. There exists a difference as far as the responsibility for failure to offer support in a case of emergency is concerned. It always makes a great difference when a moral ring us accountable to a specific individual. Since poverty is a societal human rights problem, then a necessity for acceptable preparations should be done to ensure that these rights are secured. Employments should be offered to the jobless and the elderly in society should be given access to food and necessities. Organization donations for them are also important and it shows that we value human life at all costs.

A descriptive moral contingency is easier to describe. A descriptive ethical relativism shows us that different societies, cultures, and social groups accept different types of moral codes. The conflicts existing amongst these ethical codes have to be important. Dissimilar situations require norms of conduct. For vivid moral beliefs to be accurate, there should be a change in the elementary customs. Eloquent ethical relativism is accepted to be a more or less extreme form. A metaethical contingent delivers responses to the nature of moral truths or facts, the nature of moral beliefs, moral knowledge, and its nature, and the way the meaning of sentences are analyzed.

A society with morals and sees that human rights are observed is acceptable. Many states are still trying to educate their citizens on the importance of having good morals and ensuring that every individual is treated fairly and those discriminating against the less fortunate in the society face the wrath of the law. [16]  The states which fully know the importance of equal rights enjoy socio-economic and political norms. It is unimaginable that the possessions protected by human rights do not make a portion of the ethical scheme of ethically tolerable culture. These goods are protected by the moral norms in society.

The responsibility of the states is to protect rights and see that people are not discriminated against. All governments are to protect the life of their citizens, liberty, and security. They should ensure that no one is subjected to slavery, arbitrary arrest, detention, or torture. Every citizen is subjected to a fair trial in the court of law and that there is no corruption and favouritism based on superiority. The governments are supposed to recover the living situations of all the citizens and make sure that there is equal distribution of resources.  [17] The right to freedom of countenance thought belief and conscience must be well protected. Also, every individual should see that everyone is treated fairly, no one should be abused based on something that is irrelevant and demeans human life. All the rights should be promoted without discernment of any form.

The concept of equality and non-discrimination has evolved significantly over time. The lawful values have been drawn and the human rights forms and courts of law have advanced a rich and strict jurisdiction, giving a solid constituent to the subject of equality and non-discrimination. The most significant task now is ensuring that every human being enjoys the right to equality and non-discrimination. Equal rights remain an unsatisfied aptitude for a great part of the inhabitants. A very important component states that all individuals can partake on an equal foundation in all the parts of social, economic, and political life with choices of how equality must be recognized in all aspects of life for every individual.

Bibliography

Bernaz N,  Business and Human Rights  (1 st  edition, London 2016)

Blau J, and Moncada A,  Human Rights  (1 st  edn, New York 2015)

Castel J.G,  International Law  (1 st  edition, University of Toronto Press 2017)

Cumper P, and Lewis T,  Empathy and Human Rights  (1 st  edition, Oxford University 2018)

Knox J, and Pejan R,  The Human Right to a Healthy Environment  (1 st  edition, Cambridge University Press 2018)

Nifosi-Sutton I,  The protection of vulnerable groups under International Human Rights Law  (1st edition, London 2017)

[1]  Judith Blau and Alberto Moncada,  Human Rights  (1 st  edition New York 2015) 195

[2]  Judith Blau and Alberto Moncada,  Human Rights  (1 st  edition New York 2015) 147

[3]  Peter Vallentyne,  The Routledge Handbook of the Ethics of Discrimination  (1 st  edition Missouri 2017)133

[4]  Ingrid Nifosi-Sutton, The Protection of Vulnerable Groups under International Human Rights Law (1 st  edition, London 2017) 216

[5]  Peter Vallentyne,  The Routledge Handbook of the Ethics of Discrimination  (1 st  edition Missouri 2017)139

[6]  Ingrid Nifosi-Sutton,  The Protection of Vulnerable Groups under International Human Rights  Law (1 st  edition, London 2017) 221

[7]  Peter Cumper and Tom Lewis,  Empathy and Human Rights  (1 st  edition, Oxford University 2018) 63

[8]  Peter Cumper and Tom Lewis,  Empathy and Human Rights  (1 st  edition, Oxford University 2018) 76

[9]  Nadia Bernaz,  Business and Human Rights  (1 st  edition, London 2016) 212

[10]  Ingrid Nifosi-Sutton,  The Protection of Vulnerable Groups under International Human Rights Law  (1 st  edition, London 2017) 153

[11]  Nadia Bernaz,  Business and Human Rights  (1 st  edition, London 2016) 114

[12]  Peter Vallentyne,  The Routledge Handbook of the Ethics of Discrimination  (1 st  edition Missouri 2017)135

[13]  Nadia Bernaz,  Business and Human Rights  (1 st  edition, London 2016) 196

[14]  Ingrid Nifosi-Sutton,  The Protection of Vulnerable Groups under International Human Rights Law  (1 st  edition, London 2017) 76

[15]  Judith Blau and Alberto Moncada,  Human Rights  (1 st  edition New York 2015) 173

[16]  Ingrid Nifosi-Sutton,  The Protection of Vulnerable Groups under International Human Rights Law  (1 st  edition, London 2017) 133

[17]  Judith Blau and Alberto Moncada,  Human Rights  (1 st  edition New York 2015) 177

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Breadcrumbs

• The Right to Equality and Non-discrimination

The general principle of equality and non-discrimination is a fundamental element of international human rights law.

A useful definition of non-discrimination is contained in Article 1(1) ILO 111, which provides that discrimination includes: ‘Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in the employment or occupation [?].’ Thus, the right to equal treatment requires that all persons be treated equally before the law, without discrimination. The principle of equality and non-discrimination guarantees that those in equal circumstances are dealt with equally in law and practice. However, it is important to stress that not every distinction or difference in treatment will amount to discrimination. In general international law, a violation of the principle of non-discrimination arises if: a) equal cases are treated in a different manner; b) a difference in treatment does not have an objective and reasonable justification; or c) if there is no proportionality between the aim sought and the means employed. These requirements have been expressly set out by international human rights supervisory bodies, including the European Court (see, e.g., Marckx v. Belgium ), the Inter-American Court (see, e.g,.  Advisory Opinion No. 4 , para. 57) and the Human Rights Committee (see, e.g., General Comment 18, para. 13 and Jacobs v. Belgium ).

The principle of equality can in certain circumstances require a state to take affirmative action in order to diminish or eliminate conditions that cause or help to perpetuate discrimination. The Human Rights Committee has clearly stated this obligation in General Comment 18, and the Committee on Economic, Social and Cultural Rights frequently refers to the duty to take affirmative action in its Concluding Observations. For further analysis of this principle, see I§3.B.

A. Standards

The right to equality and non-discrimination is recognised in Article 2 UDHR and is a cross-cutting issue of concern in different UN human rights instruments, such as Articles 2 and 26 ICCPR, Article 2(2) ICESCR, Article 2 CRC, Article 7 CMW and Article 5 CRPD . In addition, two of the major UN human rights treaties are established explicitly to prohibit discrimination, CERD on the ground of race and CEDAW on the ground of gender.

The principle of non-discrimination and equal treatment is also contained in regional instruments, such as Article 2 American Declaration, Article 24 ACHR and Articles 2 and 3 ACHPR. Despite the fact that the principle of non-discrimination is contained in all human rights instruments, only a few instruments expressly provide a definition of non-discrimination: Article 1(1) CERD, Article 1 CEDAW, Article 2 CRPD, Article 1(1) ILO 111 and Article 1(1) Convention against Discrimination in Education.

Human rights instruments prohibit discrimination on several grounds. Article 2 UDHR prohibits discrimination on the following 10 grounds: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth and other status. The same prohibited grounds are included in Article 2 ICESCR and Article 2 ICCPR. It is important to note that the grounds enumerated in these provisions are merely illustrative and not exhaustive. The term ‘other status’ has an open-ended meaning; some grounds not explicitly mentioned, such as age, gender, disability, nationality and sexual orientation could also be considered prohibited grounds.

Some human rights instruments, such as CERD and CEDAW, are aimed specifically at eliminating discrimination on specific grounds. In both cases, it is possible to submit individual complaints in case of violations of the rights enshrined therein. In the case of CEDAW, such a procedure was established by the Optional Protocol adopted in 1999. These two instruments expressly require states to take action to prevent and combat discrimination committed by third persons. For example, Article 2(d) CERD reads: ‘Each State party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, groups or organisation.’ Article 2(e) CEDAW requires states ‘to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise’.

Article 2 ICESCR/ICCPR contains a general non-discrimination clause that prohibits discrimination in the enjoyment of the rights in both Covenants. In addition, Article 3 of each instrument stresses the principle of equality between men and women. These provisions should be seen as an integral part of all substantive provisions contained in ICESCR/ICCPR; a measure that, in itself, is in conformity with the substantive provisions may nevertheless constitute a violation of those provisions when they are read in conjunction with Articles 2 and 3.

The general non-discrimination clauses of each Covenant are complemented by provisions prohibiting discrimination on specific grounds. For example, Article 7(a)(i) ICESCR guarantees equal conditions of work between men and women and requires equal remuneration for work of equal value; Article 7(c) ICESCR guarantees equal opportunity for everyone to be promoted in his/her employment; Article 10(3) prohibits any discrimination in the protection and assistance for all children and young persons; and Article 13(2)(c) guarantees equal accessibility in higher education. In the same vein, Article 23(4) ICCPR requires states to take adequate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution; and Article 24 ICCPR prohibits any discrimination against children based on race, colour, sex, language, religion, national or social origin, property or birth.

Sometimes the prohibition of discrimination included in human rights instruments provides for the protection that is not limited to the rights set forth in the instruments. For example, Article 26 ICCPR, Article 3 ACHPR, Article 24 ACHR and Protocol No. 12 ECHR establish free-standing rights to equality; their application is not confined to the rights contained in the Conventions.

The importance of the distinction may be illustrated by reference to Article 14 and to Protocol No. 12 ECHR. The protection provided by Article 14 with regard to equality and non-discrimination is limited as it prohibits discrimination only with regard to the ‘enjoyment of the rights and freedoms’ set forth in the Convention. In order to fill this gap, Protocol No. 12 sets out a free standing right to equality on a number of grounds, including sex, race, colour, language, religion, national or social origin and birth. Protocol No. 12 provides a general non-discrimination clause and thereby affords a scope of protection that extends beyond the ‘enjoyment of the rights and freedoms set forth in [the] Convention’ found in Article 14.

The meaning of the term ‘discrimination’ under Article 1 Protocol No. 12 ECHR is the same as that found in Article 14 ECHR; the list of prohibited grounds in both instruments is identical and non-exhaustive.

Article 1 Protocol 12 ECHR is important to mention as its additional scope of protection concerns cases where a person is discriminated against: a) in the enjoyment of any right specifically granted to an individual under national law; b) in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; c) by a public authority in the exercise of discretionary power (for example, granting certain subsidies); and d) by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).

Several European Union Council Directives address discrimination,  inter alia , 2000/78/EC which sets out measures for equal treatment in employment. It sets out an important principle: when there is a prima facie case of discrimination the burden of proof shifts to the state.

At the African level, it is notable that the non-discrimination provision contained in Article 2 ACHPR is the first substantive right listed, appearing before life. The ACHPR lists the same prohibited grounds as the ICCPR, although instead of ‘property’ the ACHPR prohibits discrimination on the ground of ‘fortune’. Like in the ICCPR and ICESCR, the list of prohibited grounds is not exhaustive. Article 2 ACHPR is complemented by Article 3 that provides a general requirement stating: ‘1) Every individual shall be equal before the law. 2) Every individual shall be entitled to equal protection of the law.’ Furthermore, Article 12(5) prohibits discrimination in the expulsion of non nationals; Article 18(3) prohibits discrimination against women and children; Article 18(4) prescribes special measures of protection for the elderly and the disabled; and Article 13 requires equal access of all persons to public property and services.

At the Inter-American level, Article 2 ADHR and Article 1(1) ACHR prohibit discrimination on numerous grounds, including ‘economic status’. Similar to the UN Covenants, the open-ended nature of the list is reinforced by the words ‘any other social conditions’. In addition, Article 24 ACHR provides a general prohibition of discrimination in the application of the law and in legal proceedings. Although this provision does not include a list of prohibited grounds of discrimination, the Inter- American Court has declared that the meaning of discrimination in Article 24 must be interpreted with reference to the list of prohibited grounds contained in Article 1(1) ACHR. 

B. Supervision

As the prohibition of discrimination is contained in most human rights instruments and their supervisory mechanisms are analysed elsewhere in the Handbook, this section will deal primarily with Article 26 ICCPR and Protocol 12 ECHR.

Because Article 26 ICCPR is of a free-standing nature, its application is not confined to the rights contained in the Covenant. According to the Human Rights Committee’s General Comment 18: ‘Article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protections against discrimination on any of the enumerated grounds’. Article 26 comes into play when there is a legislative provision or a state action or omission with a discriminatory impact on the enjoyment of the rights not set forth in the ICCPR. As the Human Rights Committee has noted: 

When legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant. (General Comment 18, para. 12) 

The Human Rights Committee has found violations of Article 26 on several grounds, such as sex (see, e.g.  Zwaan-de Vries v. The Netherlands ); nationality (see, e.g,.  Gueye et al. v France); sexual orientation (see, e.g., Young v. Australia); religion (see, e.g., Hudoyberganova v. Uzbekistan ); and age (see, e.g.,  Love et al. v. Australia ). The jurisprudence of the Committee under Article 26 is rich and dynamic, covering a wide variety of discriminatory acts. For example, it has noted that: the exemption of only one group of conscientious objectors (Jehovah’s Witnesses) and the inapplicability of exemption for all others cannot be considered reasonable and was therefore discriminatory (see, e.g.,  Brinkhof v. The Netherlands ); to impose much more onerous conditions for choosing the wife’s surname as family name than was the case for choosing the husband’s surname is unreasonable and entails a violation of Article 26 (see Müller and Engelhard v. Namibia ); if the state provides funds for religious education for one minority and not for other minorities in a comparable situation, it constitutes discrimination (Waldman v. Canada). In Prince v. South Africa the Committee held that the prohibition of the possession and use of cannabis affected all persons equally, including members of all religious movements who believe in the beneficial nature of drugs. The Committee found that the prohibition was based on objective and reasonable grounds and concluded that the failure of the state to provide an exception for Rastafarians did not violate Article 26.

It is notable that the Committee has applied Article 26 in relation to the enjoyment of economic, social and cultural rights in many cases. This is of great significance, as until the entry into force of the Optional Protocol to the ICESCR (opened for signature in March 2009) there is no individual complaints mechanism in place for violations of economic, social and cultural rights under UN treaties. In this regard, it is important to highlight the landmark case of  Zwaan-de Vries v. The Netherlands . In this case, the state concerned argued that Article 26 overlaps with the provision of Article 2(2) ICESCR. It argued that if Article 2(2) (non-discrimination clause) and Article 9 (right to social security) of the ICESCR were not justiciable within that Covenant (in the sense that they were not subject to the same kind of petition procedure as available under the ICCPR), then they should not be rendered justiciable by means of an interpretation which imports them into Article 26 ICCPR. By refusing to accept this argument, the Committee implicitly rejected the notion that what is protected within the ICESCR cannot be protected by the ICCPR. On the contrary, the Committee held that ‘the provisions of Article 2 of the ICESCR do not detract from the full application of Article 26 of the ICCPR’.

Therefore, legislative measures setting out unreasonable distinctions between individuals regarding the economic, social and cultural rights set forth in the Covenant constitute a violation of Article 26 ICCPR and if a state has ratified the First Optional Protocol to the ICCPR, a victim of discrimination has a right to submit a complaint to the Human Rights Committee. Several important aspects of the application of Article 26 ICCPR should be noted here. First, according to Article 26 ICCPR, states parties are obliged to establish judicial remedies in the case of discrimination occurring in the public and even in the private sphere. As the Human Rights Committee has noted: 

The Committee observes that under Articles 2 and 26 of the Covenant the State Party is under an obligation to ensure that all individuals within its territory and subject to its jurisdiction are free from discrimination, and consequently the courts of States Parties are under an obligation to protect individuals against discrimination, whether this occurs within the public sphere or among private parties in the quasi-public sector of, for example, employment [?] (Nahlik et al. v. Austria).  

The application of Article 26 has served to protect individuals from discrimination in the enjoyment of a variety of economic, social and cultural rights. Of the numerous examples, mention should be made of  Waldman v. Canada , where the Committee stated that ‘the Covenant does not oblige States Parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination’. In  Garcia Pons v. Spain , it was stated that ‘although the right to social security is not protected as such, in the International Covenant on Civil and Political Rights, issues under the Covenant may nonetheless arise if the principle of equality contained in Articles 14 and 26 of the Covenant is violated.’

At the regional level, the notion of discrimination has been interpreted consistently by the European Court in its case-law with regard to Article 14 ECHR. In particular, the Court has made it clear in its case-law that not every distinction or difference of treatment amounts to discrimination. As the Court has stated, or example, in  Abdulaziz, Cabales and Balkandali v. The United Kingdom , a difference of treatment is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’. The Court has also found that a certain margin of appreciation is allowed when national authorities are assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and the background of the case (see, e.g.,  Rasmussen v. Denmark ). In Sidabras and D?iautas v. Lithuania , the Court held that a ban on former KGB officers seeking employment in various private-sector spheres constituted a disproportionate measure, even having regard to the legitimate aims (protection of national security, public order, the economic well-being of the country and the rights and freedoms of others) pursued by that ban. Marital status has been found to be an example of ‘other status’ for the purposes of Article 14 ( PM v. The United Kingdom ).

In addition, it is important to mention that the Council of Europe has established the European Commission against Racism and Intolerance (ECRI) and the Steering Committee for Equality between Women and Men (CDEG) (see II§2.B).

The African Commission has also dealt with the prohibition of discrimination. For example, in a case against Mauritania, it held that racial discrimination against black Mauritanians violated ‘the very spirit of the African Charter and of the letter of its Article 2’ ( Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v. Mauritania, Communications 54/91, 61/91, 164/97-196/97 and 210/98 ). In a case against the Republic of Guinea, an inflammatory speech by the President of the country led to human rights violations suffered by Sierra Leonean refugees. The Commission ruled that the remarks constituted impermissible discrimination on grounds of nationality, and had led to numerous violations of the ACHPR including the failure to ensure its application, discriminatory, cruel and inhuman treatment, arbitrary detention, arbitrary execution, deprivation of the right to fair trial, mass expulsions and deprivation of property ( African Institute for Human Rights and Development v. Republic of Guinea, Communication 249/2002; see also Zimbabwe Human Rights NGO Forum v. Zimbabwe, Communication 245/2002 ).

The Inter-American Court has dealt with the principle of equality and non-discrimination primarily in its advisory opinions. Particularly relevant are Advisory Opinion No. 4 on ‘Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica’ and Advisory Opinion No. 18 on ‘Juridical Conditions and Rights of the Undocumented Migrants’. In Opinion No. 18 the Court ruled that states may not ‘subordinate or condition observance of the principle of equality before the law and non-discrimination to achieving their public policy goals, whatever these may be, including those of a migratory character.’

The Inter-American Court has held that ‘Equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual’. Nonetheless, it has recognised that ‘not all differences in treatment are in themselves offensive to human dignity’. The Court has followed the general principles of international law by which ‘no discrimination exists if the difference in treatment has a legitimate purpose and it does not lead to situations which are contrary to justice, to reason or to the nature of things’. The Inter-American Commission has also dealt with the principle of equality and non-discrimination, in particular on the ground of sex. For example, in  Morales de Sierra v. Guatemala  (Case 11.625), the Commission found that the inability of married women to represent their own property in courts was a gender- based discrimination in violation of Article 24 ACHR. In  Yatama v. Nicaragua  the Court ruled that as a result of the exclusion of the Yatama (indigenous peoples party) candidates from the electoral process and its effect on the civil rights of indigenous peoples, Nicaragua had violated the right to equal protection before the law as well as Articles 8, 23 and 25 ACHR. In  Yean and Bosico v. The Dominican Republic , concerning two girls of Haitian descent who were denied the right to nationality and education because of their ethnicity, the Court found,  inter alia , a violation of the prohibition of discrimination in relation to access to nationality under the American Convention. The Court ordered the state to compensate the victims financially, publicly declare its responsibility for violating their right to education, and implement substantive structural changes in its civil records system.

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Chapter 7: English and the global perspective

7.2.4 English and linguistic discrimination (research essay)

Anonymous English 102 Writer

November 2020

After the Norman conquest of France in 1066, French rose to the seat of the world’s  lingua franca , or a language used to communicate across all other countries (Marques para. 2). French was the language of power – anybody who was anyone boasted of speaking it (Marques para. 3). All the nobility spoke it, great philosophers wrote books in it, diplomacy was conducted in it – the reach of the French language and the French influence stretched across the globe (Marques para. 4). But from what we can observe today, it does not seem to be that way anymore. Instead, there is a new language that has replaced the once dominate French – and that language is English. But how did this happen? It was not an overnight thing, where suddenly everyone woke up speaking English and living under its influence. So how, exactly, did English come to reside in this position at the top of the language hierarchy? And after it did happen, how did it come to a point where any other languages were considered inferior?

As mentioned before, English did not used to hold the seat of power against all other languages. For much of history, it was French that controlled the globe. But entering 18th   century, it started to look like French would not reign supreme for much longer (Marques para. 6). The Industrial Revolution in England pushed the country, through technological and scientific advancements, to the fore front of the scene (Marques para. 7). In addition, the British Empire began to stretch its sphere of influence across the globe, bringing English culture, and the English language, along with it (Marques para. 8). By the 19th century, the British impact spanned to all reaches of the Earth, and the barely formed, economically skyrocketing United States contributed its influence as well (Marques para. 9). According to the article “How and Why Did English Supplant French As the World’s Lingua Franca?” by Nuno Marques, “French may have been spoken in the courts of Europe all the way to Russia…. but English was the language of money, and money talks louder than philosophy.” And this certainly held true when the United States stole the spotlight from bankrupt England after WWII. In its competition against Russia during the Cold War, all eyes were on the U.S as it put forth unprecedented technologies and continued on its steady rise in power. And things only escalated from there. Today, roughly 1.5 billion people speak English – that is about 20% of the entire population on Earth (Stevens para. 2). Of those 1.5 billion, 75% of them are nonnative speakers, indicating the globality and rise the in influence of English (Stevens para. 2). It is the language of almost everything of importance – business, diplomacy, medicine, and so much more. And with English being the forefront of everything, it can be assumed that native speakers of English are given the upper hand. Any individuals speaking other languages as their primary are forced to learn English in order to spread their ideas or hold any sort of power in the gobal fields.

And there is certainly much evidence to attest to this. In the academic article “Language Bias in Randomized Controlled Trials Published in English and German,” the authors, Matthias Egger and Tanja Zellweger-Zähner, relayed their study on academic articles published English medical journals versus journals of other languages. They found that it was more likely for authors to publish statistically significant findings in English medical journals that it was for them to publish their articles in journals of their first language. According to the article “The Hidden Bias of Science’s Universal Language,” “in some non-English speaking countries… English-language academic papers outnumber publications in the country’s own language several times over (para. 1)”. This reveals that researchers are ultimately forced to publish their findings in English in order to reach a wider audience and global recognition. It also suggests the possibility of significant scientific findings being overlooked because they were not published in English and thus reached a more limited audience. In another academic article, “The Inferior Science and the Dominant Use of English in Knowledge Production: A Case Study of Korean Science and Technology,” author Kumju Hwang interviewed Korean scientists and engineers living in the U.K on perceptions of English usage. She noted that many of the Korean interviewees felt that they had a significant disadvantage because they had to devote more time and effort to learning English that could have been used elsewhere in their scientific activities (p. 407). In one interview, a scientist said “In order to learn English, we lose 20 percent of the time that could normally be spent concentrating on science. We cannot fully concentrate con science. This means that our scientific results will be reduced by 20 percent (p. 407)”. The interviewee also expressed difficulty in communication at conferences and national meetings, which she felt could lead to a disadvantage for everyone (p. 407). And yet still, if researchers want their findings to be recognized, they have to learn English and publish in an English journal. As one interviewee said, “It is…much easier to be accepted into Korean journals, due to the fact that papers of poorer quality are submitted [there]. If I discovered something important, I would not submit it to a Korean journal (p. 412).” Yet another interviewee said that there are prejudices against non-native speakers of English in the sciences that affected their ability to be successful in publishing their papers and gaining recognition for their work (p. 413).

But it’s not only countries’ academic journals that have been affected by English’s rise to power, but also their languages and cultures themselves. This first came to my attention in my German class, when my teacher was talking about something in German about the internet and she used the word  googlen  – to google. I thought that honestly quite amusing and it led me to think about what other words from the English language have been incorporated into the vernacular of other languages. In fact, the answer to that is – a lot. The article “The Influence of English” by R.L.G, details many examples of this, such as  downloaden (download) (para. 5), and also ways in which English sentence structure has rubbed off on other languages. For example, in German you would traditionally say  Es hat mir Sinn  (It has sense to me), but recently people have begun to say  Es macht Sinn  (It makes sense) (para. 3). I find this particularly interesting seeing how the tables have turned. Before the German language borrowed words from English, they were borrowing words from French. One that when I hear for the first time had me a little bewildered is the word  Chance ( same meaning in English too). The pronunciation of the word,  shaunz,  sounded so much more fluid that the normally harsher tone of the language that I was used to. But English isn’t innocent in this endeavor either. In fact, the language had a large habit of stealing words from other languages that has contributed to many of the common words we use today. These so called “loanwords” (I’d call them stolenwords) make up so much of our speech that we don’t even realize how much of our language we have absorbed from other languages. For example, the word ketchup comes from the Hokkien Chinese word  ketsiap  – which is a sauce made from fermented fish (Coleman para. 15) . Another one is cookie, which comes from  koekjes , or “little cakes”, in Dutch (Coleman para.17). But not only language has changed because of English, culture has as well. What I have noticed with specifically the influence of the United States is the seemingly “Americanization”, so to speak, of other countries. The article “America’s Cultural Role in the World Today” goes into detail about this, attributing the first huge rise of American cultural influence on other countries to the United States’s consumer economy after the Second World War (Damm para. 2).  One of the factors that the article attributes the influence of American culture to is the media. The technological advances, such as tv broadcasting, put American media at the head of the scene, and gave them a wider audience (Damm para. 6). Other factors include the arts – film, music, literature, art – all of which put international eyes on the United States. For example, the popularity of Hollywood and American films have sold the ‘American dream’ to people around the world (Daam para. 8). Unfortunately, the power the English language has acquired hasn’t only resulted in loanwords and domination of the film industry. It has also brought about biased beliefs that English is superior and prejudice against non-native speakers of English and speakers of other languages.

The occurrence of prejudice against non-native speakers of English and speakers of other languages is nothing new. Linguistic discrimination, or when someone is treated unfairly based on the language that they speak (or do not speak) and the way in which they speak (ex. accent, span of vocabulary) (Loehrke 2), has occurred all throughout history. This goes hand in hand with linguistic imperialism, which Rober Phillipson defines in his book  Linguistic Imperialism  as “the notion that certain languages dominate internationally on others. It is the way nation states privileged one language, and often sought to eradicate others, forcing their speakers to shift to the dominant language (p. 780).” Phillipson also discusses the idea of a “linguistical hierarchy” where languages are ranked as superior or inferior to one another, with the dominating language being at the top of the hierarchy (p. 2). He describes a similar pattern that has occurred in instances of linguistical hierarchy throughout history, which includes stigmatization, glorification, and rationalization (p. 2). Beginning with stigmatization, any other languages, accents, or vernaculars other than the current dominate language are deemed inferior (p.2). For instance, ancient Greeks called non-speakers of Greek  barbarians,  or outsiders (p. 2). Through glorification, speakers of the dominate language raise their language up on a pedestal above other languages, and with rationalization, establish a justification for why their language remains at the top of the hierarchy (p. 2).  A good example of this is the belief of German as the dominate language in Nazi ideology. The Nazis glorified the German language as a language of Aryan race, a people “physically and genetically superior to others” (Smith p. 151). Stigmatization, discrimination, and biased thoughts like this are present throughout the history books, but that doesn’t mean that modern people have not been affected by it.

Linguistic discrimination is still a very real occurrence and is very harmful for everyone involved. But how and why does it occur? TEDx writer Olena Levitina, in her article “Is Language Discrimination Still a Thing?”, writes that prejudice against non-native speakers stems from a lack of understanding (para. 6). When native-speakers talk with non-native speakers and cannot understand what they are saying because of their accent, they might associate their misunderstanding with the non-native speaker not being intelligent (para 6). This thought process is extremely harmful and can lead to future beliefs that anyone with that accent is not as intelligent as someone without. For example, in the academic article title “Why Don’t We Believe Non-native Speakers?”, authors Shiri Lev-Ari and Keysar Boaz recounted experiments in which they found that people were more likely to report statements spoked by native speakers as believable than those spoken by non-native speakers (p. 1093). They noted that when listeners hear accented speech, their “processing ability”, or how well they are able to take in information and understand it, decreases, but instead of just deeming what the speaker says as harder to understand, they perceive what they are saying to be less trustworthy (p. 1095). Always being thought of as less believable than native speakers is extremely detrimental, and even in some case they can become prepared for it. This phenomenon, described by Agata Gluszek and John Dovidio in their academic article “Speaking with a Non-native Accent: Perceptions of Bias, Communication Difficulties, and Belonging in the United States”, is called “anticipated stigmatization” in which the non-native speaker already expects the native speaker to have biases against them before they even open their mouth. The authors found that accented speakers of English in the United States who previously experienced conversational problems and difficulties in communication were more likely to feel anticipated stigmatization (p. 227). They suggested that if native speakers expect non-native speakers to have a harder to communicating than they actually do, they might be more likely to avoid instances with accented speakers or similar situations where they might have communication difficulty (p. 227). Thus, Gluszek and Dovidio also reported from their experiments that non-natively accent speakers expressed more feelings of not belonging in the United States, which they attributed to anticipated stigmatization and difficulty communicating (p. 288).

Linguistic discrimination directed in any situation is harmful, but it has been especially destructive in the education system. In going back to Phillipson’s book, he says about teaching English as a second language: “the spread of English shows clearly that the ‘development’ of this language has been structurally related to and contingent upon the underdevelopment of others (p. 348).” In addition, in her article “Education Equality: Mitigating Linguistic Discrimination in Second Language Teaching”, Laura Matson says that the “ideology of English language teaching is rooted in a power structure of linguistic imperialism brought about by a history colonialism in which English speaking countries have kept non-English speaking countries in a position of subordination (p. 14)”. For example, Matson details an explanation on how anxiety affects language learners’ performance and how the ideologies of teaching ESL (English as a Second Language) have contributed to this. Generally, learners at lower proficiency levels are more reserved when learning and less willing to participate because they are afraid of making mistakes and sounding “non-native” (p. 16). This is something that I can relate to as well with my journey learning languages. Especially when I was just starting out, I was afraid to answer question or speak out loud because I didn’t want to seem “stupid”. Whenever I read something out loud, I would internally cringe because even  I  could hear how bad my pronunciation was. Matson believes that the reason for anxiety in learning ESL is a direct result of the way in which the language is taught. By stressing that the “native speaker” accent is the correct, and essentially the ‘perfect’, way of speaking, pressure is put on the learner emulate this speech, and when they have difficulty with this, their willingness to participate at the risk of making mistakes decreases (p. 16). This ultimately enforces the idea of standard language ideology, which is defined by Rosina Lippi-Green in her book  Language in the USA  as “a bias towards an abstracted, idealized, non-varying spoken language (p. 289)”. This can be an extremely damaging belief, as, in referring to English, it promotes one way to speak it as the ‘right’ way, when in fact this ideology is a fallacy (p. 289). For example, Lippi-Green says that accents can be hard to change when they do not do anything to make communication difficult (p. 289) this makes it hard for there to be one language and only one way to speak it that is ‘correct’. In the article “The Silencing of ESL Speakers”, Barbara Seidlhofer, professor at the University of Vienna, says “it is easy to dismiss [various accented forms of English] as the use of incorrect English by people who have not learned it very well, but it is an entirely natural linguistic development, an example of how any language varies and changes as it is appropriated by different communities of users (para. 11).”

Another situation in which linguistic discrimination has been detrimental is in the workplace. In the academic article “Political Skill: Explaining the Effects of Nonnative Accent on Managerial Hiring and Entreprenurial Investment Decisions”, Laura Huang et. al investigate whether there is persistent bias associated with non-native speakers having weak political skills, and thus being less likely to advance in their careers (p. 1). The bias being tested in this article, called glass-ceiling bias, occurs when an individual is barred from attaining a higher position because of implicit bias against them (p. 1). Thus the ‘glass-ceiling’ refers to the idea that the individual is so close to reaching the position that they can see it through the glass, but bias has created a ceiling between them, preventing the individual from being able to climb higher up the corporate ladder (p. 1). In the experiments, Huang et. al found that native speakers of English received higher recommendations for promotions and more entrepreneurial funding than did non-natively accent individuals, therefore signaling that non-native speakers were considered to have lower political skill (p. 10). This is particularly alarming, because it shows that although non-natively accented individuals may have the same qualifications and experience (maybe even better) as native speakers, native English speakers are more frequently chosen for promotions and advancements in their careers.

But it is also important to note that not only non-native speakers of a language are discriminated against, but even native speakers as well. The most prominent example of this is discrimination against people who speak African American English, or AAE. African American English, which also has been referred to as Ebonics, African American Vernacular English, or Black English, is a dialect spoken by many African Americans in the United States (Mufwene para. 1). The linguistic features of AAE have often been criticized and denounced as grammatically incorrect compared to ‘standard’ English. For example, the usage of “double negatives” such as in “You  ain’t  getting  no  thanks from it.”(Poplack para. 3) would garner much denunciation according to standard English grammatical rules. But the fact of the matter is, that AAE is a part of the cultural identity of many African Americans just as any other accent is a part of anyone else’s. Unfortunately, due to lack of understanding and racist based biases, speakers of AAE have been, and continue to be, discriminated against. In the book  Why Are So Many Minority Students in Special Education? Understanding Race and Disability in Schools , authors Beth Harry and Janet Klinger offer a powerful example. As we discussed before, discrimination against non-native speakers of English in the education system is extremely detrimental, and the same is true for speakers of AAE in schools. Harry and Klinger found that speakers of AAE were found more often to be diagnosed with a language disorder and thus be placed in special education. The reasoned that it was often the assessors’ lack of knowledge regarding AAE and its linguistical traits that led to this diagnosis (p. 30). Assessors unfamiliar with the way that AAE functions might hear a student say something such as “he walk to school” instead of the standard English “he walks to school” and conclude that they have a language disorder, when in fact they were just speaking their native dialect. This disproportionately affects African American students, and students with other accents and dialects, giving them a disadvantage in their education. Discrimination also occurs with regional accents, most notably the Southern accent. Long held stereotypes of Southern ‘hillbillies’ and ‘rednecks’ have twisted many people’s minds, leading them to have biased views of Southerners being less educated or competent that other Americans. In the article titled “Perceptions of Competency as a Function of Accent”, Cheryl Boucher et. al found in their experiments that participants were more likely to view individuals with Southern accents as less competent that those with ‘neutral accents’ (p. 27). Participants rated the neutral speakers as being more grammatically correct and professional than speakers with Southern accents. This is similar to the common bias that African American English is grammatically incorrect compared to standard English. And it is harmful because it put speakers of AAE, those with Southern accents, and any other speakers of other stigmatized accents or dialects at an unfair disadvantage and puts untrue labels on them.

So how, then, can we stop linguistic discrimination, whether in the education system, workplace, or anywhere else? Going back to the academic article by Laura Matson, the author suggests promoting anti-racist education (p. 18). Matson argues that anti-racist education encourages a deeper look into the imbalances created between linguistically dominant and linguistically marginalized groups (p. 19). She writes that “‘merely celebrating differences (Kubota 36)’ … creates an illusion of equality that still maintains ‘existing power relations that the people on the margins are expected to assimilate to (Kubota 37)’ (p. 18)”. Matson proposes teaching English in a way that leads learners to look critically at the standard language, which allows them to question its role as a dominate language (p. 20). In the workplace and in the hiring process, writer Bridget Miller suggests in her article “Avoiding Discrimination in the Workplace” for employers to avoid “English-only” policies and train anyone related to the hiring process in unbiased interviewing (para. 3). She also wrote that it was important to note that 100% English fluency does not necessarily correlate to high job performance (para. 3). Dr. Pragya Agarwal, in her article “Accent Bias: How Can We Minimize Discrimination in the Workplace?”, says that making a conscious effort to look past bias and prejudice can create a more inclusive and amicable environment (para. 6). Through these ways, we can become more aware of our own, possibly unconscious, biases towards other non-natively accent speakers and work on ending them.

Works Cited

Lev-Ari, Shiri, and Boaz Keysar. “Why Don’t We Believe Non-Native Speakers? The Influence of Accent on Credibility.”  Journal of Experimental Social Psychology , vol. 46, no. 6, 2010, pp. 1093–1096., doi:10.1016/j.jesp.2010.05.025.

Gluszek, Agata, and John F. Dovidio. “Speaking With a Nonnative Accent: Perceptions of Bias, Communication Difficulties, and Belonging in the United States.”  Journal of Language and Social Psychology , vol. 29, no. 2, 2010, pp. 224–234., doi:10.1177/0261927×09359590.

Egger, Matthias, et al. “Language Bias in Randomized Controlled Trials Published in English and German.”  The Lancet , vol. 350, no. 9074, 1997, pp. 326–329., doi:10.1016/s0140-6736(97)02419-7.

Hwang, Kumju. “The Inferior Science and the Dominant Use of English in Knowledge Production.”  Science Communication , vol. 26, no. 4, 2005, pp. 390–427., doi:10.1177/1075547005275428.

Agyekum, Kofi. “Linguistic imperialism and language decolonisation in Africa through documentation and preservation.” In Jason Kandybowicz, Travis Major, Harold Torrence & Philip T. Duncan (eds.), African linguistics on the prairie: Selected papers from the 45th Annual Conference on African Linguistics, 87–104. Berlin: Language Science Press.

Phillipson, Robert. 2009. Linguistic imperialism. In Jacob L. Mey (ed.), Concise encyclopedia of            pragmatics, 2nd edn., 780–782. Amsterdam: Elsevier Ltd.

Smith, Woodruff D.  The Ideological Origins of Nazi Imperialism . Oxford University Press, 1986.

Matson, Laura. “Educational Equality: Mitigating Linguistic Discrimination in Second Language Teaching.”  Leviathan: Interdisciplinary Journal in English , 2019.

Huang, Laura, et al. “Political Skill: Explaining the Effects of Nonnative Accent on Managerial Hiring and Entrepreneurial Investment Decisions.”  Journal of Applied Psychology , vol. 98, no. 6, 2013, pp. 1005–1017., doi:10.1037/a0034125.

Harry, and Klinger. “Why Are so Many Minority Students in Special Education?: Understanding Race and Disability in Schools.”  Choice Reviews Online , vol. 52, no. 05, 2014, doi:10.5860/choice.185613.

Boucher, Cheryl J., et al. “Perceptions of Competency as a Function of Accent.”  Psi Chi Journal of Psychological Research , vol. 18, no. 1, 2013, pp. 27–32., doi:10.24839/2164-8204.jn18.1.27.

Mufwene, Salikoko S. “African American English.”  Encyclopædia Britannica , Encyclopædia Britannica, Inc., www.britannica.com/topic/African-American-English.

“America’s Cultural Role in the World Today.”  Access International , 2008, access-internationalvg2.cappelendamm.no/c951212/artikkel/vis.html?tid=385685.

Huttner-Koros, Adam. “Why Science’s Universal Language Is a Problem for Research.”  The Atlantic , Atlantic Media Company, 14 Sept. 2015,  www.theatlantic.com/science/archive/2015/08/english-universal-language-science-research/400919/ .

“Did You Know Many English Words Come from Other Languages? Here Are 45!”  FluentU English , www.fluentu.com/blog/english/english-words-from-other-languages/.

Levitina, Olena. “Is Language Discrimination Still a Thing?  • TEDxVienna.”  TEDxVienna , 21 Feb. 2020, www.tedxvienna.at/blog/is-language-discrimination-still-thing/.

Miller, Bridget. “Avoiding Language Discrimination in the Workplace.”  HR Daily Advisor , 7 Jan. 2018, hrdailyadvisor.blr.com/2016/03/14/avoiding-language-discrimination-in-the-workplace/.

Agarwal, Dr. Pragya. “Accent Bias: How Can We Minimize Discrimination In The Workplace?”  Forbes , Forbes Magazine, 30 Dec. 2018,  www.forbes.com/sites/pragyaagarwaleurope/2018/12/30/bias-is-your-accent-holding-you-back/?sh=1a2b81181b5a .

R.L.G. “Deep Impact.”  The Economist , The Economist Newspaper, www.economist.com/prospero/2015/07/16/deep-impact.

Stevens, Paul. “Viewpoint: The Silencing of ESL Speakers.”  SHRM , SHRM, 28 Feb. 2020, www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/pages/viewpoint-the-silencing-of-esl-speakers.aspx.

Marques, Nuno. “How And Why Did English Supplant French As The World’s Lingua Franca?”  Babbel Magazine , 2017, www.babbel.com/en/magazine/how-and-why-did-english-supplant-french-as-the-world-s-lingua-franca.

Loehrke, Katie. “Language Discrimination Is a Real Issue: Here’s How to Avoid It.”  Bizjournals.com , 2017,  www.bizjournals.com/bizjournals/how-to/human-resources/2017/11/language-discrimination-is-a-real-issue-here-s-how.html .

Poplack, Shana. “’It Don’t Be like That Now’ – the English History of African American English.”  The Conversation , 20 Nov. 2020, theconversation.com/it-dont-be-like-that-now-the-english-history-of-african-american-english-129611.

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Equality and Non-Discrimination in International Human Rights Law

Key takeaways.

Distinguishing between fundamental human rights and new rights claims not grounded in international law is needed to guard against politicization by the U.N.

“Equality and non-discrimination” are not absolute—and should not trump competing human rights and goods in order to privilege a certain ideology.

To respect principles of pluralism and the democratic will of national societies, the U.N. should not pressure them to conform to new views of sexuality.

Select a Section 1 /0

This Special Report will examine the original understanding underlying “non-discrimination” in article 2 and associated articles of the Universal Declaration of Human Rights (UDHR). It will examine how these have evolved through the expansive and contested interpretations of human rights bodies as a method of standard-setting, which has been criticized as advancing a subjective ideological agenda, and the problems this has caused when situated against the existing corpus of human rights norms. Policy recommendations are offered with a view to maintain the integrity of international human rights laws, which remains the dominant, if troubled, contemporary language of global morality.

The principle of “non-discrimination” is a key provision in the UDHR, REF serving both as a foundational principle that informed the reading of all other human rights in the UDHR—as well as a substantive right itself. Article 2 of the UDHR reads:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

During much of the UDHR drafting process, it was intertwined with “equality,” both being “two sides of the coin. REF Eventually, “non-discrimination” was disentangled from “equality” and found expression in a “strong and lean” REF article 2, which applies only to UDHR rights. The concept of “equality” took up residence under UDHR article 7, which reads: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

The second paragraph of article 7 of the UDHR only applies to UDHR rights, while the first prohibits “discrimination of any kind.” REF Egalitarian values permeate the other substantive articles, REF as did framing other rights in terms of “everyone” and “no one.”

Article 1 of the UDHR declares that “all human beings” as “members of the human family are “born free and equal in dignity and rights.” This supports the inherence theory of rights, without specifying any philosophical basis, whether the Judeo-Christian concept of imago Dei or humanist Kantian precepts. REF It clearly rejects racial discrimination, such as Aristotle’s view that some people were slaves by nature REF and Nazi Aryanism, which necessitated article 2. REF While earlier human rights documents addressed the “Rights of Man,” REF the UDHR was not a sexist document. Originally, article 1 read “[a]ll men,” but was later altered, through the activism of delegates Bodil Begtrup of Denmark and Hansa Mehta of India to read “[a]ll human beings.” REF Drafting debates also demonstrated a concern about the economic privileges associated with feudal orders. REF

Minority Rights Treaties as Prologue

Two primary ways the UDHR radically departed from its precursors are reflected in article 2.

Universality of Human Rights. First, it universalized the application of human rights to all persons everywhere. This is reflected in the first paragraph of article 2 that all persons are entitled to all UDHR rights “without distinction of any kind.” Previously, human rights instruments in the form of the minority treaties underwritten by the League of Nations were confined to protecting ethno-cultural minority groups in certain selected European states emerging out of the dissolution of the Austro-Hungarian empire.

This inter-war experiment held states accountable for the treatment of persons within their jurisdictions by empowering any League of Nations member to draw the League of Nations Council’s attention to a treaty infraction and by providing that treaty-related disputes could be referred to the Permanent Court of International Justice. It was believed that minority issues would be “depoliticized” by being removed from the sphere of diplomatic relations to that of “law” and impartial third-party resolution, minimizing the interference of powerful states in the internal affairs of weaker ones.

One might recognize in this mechanism of providing international accountability through a permanent monitor the infrastructural design for the modern human rights regime, although this was flawed in various aspects. It was selectively applied only to those European states like Poland or Czechoslovakia who were “beholden” to the Principal Allied Powers for their territorial gains; these states were disgruntled REF because they felt they were treated unequally in being subjected to international supervision, compared to other European states. Indeed, Switzerland was celebrated for its treatment of the “minorities question” through its focus on common political ideals shared by all citizens, distinct from the German ideology of defining political community by blood ( Volkstrum ). REF

The prototype of these treaties was the Polish Minority Treaty, REF in which the rights of “Polish nationals belonging to racial, religious or linguistic minorities” were recognized as “obligations of international concern.” However, while provisions like article 7 referenced the equality of “all inhabitants of Poland” under the law, the international mechanism only applied to members of minorities with grievances. While “equality and non-discrimination” found “judicial recognition” REF in these minority treaties, the UDHR applied this more broadly to individuals qua human beings, irrespective of membership in a minority group.

Territorial Status. Second, the second paragraph of article 2 affirmed that UDHR rights were to be enjoyed wherever a person lived, regardless of territorial status. The reference to “non self-governing territories” REF was designed to ensure that the UDHR included people living in colonies. This is important, considering that article 22 of the League of Nations Covenant provided for civilizationally superior states to “tutor” the “backward” people of mandated territories, as a “sacred trust of civilization” until their people were deemed ready for independence. Although mandatory powers were obliged to make annual progress reports to the Permanent Mandates Commission, to be under tutelage connoted the inferior status of a ward, not a co-equal sovereign nation. This scheme sought to mitigate the rapacity of colonialism; however, grading peoples into degrees of being “civilized” cultivated resentment. This was rejected with the advent of the peoples’ right of self-determination, which gained momentum in the 1960s, when “the subjection of peoples to alien subjugation, domination and exploitation” was declared to violate fundamental human rights. REF Notably, some of the colonial and Allied Powers long resisted the inclusion of racial-equality clauses in general instruments like the League of Nations Covenant and U.N. Charter proposed by Asian and other leaders REF for fear that this would delegitimate colonial rule or race-based immigration policies such as Australia’s “White Australia” policy. REF

Today, it is accepted that many of the non-binding UDHR standards REF have attained the status of customary international law (CIL). REF They have also been embedded in the major human rights treaties, and their influence is evident in the ubiquity of equality and non-discrimination in constitutions globally. The general human rights corpus today is grounded on the “International Bill of Rights” consisting of the UDHR and the 1966 Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR). These covenants give expression to UDHR standards and elaborate upon them. Subsequently, topic-specific multilateral treaties dealing with the elimination of specific forms of discrimination as they relate to race, women, and disabled persons were adopted. Discrimination was also addressed in numerous non-binding declarations in relation to religious intolerance; indigenous people; and national, ethnic, cultural, religious, and linguistic minorities. REF Equality and non-discrimination also feature prominently in regional human rights instruments. REF

The Inter-American Court of Human Rights, a regional human rights court REF declared “equality and non-discrimination” to be jus cogens . Thus, its status as a foundational human rights principle is unquestioned. However, the dynamic concept of equality, like liberty, is an open-textured term whose content is elusive. There are varied conceptions and formulations of equality and a range of grounds or personal characteristics on which basis discrimination is prohibited in law and policy, all carrying different human rights implications in terms of proscribed and prescribed conduct. REF

The Challenges of Formal Equality

Formal equality does not address the substantive content of the law but focuses on treating like alike in terms of burden and privilege. It proscribes unequal treatment of persons within the same class, while permitting treating what is unlike differently. All moral and legal arguments can be framed in the form of an argument for equality. Equality is, as Peter Westen forcefully argued, REF “an empty vessel with no substantive moral content of its own.” It is parasitic on an anterior moral standard; the bare invocation of “equality” provides no moral guidance on permissible differentiation.

Every substantive equality claim REF draws content from a particular philosophical view of equality, justice, and human flourishing, which determines what differences are relevant and warrant equal or different treatment. None of these are uncontroversial. Substantive equality has led to dissimilar treatment through positive action or methods like quotas and special rights to remove systemic barriers or stereotypes that disadvantage particular groups in terms of their participation in political and economic life. The goal may be to prevent status harms and to secure equality of result in terms of welfare and “equal respect and concern” REF in terms of equality as lifestyle for all social groups.

The question then is, as a matter of international human rights law, what is the content of “equality and non-discrimination” and who may authoritatively determine this, particularly when morally controversial issues are involved? In an age of identity politics, these principles have become staples in legal and political discourse, shifting away from common humanity by positing a privileged class and a disadvantaged class and prescribing a project of achieving “equality” between them.

From the original focus on combatting racial discrimination, various social agendas, particularly those based on sexuality issues that blur status and conduct, have been polarizing and divisive. While gaining traction amongst a coalition of U.N. experts and officials, supportive states, and non-governmental organizations, the sexuality agenda also attracts strong criticism and rejection. For example, the African Group stated at a Human Rights Council discussion on sexual orientation and gender identity (SOGI) issues that:

[W]e take strong exception to any attempt to try to distort the noble cause of fighting racism to promote and advocate specific forms of unacceptable social behaviour falling outside the scope of internationally agreed human rights norms and protection….[S]uch attempts are condescending and disoriented, as they constitute a form of imposition of cultural values on others, and undermine the very notion of human rights and their universality. REF

There is no universally accepted, univocal conception of equality and non-discrimination in a plural world. Norms must be rationally justified—not merely asserted—and enjoy broad support. Equality is not an absolute value and, in particular contests of applications, conflicts between competing rights and goods may arise. Classifications that satisfy tests such as reasonableness, necessity, or proportionality REF may be considered legitimate in various forums in determining how much “equality” is required. Ultimately, the just interpretation and implementation of human rights requires “sensitivity to cultural diversity and the validity of other ends.” REF

Historical Intent: Underlying Philosophy and Relevant UDHR Articles

The UDHR elaborated upon the United Nations (U.N.) Charter’s commitment to “human rights and fundamental freedoms” for all “without distinction as to race, sex, language or religion.” REF This list of four prohibited categories is the only way the U.N. Charter gave content to human rights, REF aside from the “principle of equal rights and self-determination of peoples,” which refer to a collective entity. While the list of prohibited grounds expanded in subsequent texts and the jurisprudence of quasi-judicial and judicial bodies, the focus for the first 30 years of the U.N. Charter was on racial discrimination, given issues like U.S. segregationist policies, apartheid in South Africa, and the Indian caste system. REF

To ascertain what model of equality and non-discrimination is espoused, the UDHR must be read holistically, not discretely, as an integrated document. REF Articles 1 and 2 have a descriptive function in seeking to guarantee human rights through an equality paradigm applicable to all members of the human family. Article 1 speaks positively of the reason and conscience all humans share, while article 2 is framed negatively as proscription. Equality is not just a right but reinforces the very universality of rights, as everyone is a human rights beneficiary. The U.N. Charter and International Bill of Rights REF “devote more attention” to preventing discrimination than any other single category of human rights. REF Freedom from discrimination has been called “the most fundamental of the rights of man...the starting point of all other liberties” and an “indispensable element of the very notion of the rule of law.” REF

UDHR Articles 2 and 7: Fused and Later Separated

Article 2 of the UDHR principle of non-discrimination is violated when differential treatment is accorded to an individual or group on the basis of personal characteristics. Any item in article 2 can be used to interpret other UDHR articles. For example, a person cannot be barred from the article 21 right of participation in government on the basis of language.

What UDHR article 7 added to the principle of non-discrimination was positive state obligations to protect individuals from discrimination by ensuring equality before the law and the equal protection of the law, as well as protection from incitement to discrimination. REF It creates a separate right not to be discriminated against, including rights not mentioned in the UDHR.

Given the UDHR’s individual-centric orientation, there is no minority-rights clause. However, it was thought that article 2, in referencing race, color, language, and national origin would provide a “strong protective wall around membership in ethnic, cultural and linguistic minority groups.” REF These adjectives describe the only groups currently recognized as “minority groups” in international law, rejecting a more sociological approach under which any numerical minority could be considered a minority for legal purposes. REF

The UDHR’s drafting history REF shows that article 2 shared a common origin with article 7. Originally, both were fused in a single draft provision authored by John P Humphrey, REF divided, merged again, REF and then finally found expression as two separate articles. REF Both use the prohibition against discrimination in slightly different ways. REF Rene Cassin REF redressed Humphrey’s over-emphasis on non-discrimination and discounting of the accountability component of “equality before the law,” REF by fashioning a separate article with the emphasis on equality before the law, which was removed from the first sentence of draft article 2. He thought that both articles contained similar, but not identical, ideas: Article 2 was the “non-dynamic part of the equality package,” REF while what became article 7 sought to implement and translate the principle into practical reality by granting everyone legal protection against discrimination within his or her own country. REF

UDHR Article 2 lists 10 protected categories, which goes beyond the four grounds mentioned in the U.N. Charter. To combat the fascist, racist Nazi denial of equality, the Communist delegates insisted upon adopting the prohibition against discrimination as a “drafting principle” that would “deeply affect the meaning of every article they wrote.” REF Their intent was to ensure the UDHR was “a secular document,” REF acceptable to persons from all religious and non-religious persuasions. The use of terms “such as,” which preceded the list, was meant to demonstrate the exemplary rather than exhaustive nature of the list: REF “no inequality could be justified on the basis that the given distinction was not specifically mentioned in this article.” REF Nonetheless, article 2, paragraph 1 does not establish a “general rule of equality but only of equality in regard to” UDHR rights. Article 2 does not establish “the right to equal treatment as a human right, but only as a principle of the Declaration .” REF

During the drafting process before the Sub-Commission for the Prevention of Discrimination and Protection of Minorities (SCPDPM) for example, the Indian delegate, Minocheher Masani, proposed adding “color.” The last three items, “property, birth or other status,” at the end of the first paragraph of UDHR article 2 were discussed in depth. REF In particular, “other status” would seem to encompass any possible basis for distinction, although article 2 itself is confined to UDHR rights—unlike article 7, which is broader in reach, similar to article 26 of the ICCPR.

The origins of these terms are worth examining. Before the SCPDPM, Soviet Delegate Alexander Borisov proposed including “property status or national or social origin,” REF clarifying that “national origin” meant national characteristics rather than state citizenship (nationality). REF There was some contestation over including “property status,” as the U.K. and U.S. representatives thought “property” should be deleted, leaving “status,” which they considered inclusive enough.

Discussions of Property, Birth, and Other Status in the UDHR

The Soviets considered “property status” necessary as it could affect how other UDHR rights, like the equal right to education, would be enjoyed, as the poor in many countries receive no education or inferior education. The intent was to ensure equal rights for the rich and poor, regardless of economic wealth.

In a later drafting session, Ukraine representative Michael Klekovin wanted to insert the concept of soslovie (class or social status) after “property status.” While the concept was discussed, no English equivalent could be identified. The Ukrainian proposal was directed against feudal class privilege, which was determined by birth, not wealth. REF Klekovin accepted the Chinese representative PC Chang’s proposal to add the word “or other” between the words “property” and “status”, to read “property or other status.”

Soviet delegate Alexei Pavlov later proposed before the Third Committee that the word “class” be added after “property or other status,” explaining that the U.S.S.R. amendment aimed to abolish economic privileges certain groups enjoyed in feudal Europe. While Rene Cassin thought that “property or other status” covered these concerns, he supported the inclusion of “class.”

The Chairwoman of the Human Rights Commission, American First Lady Eleanor Roosevelt, observed that the Commission added the words “or other” to the original phrase “property status” to accommodate views like that of Pavlov’s. REF A small drafting committee proposed that the Russian version of article 2 should contain the world “ soslovie ” ; its literal translation in English should be “estate,” but instead, the term “birth,” rather than “class,” would be used in the English version. Thus “birth” in article 2 was designed to prohibit discrimination “on the basis of inherited legal, social and economic differences” in the enjoyment of all UDHR rights. Morsink noted that many of the drafters understood and accepted this call for “a far-reaching egalitarianism.” REF Thus, the reference to “birth” in article 2 prohibited discrimination based on socio-economic factors, distinct from the “metaphysical and moral meaning” REF of birth under article 1. REF

The importance of the specific meaning of “birth,” which was vigorously debated, was evident in criticism directed at the style committee for shifting the placement of “birth” from the end of the list (when it was associated with the later social and economic items) to the middle (when it was associated with “race, sex, language and religion”). Soviet delegate Alexander E. Bogomolov said such placement deprived “birth” of its intended meaning, rendering it ambiguous or having biological implications. Eventually, “birth” was restored to its original place and context, thereby also restoring “its original meaning of (mostly inherited) social and economic privileges.” REF In other words, the term “other status” originally was designed to address inherited economic privileges.

Post-UDHR Developments and International Human Rights Standard-Setting

In 1966, the ICCPR REF and ICESCR REF were open for ratification and entered into force in 1976. Article 2(1) of the ICCPR and Article 2(2) of the ICESCR are non-discrimination clauses under which state parties guarantee the enjoyment of covenant rights “without distinction of any kind, such as” (ICCPR) and “without discrimination of any kind as to” (ICESCR) the 10 prohibited grounds listed in article 2 UDHR. REF General Comment No. 20 of the ICESCR Committee observed the use of “other status” indicated the changing nature of discrimination over time to include grounds comparable to expressly recognized grounds. This process involves value judgements. REF

Article 2 of the covenants express the principle that “the implementation of human rights under international law is primarily a domestic matter,” reflected in the exhaustion of domestic remedies rule. International implementation “is essentially limited to the supervision of domestic measures by political, quasi-judicial or judicial organs.” REF Article 2 of the ICCPR has an “accessory character” and can only be violated in conjunction with the concrete exercise of any Covenant right which gives rise to state duties; it does not establish “independent subjective rights.” REF The covenant does not treat equality and non-discrimination as absolute values as covenant rights draw distinctions: Article 6(2) of the ICCPR prohibits imposing the death sentence on persons under 18 or pregnant women; article 25 confines rights of political participation to citizens; while article 2(3) of the ICESCR allows developing countries to distinguish between nationals and non-nationals in granting economic rights. Both covenants contain articles that specifically mention equality. REF Article 27 of the ICCPR recognizes the rights of persons belonging to ethnic, religious, or linguistic minorities to individually or communally enjoy “their own culture, to profess and practice their own religion, or to use their own language.” The adjectives qualify and identify which minority groups have rights under the covenant, and General Comment No. 23 recognizes that state parties need to undertake positive measures to ensure this right is not violated. REF These provisions make non-discrimination the “dominant single theme” in the ICCPR. REF

Like UDHR article 7, ICCPR article 26 is an autonomous right to equality that applies to rights not mentioned in the covenant. REF While “equality before the law” relates to enforcing laws, “equal protection of the law” directs the legislature not to enact discriminatory laws, and may entail a positive duty to enact special measures REF with possible horizontal effects on others, for example, in the workplace. REF Article 26 explicitly lists grounds of prohibited discrimination by guaranteeing “all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” REF These “especially reprehended personal criteria” run “an increased risk of a violation of the prohibition of discrimination” REF and may help to establish or disprove the reasonableness of a classification.

Article 26 of the ICCPR obliges states to take active measures against discrimination. Both ICCPR articles 2 and 26 prohibit discrimination only where distinctions are unsupported by reasonable and objective criteria REF or where there is no need to secure compelling social values. As such, determining whether there is discrimination and what is reasonable must be done on a case-by-case basis, and this “depends on subjective value judgements as well as on the respective cultural, religious and social traditions of different societies.” REF For example, a system of progressive taxation requiring people in higher income brackets to pay more taxes does not violate ICCPR article 26, serving the legitimate purpose of equitable wealth distribution.

Nonetheless, the unclear meaning and boundaries of the right of substantive equality in article 26 of the ICCPR is such that the article remains “extremely controversial” with respect to its historical background and interpretation given its “potentially great explosive force.” REF The Netherlands considered denouncing the ICCPR and re-ratifying it with a reservation to article 26 in response to a Human Rights Committee (HRC) decision relating to equality of women. REF As prevailing social views are not always determinative of what is reasonable, the question of who decides whether a rule is reasonable “may be as significant as the test for what constitutes discrimination.” REF

Within the U.N. regime, specialist human rights treaties and declarations have been adopted that expand on prohibited grounds of discrimination, including age, disability, nationality, and sexuality, and embracing a complex range of factors including identity, belief, and behavior. Some monitoring bodies have advocated controversial implementation methods, as when the HRC endorsed reverse discrimination through reserved seat quotas in elected local bodies for women and reserved elected positions for certain castes in India. REF

Unlike the 1966 covenants, REF topic-specific human rights treaties have described what “discrimination’ constitutes.” REF These treaties have expanded upon the specific obligations “equality and non-discrimination” entail,’ REF such as positive action, including temporary affirmative action, to eradicate sexual stereotypes (Convention on Elimination of Discrimination Against Women [CEDAW], article 5), or to correct historical injustices. The CEDAW targets both direct and indirect discrimination. The Committee on Elimination of Racial Discrimination (CERD) condemned segregation as discrimination, REF while the CEDAW committee issued recommendations treating violence against women as systemic discrimination. REF

Discrimination is addressed through methods like education and laws criminalizing the advocacy of racial or religious hatred, as article 20 of the ICCPR requires. The Convention on Rights of Persons with Disabilities seeks to promote equal treatment when possible, while respecting the different needs of the disabled by requiring states under article 5(3) to “ensure that reasonable accommodation” is provided. These treaties recognize that adopting special measures to accelerate de facto equality do not constitute discrimination, which goes beyond viewing equality and non-discrimination as largely “last resort procedural provisions,” REF in embracing a substantive conception.

Developments and Trends: Juridical Status and Interpretive Disagreement

While there are core equality and non-discrimination provisions in primary international human rights instruments, their variable formulation and interpretation has “led” to a spectrum of different results.” REF They contain open-textured terms like “any social condition” or “other status,” catch-all clauses to potentially accommodate any distinction, and which could be abused. This gives rise to the problem of who should decide what constitutes a category of prohibited discrimination and on what basis? Typical of U.N. human rights monitoring bodies, the Human Rights Committee has found that the list of prohibited grounds under article 26 of the ICCPR was not closed and that “nationality” was covered under “other status.” REF

In one of the great controversies of our time, discrimination on the basis of sexual orientation or preference has been enlisted before domestic courts and international forums in matters relating to laws criminalizing homosexual conduct, efforts to equalize the age of consent regarding heterosexual and homosexual conduct, REF and same-sex marriage. Such issues may be characterized as a matter of public morality to be determined by elected legislatures or as implicating justiciable constitutional rights to equality or privacy. Although a constitutional right in some jurisdictions, the claim that prohibiting discrimination on the grounds of sexual orientation is an international (as opposed to regional) human right is a contested one. The suggestion that equality arguments can add “decisive weight” to complex legal debates by helping “to depoliticize issues or at least to make them more politically digestible” REF is somewhat disingenuous. This is to use equality rhetorically, in the sense that no one wants to be against “equality”—but it evades the need to justify an alternative ethic privileged under the guise of equality.

While the substantive issues concerning rights based on sexual orientation will continue to be debated globally, we must resort to the test of international legality and the doctrine of sources to ascertain whether a putative norm has acquired the status of international law ( lex lata ) or whether it remains a political claim/soft law ( lex ferenda ).

Customary Human Rights Law

In order to be recognized as a matter of customary international law, a putative norm must have both “extensive and virtually uniform” REF state practice and opinio juris, a sense of legal obligation by states as distinct from comity, tradition, or expediency.

In proving consistency of practice, the sample size cannot be selective. For example, the Singapore High Court upheld the constitutionality of a law criminalizing homosexual conduct by males, attributing no weight to jurisdictions that decriminalized homosexual conduct and the positions of international and regional organizations. What is adopted elsewhere may not be suitable in Singapore. While Canada and the United States have decriminalised homosexual conduct, other countries continue to criminalise it “such as Botswana, Malaysia, Sri Lanka, Sudan, Tanzania, Yemen and the Solomon Islands.” REF

These divergent approaches do not demonstrate the “extensive and virtually uniform” practice required for a norm to attain CIL status. Indeed, the evidence indicates that a significant number of states do not consider there to exist a binding international legal obligation to decriminalise homosexual conduct, given their retention of laws criminalising sodomy. This points to the lack of international legal status of a putative norm prohibiting the criminalisation of sodomy, which is at best lex ferenda , not lex lata . REF

Even if a CIL norm evolves with the support of most states, it may not apply to a persistent objector state. REF When a CIL norm is opposed by a state, the issue is what rank it receives within a monist or dualist municipal legal systems, whether it is superior, co-equal, or inferior to the constitution and statutes, for example. In a monist system, a CIL may be directly received as part of the national legal system and may be applied by a court for various purposes, such as to influence interpretation or to ground a cause of action.

However, the automatic reception of a CIL norm within the domestic legal system does not settle the rank a CIL norm may enjoy within a municipal system. It may carry the same or greater weight than statutes or the common law (case law). In a dualist system that emphasizes national sovereignty and self-determination, CIL is not automatically part of domestic law, but must first be incorporated into national law—such as through express judicial recognition and acceptance or a statutory enactment—in order to have legal effect. There is no uniform global approach on how international law is ranked within a domestic legal system, whether it has constitutional, statutory, or common law status, REF such that close attention must be paid to the context.

Controversial Claims Based on Sexual Orientation

While equality and non-discrimination may be a foundational human rights principle, a controversial interpretation of it involving discrimination on the basis of sexual orientation does not command universal consensus that it enjoys legal status. A global examination of national approaches demonstrates widespread dissent both within and between states and between inter-governmental organisations.

Within the U.N. regime, the creation of the controversial mandate of the U.N. Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity (SOGI) met robust resistance. In particular, the lack of clarity of the vague terms of “sexual orientation” and “gender identity,” which were not enshrined in international law, was such that member states were concerned that the mandate could not be carried out fairly. REF Political strategies to mainstream the SOGI agenda within the U.N. human rights regimes include groups of states issuing joint statements before the Human Rights Council, rather than risking defeat by introducing it as a resolution for the U.N. General Assembly to vote on. The latter may be met by counter-resolutions. REF High level U.N. bureaucrats REF actively support the SOGI agenda, and some states use the Universal Periodic Review process to draw attention to SOGI issues. REF

The Absence of Consensus Around New SOGI-Based Rights

For every Council of Europe recommendation to combat SOGI discrimination, REF there is a competing view that the attempts to add SOGI as protected categories to international treaties does not, in fact, seek equal treatment—but instead seeks special rights for a specific group of individuals united only by their sexual conduct and subjective internal sense of gender. The lack of clarity around the meaning of SOGI discrimination contributes to these concerns. In Western societies that have adopted SOGI non-discrimination laws, mere disagreement over same-sex marriage has led to state punishment of religious believers. REF

A report prepared for the Organisation of Islamic Conference (OIC) views SOGI-based claims as “the most controversial subject” pitching “traditional societies in the Muslim and most African countries as well as many of the religious communities against Western societies,” where activists are “lobbying hard” to claim SOGI “as one’s inherent human right based on individuals’ choice and consent.” REF The OIC Report underscores that Muslims hold “no specific animus against homosexual individuals”; rather, they disapprove of sexual behavior that goes against their religious beliefs. REF The report considers that special rights for so-called “sexual minorities,” which is not a legal term of art, REF are unnecessary as international human rights law has enough clear provisions to combat human rights violations, including violence and discrimination, against any person or group on any ground. The report considers that sexual orientation has no legal foundation in human rights law and that this vague term was never defined or accepted in any human rights instrument or U.N. document by the consensus of member states.

The OIC report considers that “the slanted narrative of ‘genderless marriage’ and ‘alternative form of family’” based on one’s “claim of genetically predisposed ‘sexual orientation’” as a basis of seeking “specific protective laws” is a “suicidal social experiment.” REF Islamic teachings, and indeed, mainstream Judeo-Christian teachings, do not support homosexual conduct as an identity or the norm. REF It recognises that debates about whether homosexuality is inborn and immutable or whether reparative therapy is possible for gender identity disorder are heavily politicized. REF

The OIC report supports the traditional view of marriage and family, which it considers “under assault” by those who argue marriage is based on so-called heteronormative biases or based on sex stereotypes and who seek to radically redefine it as the “union of any two persons.” REF Indeed, a person identifying as homosexual and a heterosexual person have the equal right to marry someone of the opposite sex, provided other conditions are observed, for example, age, blood relation, and not already being married. What is being demanded is not equal access to marriage as an existing good, but demands for “the transformation of that good,” REF that is, to redefine marriage.

There are, of course, human rights to which all human beings are entitled, regardless of sexual orientation or preference, such as the right to vote, to a fair trial, and equal pay for equal work. As such, each claim must be examined on its merits to see if it is based on an objective and reasonable classification. But these sharply divergent views underscore a lack of consensus about the issue of whether the emerging claims of rights based solely upon sexual orientation and gender identity constitute universal human rights.

Same-Sex Marriage and Subsidiarity in Europe

Some jurisdictions, including Western Europe, have recognized same-sex marriage based on a constitutional right to privacy or equality. REF However, the European Court of Human Rights (ECHR) in Schalk and Kopf v Austria also recognizes that states have a valid interest in legally protecting the traditional definition of marriage. REF There was little common ground between contracting states in Europe about such sensitive areas of social, political, and religious controversy, owing to the differing cultural, historical, and philosophical differences of these states. Further, the Constitutions of Poland, Bulgaria, Slovak Republic, Croatia, Slovenia and Hungary affirm marriage as a union between a man and a woman, underscoring the lack of even a regional—much less a global—consensus on whether equality and non-discrimination require the recognition of ‘same-sex marriage.’

Thus, regarding controversial issues like same-sex marriage or euthanasia, REF European states enjoy a wide margin of appreciation, with the ECHR leaving the matter to the national authorities and democratic deliberation. To act otherwise would be to “lose sight of the subsidiary nature” of the ECHR’s international enforcement machinery. REF The domestic margin of appreciation goes hand in hand with European supervision. The court has permitted restrictions on convention rights such as expressive freedoms where the domestic laws of the contracting parties lack “a uniform European conception of morals” and where the views taken by these laws as to what morals require varies both in time and place. Given that national authorities were in “direct and continuous contact with the vital forces of their countries,” the ECHR considered these state authorities were better positioned than international judges to give an opinion on “the exact content of these requirements” and the necessity of restrictions. REF

Human Rights Treaty Law

No U.N. human rights treaty explicitly prohibits discrimination on the grounds of sexual orientation, although regional treaties or some domestic constitutions have done so. REF Indeed, activists have opined there are “two particular omissions” in the UDHR: Sexual orientation and gender identity are not mentioned in article 2. Nor does article 16 explicitly establish rights for same-sex couples to marry and found a family. The issue was clearly not raised during the drafting of the UDHR in 1948 or during the drafting of the 1966 covenants.

This omission is described as “understandable” since “a new normative context around sexual orientation and transgender status has only emerged in the past 20 years.” REF While there is a growing trend of international human right bodies recognizing these, the issue remains fiercely contested. The grounds of prohibited discrimination are not closed, and attempts are being made to declare or imply a new right and park it under the apparently all-encompassing category of “other status,” or to expansively read existing rights or principle. This raises the question of what constitutes a legitimate interpretative approach in construing treaties.

If a treaty vests an adjudicatory body with powers to make binding judgements, this creates binding treaty obligations for state parties only, not for third parties. REF If the treaty declares pre-existing CIL or has the effect of crystallizing CIL at the moment of adoption or subsequently generates a CIL rule through widespread consistent state practice, the treaty norm is generally binding qua CIL norm, not qua treaty norm. REF Factors like the extensiveness of ratification, the number of reservations affect the assessment of whether such extensive consensus has been reached, pointing to the generality of a putative CIL norm. REF

In the absence of a U.N. human rights court, regional human rights courts, such as the Inter-American Court of Human Rights for example, have read “any other social condition” under article 1(1) of the American Convention on Human Rights to include “sexual orientation discrimination,” which could be limited only by “weighty reasons.” REF These decisions bind state parties in contentious cases as a treaty obligation. REF

Certain human rights bodies may have monitoring or quasi-judicial powers, but no U.N. treaty authorizes a treaty body to issue binding decisions on state parties when considering their state reports, only “concluding observations” REF and recommendations; such bodies may also issue general comments on specific treaty clauses that are hortatory, not mandatory. When optional protocols authorize individuals to send communications alleging human rights violations to a monitoring body, that treaty body may examine the communication and transmit its views with its recommendations to the concerned parties. REF They do not have judicial power to issue binding judgements or to declare law by fiat, though the interactions of these bodies with state parties may provide evidence of emerging norms.

In this dialogical process, these bodies can push an agenda through publicity, as when the HRC frequently raises sexual orientation issues in relation to criminal law, the workplace, and the lack of anti-discrimination legislation or educational programs to combat negative attitudes toward homosexuality. REF

Many human rights bodies with cosmopolitan drives have sought to promote their vision of substantive equality by expansively interpreting what equality and non-discrimination requires or by a radical interpretation of the text not contemplated by the authors of an instrument. A prominent example is when the HRC, under ICCPR articles 2 and 26, opined that sex (a biological concept) could be interpreted to encompass sexual orientation and gender identity (social constructs) in Toonen v Australia . REF The decision itself was based on the committee’s view that the right to privacy under article 17(1) of the ICCPR was violated by the Tasmanian Criminal Code criminalizing homosexual conduct. In a later decision, the HRC stated that sexual orientation was covered by the “other status” grounds of article 26, rather than as an aspect of sex. REF

To read sexual orientation into “sex” is a method that has no basis in historical intent or, indeed, the conventional method of treaty interpretation, as set out in the Vienna Convention of the Law of Treaties (VCLT). REF What the text meant to the parties collectively when they were negotiating or ratifying the treaty in question needs to be examined to see whether there was intent to include a particular implicit ground of discrimination. REF The point is to detect the parties’ intention, not to supplant them, as U.N. bureaucrats do not have legislative powers to speak for the international community—nor do U.N. monitoring bodies have determinative power to declare what the treaty means. It does not appear from any of the discussions during the 20 years between the adoption of UDHR article 2 and ICCPR articles 2 and 26 that there was any contemplation of the non-discrimination clause requiring states to repeal laws criminalizing certain forms of sexual conduct. During that time, most nations had laws against homosexual conduct and similar practices, which were considered contrary to public morality. REF

Article 31 of the VCLT provides that treaties shall be interpreted “in good faith” to ascertain the “ordinary meaning” given to treaty terms “in their context” and “in light of its object or purpose.” REF Recourse to the travaux preparatoires is permissible to confirm a reading, under VCLT article 31, unless such reading is ambiguous, obscure, or leads to a “manifestly absurd or unreasonable” result under VCLT article 32. Article 31(3) provides that any subsequent agreement or subsequent practice regarding the interpretation of the treaty may be considered. For example, if most state parties, after signing a treaty containing no express “sexual orientation discrimination” prohibition, evince a pattern of repealing laws criminalizing homosexual conduct and relate this to a need to comply with international human rights obligations, this may furnish evidence of state agreement that the treaty was meant to address and invalidate such laws. Absent such patterns, the evidence is less compelling, as when a state party attaches a declaration or reservation indicating contrary intent. Indeed, if a state repeals such legislation without reference to the need to fulfill human rights obligations, this does not provide material evidence of CIL, as reasons for amending a law may lie in political compromise and desire to please special interest groups or constituents.

There is no necessary connection between legalizing a once-criminalized practice in the name of equality, non-discrimination, and accession to a human rights treaty; what is required is a sense of legal compulsion as proof of opinio juris . State parties vary widely in their attitudes and practices toward homosexual conduct, from treating it as a right to treating it as a violation of a public good. Where legislatures genuinely object to certain conduct and are not seeking to persecute people on the basis of a “status,” there can be no consensus that a treaty with a non-discrimination guarantee should be read as prohibiting distinction on grounds of sexual orientation. Even if it is the view of the treaty-monitoring committee, these views do not bind state parties or reflect the emergence of a CIL norm, as the practice of state parties must be factored in.

Argument by Reiteration

Toonen is celebrated as a strategy for advancing the SOGI agenda in an international forum at a stage in history when the agenda had little traction before legislatures and courts, producing a decision that could be used to precipitate domestic legal changes. While the views of human rights treaty bodies are not enforceable and easier for states to ignore than legally binding judgements, it has been noted these are “widely published, and carry significant moral and persuasive authority.” REF A HRC decision influenced the Australian Parliament to enact laws rendering Tasmania’s law against homosexual conduct ineffective. There is a tendency to use quasi-judicial language to confer an aura of authority upon these bodies’ recommendations. REF Further, non-binding HRC decisions are treated like precedent, framed as asserted rules of law, and cited repeatedly by U.N. bureaucrats, REF committees, REF and even some foreign courts REF sympathetic to expansive readings of equality, non-discrimination, and privacy rights.

Many U.N. bodies and officials later cited Toonen as though it were authoritative precedent: This is an exercise in self-validation and not an accurate assessment of state practice and opinio juris , nor is it a legitimate interpretation of a legal right. Similar to the “living tree” approach to constitutional interpretation, in which the constitution as an organic instrument is read in a “progressive” manner to adapt it to changing times, elite judges or bureaucrats are assumed to know what progressivism requires, despite difficulties because “progress is a comparative of which we have not settled the superlative.” REF This type of interpretive method discounts historical intent, precedent, and even principle, in favor of the judicial imposition of subjective political preferences as an exercise in counter-majoritarianism. It is unclear why a judge would do a better job than “majoritarian politics” in discerning what a progressive rights interpretation might be, given there is no uncontroversial theory of what minority interests deserve protection. REF

“Living tree” approaches may be endorsed in certain jurisdictions, but they also attract criticisms of judicial overreach or juristocracy. Some consider that the rule of law and separation of powers is undermined where courts operate as second legislative chambers, a role certain judiciaries assiduously reject. REF Various regional human rights courts and U.N. bureaucrats appear to favor reading human rights treaties as “living instruments,” REF —discounting historical intent—and allow their preferred value-laden interpretations to be advanced. This renders texts infinitely malleable, enlisted to serve whatever the interpreter deems a worthy cause. The strategy of reiteration is to keep repeating opinions until they achieve actual or perceived canonical status, with successive iterations relying for authority mostly upon one another. Each victory is celebrated as the acme of progressivism, and dissenting views are silenced through intimidation, shaming, and slurs.

State parties of human rights treaties do not regard comments by treaty bodies as legally binding, REF though their statements may exert political pressure and influence national courts. Hence, a wide divide may exist between state practice and the opinions of treaty bodies and U.N. personnel, REF which are neither authoritative nor persuasive. The question of how and who should interpret open-textured treaty terms boils down to one of institutional competence and propriety.

Soft-Law Instruments

Activists have invoked soft international law declarations or political documents in legal non-discrimination arguments as a political strategy to advance certain interpretations of texts or in hopes of generating CIL. While some see soft-law norms in instruments like General Assembly resolutions carrying the support of some states as evidence of an emerging trend pointing to a human rights norm, others view them as indicating the absence of opinio juris in the face of sustained opposition, thus depriving the resolution of any legal authority. REF

Private actors, describing themselves as a “distinguished groups of human rights experts” and activists, have issued non-binding documents such as the 2007 Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (YP), REF which they characterize as representing the current state of international human rights law as it relates to SOGI issues. This document claims to draw on treaty provisions and CIL norms that deal with equality and non-discrimination in general. REF The YP were updated and extended in 2017. Efforts have been made to promote it REF and track its impact. REF

Rather than reflecting the existing state of international law, the YP introduces radical interpretations of existing and novel rights, raising the banner of preventing “discrimination” to promote a radical agenda with implications for law, family life, and sexuality. These have been challenged as “an affront to all human and especially natural rights” REF and rejected, demonstrating a failure of consensus. REF Certain YP principles threaten to truncate other human rights, such as expressive freedoms that, it argues, must not be exercised in a way that “violates the rights and freedom of persons of diverse sexual orientations and gender identities.” Demands that education be enlisted to promote respect for diverse sexual orientations or that society support gender transitioning and reassignment programs are controversial: They seek to use state power to impose moral fiats, precipitating clashes with social conservatives and those of religious conscience, particularly of the Abrahamic faiths.

The YP are not the product of government negotiation and agreement, but of a group of self-selecting experts, U.N. bureaucrats, and LGBT (Lesbian, Gay, Bisexual, and Transgender) pressure groups attempting to present a radical social policy vision as binding norms. Some states have utilized it as a tool: France made an explicit reference to the YP in a Joint Statement on SOGI it sponsored issued in December 2009, although Ireland, Malta, and Poland demanded this reference be removed. REF Nonetheless, it is clear that activists will continue to rally around the YP to try shape debate around its terms, to enhance its appearance of being authoritative, and to pass off lex ferenda as lex lata . REF This, is in spite of criticisms that it constitutes a misinterpretation of the non-discrimination clauses contained in long-established human rights instruments and that sexual orientation is a vague term lacking legal foundation in any international human rights instrument and not agreed to by the general membership of the UN. Furthermore, Principle 2 of the YP seeks to elevate discrimination on grounds of SOGI to an effective trump— with no room for reasonable accommodation since equality is to be realized “whether or not the enjoyment of another human right is also affected.” REF

This is nothing short of a power grab in service of a political project, without consideration for other human rights. Yogyakarta Principles drafter Michael O’Flaherty offered a provocative view that the reference in article 3 of the ICCPR to the “equal right of men and women” to enjoy ICCPR rights gave an elevated status to the prohibition against sexual discrimination. Since he deems sex interchangeable with sexual orientation, he relied on article 3 for the radical proposition that article 3 apparently “appears to elevate the suspect nature of sexual orientation-related discrimination to a higher level than that of the other listed categories.” REF

Judicial reception towards using the YP as a guide to interpreting broad concepts like privacy and equality have been mixed. While the Nepalese Supreme Court cited YP definitions of SOGI, REF the Philippines Supreme Court held that the obligations outlined in the YP “were not reflective of the current state of international law,” had no grounding in the list of formal sources under article 38(1) of the Statute of the International Court of Justice, and were not binding at international law. REF The petitioner, it argued, had not “undertaken any objective and rigorous analysis” to ascertain the “true status” of “these alleged principles of international law” which were at best, de lege ferenda , or simply “well-meaning desires.” The court observed:

[N]ot everything that society—or a certain segment of society—wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights and is a result of the notion that if “wants” are couched in “rights” language, then they are no longer controversial. REF

The judicial role in addressing emotionally-charged social issues in which “societal attitudes are in flux,” where even “the psychiatric and religious communities are divided in opinion,” was not to impose its own views. Rather courts should “apply the Constitution and the law,” uninfluenced by public opinion, confident in the belief that “our democracy is resilient enough to withstand vigorous debate.” REF Soft law norms may precipitate debate, but it is not a foregone conclusion that they will “harden” over time to become binding law.

Problems with New Interpretations of Equality and Non-Discrimination

In implementing human rights, much harm can be done “if not entrusted to the care of impartial, efficient and reliable institutions.” REF Within the domestic context, debates over individual rights are struggled over “through a process of public debate, informed by the opinions (rarely unanimous) of professional elites.” Authoritative institutions may revise decisions. To prevent the imposition of the diktat of an unelected, unaccountable bureaucratic elite and the politicization of human rights law, “We need to have something like that [the equivalent of domestic processes and debate] in a form suitable to the international arena.” REF

This is particularly important in relation to equality and non-discrimination, given their potential far-reaching effects in encompassing all laws and policies—even their potential horizontal application to private actors. Given the proclivity of many U.N. human rights actors to adopt expansive value-laden interpretations of this principle and to discount historical intent or general state agreement, it is important to be aware of the negative impact certain strains of substantive equality poses to freedom of public discourse, democratic will and other competing human rights and goods, contrary to the principle that human rights should be universal, indivisible, and mutually reinforcing.

Taking Seriously the Law of Sources and the Universality of Human Rights

The principle of equality and non-discrimination is central to the human rights movement, REF given that human rights are the only universal rights. However, to assert that everyone should enjoy equal rights is rhetorical, providing little guidance on how to implement and realize a human right. Because of its open-textured nature, there is a danger that equality and non-discrimination may become empty vessels to be filled with one’s preferred political philosophy or prey to political capture. This is evident in the use of non-discrimination to drive changes to law and sexuality, for example. Given the diverse conceptions of equality, this cannot be discussed in the abstract, but must be grounded in history and context. While law is not static and does change, it must be changed by legitimate processes.

In order to uphold the integrity of human rights law, a distinction must be preserved between core human rights as legal rights and contested political claims. Caution is needed against the sort of reckless activism that ignores the fact that rights have duties and that the existence of a duty “has to be established beyond pointing to the value of the right to the right-holder.” REF Attempts to use human rights terminology to legitimate a politically charged agenda will politicize human rights and devalue their currency. The legitimacy of human rights will be undermined where it acts to service the one-sided championing of liberal progressivist or fundamental libertarian values, “some of which run counter to the cardinal beliefs of various religious traditions.” To maintain credibility, human rights law must operate as the “ ius gentium of our times, the common law of nations.” REF

The development and application of human rights law must adhere to general international law principles and doctrines that largely rest on state consent, mitigated by the idea that this is constrained by higher law principles drawing from the natural law/natural rights tradition. Human rights law must broadly have the support of the will of the international community as a whole , and the views of the international community of states cannot be discounted in ascertaining the juridical status and normative content of a norm. Just as human rights law does not rest in theory on majority will, neither does it turn on minority will. An unrepresentative cosmopolitan elite is not empowered to declare the law for the rest of the world as keepers of the standard of civilization as they define it. Soft-law claims should not be carelessly treated as international legal obligations. National courts and authorities have the liberty to receive or reject soft law claims since these only provide guidelines, not obligations.

It undermines the universality of human rights law to claim that a controversial putative right is a human right. All such claims must be assessed and have a basis in treaty, CIL, or possibly general principles of law that would require said right to be present in all major legal systems, common and civil law, Islamic, Buddhist, communitarian, and liberal democracies. This is important, to avoid “human rightism,” REF which confuses and conflates the categories of law and human rights ideology.

On rights claims that implicate matters of political and moral controversy, these should be debated before democratic domestic forums in order to respect the principles of national sovereignty and non-interference in internal affairs. This is distinct from the principle that established human rights are matters of international concern.

Legitimate Difference of Views and a Global Margin of Appreciation

Author Susan Marks admits that “gender and sexuality politics may well appear less global when viewed from other vantage points,” REF in which light, to see sexual orientation discrimination as a settled matter is itself a European or North American perspective. There is a legitimate difference of views in this matter, shaped by national constitutional commitments and varied theories of judicial review in relation to structuring the parameters of rights and public goods and according weight to historical intent, precedent, principles, or moral theory.

Constitutions may specify what constitutes prohibited discrimination that courts are to give effect to or may give courts counter-majoritarian checks to develop these grounds through more open-textured provisions prohibiting discrimination on enumerated and analogous grounds. REF Courts may demonstrate fidelity to the constitutional text in enforcing an explicit ground of discrimination REF or in refusing to read in an implied ground on the basis that this should be by way of constitutional amendment where this is a viable possibility. Courts develop tests of legitimate differentiation based on criteria of necessity, reasonableness, or proportionality, which are shaped by contextual factors like culture and political philosophy. Courts may take sides on contested issues, such as whether homosexuality is immutable and warrants protection by prohibiting sexual orientation discrimination, or decline to do so, according to specific conceptions of separation of powers. REF While some courts have found that laws criminalizing sodomy, which distinguish between heterosexual and homosexual conduct, can be justified on grounds of public morality, others take a contrary view. REF

In Toonen , the HRC opined that treating sodomy laws as “moral issues” for “domestic decision” would immunize state interferences with privacy. REF Former U.S. Supreme Court Justice Anthony Kennedy in Lawrence v Texas REF noted that the court’s obligation was to “define the liberty of all, not to mandate our own moral code” drawn from tradition and religious beliefs. This is disingenuous insofar as it suggests such a definition of liberty is “neutral” and does not entail imposing a moral norm.

The reality is that moral decisions are unavoidable, with one public morality norm being replaced by the liberal vision of public morality, which treats heterosexual and homosexual sexual expression and partnership as morally equivalent. The latter assumes the state is being “neutral” REF when allowing individuals to decide on their personal vision of the good, based on the meta-liberal norm of individual autonomy. The liberal theory of the good, based on consent and desire, is not neutral in espousing hedonism. REF Indeed, the enactment of “hate speech” laws to penalize speech that ostensibly promotes or incites sexual orientation discrimination brings about the re-moralized state that centralizes and deploys power to bring about a certain way of thinking about public sexual morality. This could violate other human rights like freedom of thought and religious belief, as well as stifle legitimate public debate and free speech. One man’s hate speech is another man’s political critique. Comparative analysis reveals no uniform approach.

Other courts consider public morality a legitimate legislative purpose since the state is not wholly without authority to regulate matters concerning sexual morality such as bestiality, incest, and child sex grooming; indeed, some courts appreciate that social values shape what equality requires, REF and that legislation is needed to protect the “moral ethos of society as a whole.” REF However such laws that affect privacy by criminalizing private sexual conduct are subject to tests of proportionality, necessity, and reasonable classification. REF

To merely invoke “equality” to argue against differing ages of consent for homosexual and heterosexual sex, for example, is to cynically deploy equality as “a mask for a substantive conception of the good which informs the distinctions and values at play.” REF Equality claims disguise hidden assumptions. There is a certain dishonesty, or at least inconsistency, between assertions that “decriminalization does not imply disapproval” REF (in relation to sodomy law and privacy under the ECHR) and the argument that laws criminalizing homosexual conduct have a negative health impact (in that many homosexuals will not seek medical treatment for fear of the stigma). Implicitly, the assumption is that decriminalizing sodomy will remove the stigma associated with homosexuality and encourage more homosexuals to seek medical care when society approves of or morally equates homosexuality and heterosexuality. REF Decriminalization, the removal of legal sanction, does signify or signal moral approval, which is a precursor for securing the advance of the far-reaching LGBT agenda. REF

Arguably, when a proposed human right benefits a favored class of society while diminishing the human rights of others, it should be subject to rigorous democratic debate to ascertain the implications of such a claim. A human right not to be discriminated against on the basis of sexual orientation, which implicates a contested vision of equality, should not be prematurely declared a human right in order to quarantine it from further interrogation as to whether it adheres and coheres with the existing human rights corpus.

In this respect, the ECHR in Frette v France, REF held that adoption laws that drew a distinction between would-be homosexual and heterosexual adopters were justifiable, given the diversity of national approaches to gay adoption within contracting states. This same margin of appreciation was recognized in Schalk and Kopf v Austria REF in relation to same-sex marriage. While certain jurisdictions, as in North America, may recognize a constitutional right to same-sex marriage, this does not make it a universal human right. Even U.N. bureaucrats and human rights officials recognize there is no international human right to same-sex marriage REF drawing from equality or privacy, although they call for the legal recognition of same-sex couples and conferring upon them the same benefits traditionally married partners enjoy. REF This, however, skips over the unsettled issue of whether unisex couples should receive this legal recognition or whether homosexual partnerships are morally equivalent to traditional marriage between a man and a woman. Such matters, which impinge on cultural traditions and religious sensitivities, are matters warranting robust public discussion, which is preferable to invoking equality to sneak in a privileged ethic, while pretending to be agnostic about the good.

Within a global setting in which fundamental value divergences are more acute, it is important to recognise a global margin of appreciation in interpreting contested rights claims and protecting a range of acceptable practices to vindicate the values of pluralism, subsidiarity, and democratic will. No global body is authorised to impose a diktat over a morally charged controversy with a far-reaching social agenda such as sexual orientation as a prohibited basis of discrimination, disregarding the agreement of states and national democratic processes. REF

Clash of Rights: Sexual-Orientation Discrimination and the Assault on the Human Rights and Fundamental Freedoms

Human rights co-exist in the same political space and may sometimes qualify each other. Any new human rights claim must be assessed for how it impacts other human rights and public goods. To exalt one putative human right to trump all others would be one-sided. To be fair, any emphasis on one human right over another must flow from its status as a peremptory norm and, even then, this does not preclude the need to optimize the enjoyment of all human rights.

Principles of SOGI discrimination in particular, have far-reaching REF and negative effects on public discourse—and threaten to diminish other human rights. REF This is evident in the far-reaching, intrusive demands of the SOGI discrimination agenda, set forth in documents like the YP and the reports and statements of some U.N. human rights officials that do not carry the broad support of states and the international community as a whole. These “new rights” run roughshod over established human rights with no attempt to achieve a reasonable accommodation or to give due consideration to competing human rights and public goods. REF To advance these new rights involves promoting soft-law principle in the guise of universally binding norms.

Right to Education. Demands that governments should promote tolerance and respect for diverse sexual orientations through public education programs aimed against “homophobia” and “transphobia” REF through “comprehensive sexuality education” REF violate the human right of parents to instill values in their children. The failure to allow parents to opt their children out of public education on sexual morality contrary to their convictions would violate the prior right of parents “to choose the kind of education that shall be given to their children” as proclaimed in article 26(3) of the UDHR.

There are problems, too, insofar as the contents of “sexual orientation” are vague, and not every sexual orientation warrants protection, for example, bestiality, incest, necrophilia, pedophilia, polyamory, etc., are legally prohibited or socially frowned upon. REF Where is the line to be drawn between acceptable and unacceptable sexual orientation, and who has the authority to do this?

Freedom of Religion and Expression. Expansive readings of non-discrimination on grounds like sexual orientation promotes liberty and equality for some at the expense of equality and liberty for others—particularly in relation to freedom of religion, conscience and expression, as protected under articles 18 and 19 of the UDHR.

Statement 19(d) of the YP advocates that notions of public order and public morality should not be used “in a discriminatory manner” to restrict free expression “that affirms diverse sexual orientation or gender identities.” In the same breath, statement 19(e) advocates that states ensure freedom of expression “does not violate the rights and freedoms of persons of diverse sexual orientations and gender identities.” REF This gives one sector of a community superior rights to other sectors, which is inegalitarian. Further, 19(e) of the YP is broad enough to be weaponized to shut down debate on reparative therapy REF or views questioning the assumptions of the LGBT agenda in relation to “heteronormativity,” by proclaiming views that question LGBT assumptions be hate speech or a form of psychological harm that violates “human rights.” If all that homosexualism activists demonize as heretical is hate speech subject to legal or social sanction, the pillars of a free society that human rights are supposed to support are imperiled as moral dissent is then silenced by law or bullying tactics.

Principle 21 of YP would downgrade freedom of thought, conscience and religion by declaring they cannot be invoked to justify laws denying equal protection on the basis of SOGI and requiring that religious convictions about SOGI and their expression “is not undertaken in a manner incompatible with human rights.” REF This is vague and could conceivably apply to a religious publication that states that homosexuality is a moral wrong, curbing religious speech. REF

In the face of increasing calls to SOGI diversity, intolerance is demonstrated toward viewpoint diversity and other liberties like religious freedom, as where religious believers are expected to bear the burden and costs of their own lack of conformity in relation to views of sexual morality contrary to the non-negotiable tenets of their faith. REF In various sexual orientation discrimination cases, individuals and organizations suffer detriment for adhering to their convictions supporting a more traditional sexual ethic, such as hoteliers who refused to let out rooms to homosexual couples or Roman Catholic adoption agencies who refuse to consider homosexual couples as prospective adoptive parents. If the primary principle is the best interests of the child, can it be argued that same-sex households are not in the child’s best interests or must the contrary be assumed? Although co-equal rights may qualify each other, sexual orientation discrimination may operate as a trump card, such that when no reasonable attempt is made to accommodate the conscientious objection of a registrar who refused to conduct a homosexual civil partnership ceremony, as all employees were expected to conform to the council’s conception of equality. This coerces individuals to assent to what they do not agree with, which is oppressive. REF

U.N. bureaucrats have approved the launching of national public education campaigns to “counter homophobia and transphobia,” REF where a re-moralized state would impose a publicly endorsed ethic towards sexuality. This trivializes freedom of conscience, religious freedom, and the rights of faith communities and their members to free speech and the right to engage in legitimate public debate, as a facet of the right to political participation. REF

No Trumping Human Rights. When rights compete, different weighting of the public values a right embodies takes place. When U.N. officials and bodies are one-sided in privileging only the “human rights” of one sector of the community rather than the human rights of all, this suggests a lack of objectivity. When the prohibition against discrimination on sexual-orientation grounds operates to violate or unduly truncate other human rights, this goes against the principle of treating all human rights “on the same footing and with the same emphasis.” REF This discredits the entire human rights movement.

The bias of U.N. officials is also evident in their ideological, non-scientific use of terms like “homophobia” and “transphobia,” REF which are not mental diseases (as the term phobia suggests), but are rather pejorative slurs used against those who morally dissent from the tenets of the homosexual rights agenda. To presume to intrude into freedom of thought and conscience is to endorse a brand of cultural totalitarianism, enforced by the state or private actors in the name of human rights through political correctness codes or abusing hate speech legislation to silence dissenting views. Free society is imperiled when the human right to free speech and moral dissent is given insufficient weight, threatening the values of liberty and equality that human rights law is supposed to protect.

Resistance and Divisiveness . It is not surprising that the expansive use of non-discrimination on controversial grounds of sexual orientation discrimination has caused polarization and divisiveness among members of the international community who have begun to push back: “Where there is power, there is resistance.” REF

Religious groups in particular REF who view the LGBT agenda as a threat to religious and other freedoms have begun to warn against the mainstreaming and presentation of homosexuality as a normal expression of human sexuality (as opposed to morally wrongful conduct or a gender identity disorder). This points to the clash of incommensurate values. An OIC report cautioned against efforts to use the banner of non-discrimination to promote “radical, sexual and gender agendas related to sensitive issues regarding family, family life, or sexuality.” REF It called out agencies who seek to establish “controversial and unagreed[-]upon so[-]called human rights that may compromise or undermine our religious or cultural norms.” REF In the long run, this practice in may do harm to the progressive development of international human rights law, including areas where there is hard-earned, established consensus.

Given the arguments that SOGI discrimination is an attempt to impose radical ideologies that gain little traction within national legal systems through the back door of human rights and that the equation of “sex” and “sexual orientation” is controversial, advocates should draft their own declaration or convention on LGBT rights and put it up for free and full debate and for a vote within the U.N. General Assembly and before states for them to consider ratifying such a treaty. This is preferable to piggybacking on other human rights treaties like the CEDAW or the CRC, which were designed to address other pressing matters. A sexual-orientation-specific instrument would provide the forum for LGBT activists and their state allies to put forth their concerns and demands on their own terms, so that these could be clearly understood, assessed as claims for equal or special treatment, fully and honestly debated, and accepted, rejected, or accommodated.

Recommendations

To maintain the progress in the acceptance and application of human rights globally, it is important that the human rights project not be hijacked by politicized agendas. To be credible, there must be integrity in maintaining the distinction between lex lata (law) and lex ferenda (soft law, or an emerging norm which has yet to attain legal status). Policymakers can then with confidence work to ensure the observance and protection of ‘core’ recognized human rights norms, while making arguments about emerging claims in a transparent, reason-based manner to promote their acceptance as legal obligations.

• Policymakers should guard against the politicization of human rights by distinguishing between core human rights and contested human rights claims that are not grounded in international sources of law like treaty and CIL. The opinions of U.N. experts and bodies, while influential, are not binding.
• Policymakers should adopt a holistic view of rights, duties and goods as reflected in article 29 of the UDHR, rather than a one-sided balancing process that privileges a certain ideology. The right of “equality and non-discrimination” is not an absolute one and should not be treated as a special trump card against competing human rights and goods. Since moral judgements are impossible to evade, the moral dimension underlying law should be part of the balancing exercise, rather than arbitrarily shutting out other visions of public morality (usually the traditional ones). Ignoring religious views in particularly will cause disquiet and damage the good the entire human rights project can do. Politicizing human rights has already elicited pushback, as human rights standards and obligations cannot be developed by ignoring an important sector of the international community.
• Policymakers should be vocal about how it is counterproductive to attempt to create controversial new “rights” or standards by misinterpreting the International Bill of Rights and other international treaties that U.N. member states never articulated or agreed to. Such attempts devalue the currency of internationally recognized human rights. REF Aggressive lobbying by LGBT rights activists has been polarizing and divisive. Some states do not consider that action that discriminates on the basis of sexual orientation constitutes a legitimate area of human rights concerns REF and are critical of over-reaching U.N. bureaucrats REF and their illegitimate project of moral neo-colonialism in sexuality matters.

Varied conceptions of equality, different interpretive methods, and sexual orientation discrimination in national law have been invoked in ways that violate human rights. Therefore, policymakers should recognize a global margin of appreciation to respect principles of pluralism, subsidiary and the democratic will of national societies. While some jurisdictions may, for example, recognize same-sex marriage as part of privacy or equality rights, whether based on the democratic views of that society or their courts, policymakers should respect the political independence of other states by letting their societies decide what they wish their social fabric and sense of social morality to be—without external coercion, pressure, or intervention.

Human rights law is not made by the pronouncements of human rights experts or monitoring bodies. Though they wield considerable influence in shaping human rights discourse, they have no authority to impose a moral diktat by declaring a controversial political claim to be a legal human right.

Attempting to normalize radical interpretations of existing and established human rights norms like equality and non-discrimination through continually reiterating non-binding opinions as authoritative, complemented by aggressive lobbying, thwarts full and free debate on what should and should not be recognized as a universal human right. To shortcut the process by anointing a claim as a human right is an attempt to place the claim beyond questioning. This abuses “human rights” by using it as an illiberal trump card, REF embodying a form of moral neo-colonialism in which assertions are to be believed, not argued for and justified by appeal to the “reason and conscience” all human beings have. REF

Li-ann Thio is Professor of Law at the National University of Singapore and author of Managing Babel: The International Legal Protection of Minorities in the Twentieth Century (Boston, MA: Martinus Nijhoff Publishers, 2005). This paper is one in a series of essays on the natural law and natural rights foundations of internationally recognized human rights. The “First Principles of International Human Rights” essays propose reforms of the human rights movement for the increased protection of the fundamental and inalienable rights of all people.

Professor of Law, National University of Singapore

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Faculty Scholarship

How do you protect against indirect discrimination.

HLS’s Human Rights Program convenes experts to explore the concept of indirect discrimination on the basis of religion

In 2010, France adopted a law banning full-face coverings in public. Opposed by several human rights organizations, the law was challenged quickly in the European Court of Human Rights (ECtHR) and later before the United Nations Human Rights Committee (HRC).

In bringing the cases, the applicants charged that the law discriminated against them indirectly. On the face of it, the law treated everyone the same, but it had disproportionate effects for Muslim women who wore niqabs. Notably, the ECtHr upheld the law, while the HRC found it to be a violation of human rights.

Cases like these, and differences between approaches, occupied much of the conversation at a recent Harvard Law School Human Rights Program (HRP) workshop focusing on indirect discrimination on the basis of religion.

Gerald Neuman ’80 , the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, convened the workshop on Saturday, April 18. HRP hosted the workshop in cooperation with the Harvard Law School Project on Disability , the Columbia Law School Human Rights Institute, and the Harvard Human Rights Journal.

What is the Right against Discriminatory Impact Based on Religion?

The pursuit of equality in international human rights law includes both prohibitions of intentional discrimination and prohibitions of practices with discriminatory impact. The latter category, often designated as “indirect discrimination,” raises numerous questions that have not been fully explored. One important subset of those questions relates to indirect discrimination on the basis of religion.

Gerald L. Neuman Symposium Introduction: Harvard Human Rights Journal »

Neuman’s interest in comparative approaches to indirect discrimination was first sparked by his experience as a member of the HRC from 2011 to 2014.

“It was clear to me then that the committee had a well-established general concept of indirect discrimination but that members disagreed on how it should be applied concretely,” he said. “That made me alert to similar uncertainties in other treaty bodies and international courts over the following years.”

Neuman, who is also co-director of the HRP, has been writing on the comparative constitutional law of discrimination and comparative approaches to freedom of religion since the 1990s. The April 2020 workshop is the first in a series on indirect discrimination and its intersection with other factors.

Participants included current and former members of the HRC, such as HRC Vice-Chair Yuval Shany , who is also Hersch Lauterpacht Chair in Public International Law at Hebrew University. Members of the Harvard community and experts from civil society were also in attendance, including Victor Madrigal-Borloz , the U.N. independent expert on sexual orientation and gender identity and HRP’s Eleanor Roosevelt Senior Visiting Researcher; Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief; and Anna Batalla, human rights officer at the petitions and inquiries section of the U.N. Office of the High Commissioner for Human Rights (OHCHR).

“My hope is that these workshops will provide a forum for exploring the range of indirect discrimination and approaches to regulating it, leading to proposals for how human rights bodies could better protect subordinated groups while allowing justifiable government policies,” Neuman said.

Banning the Full-Face Veil

What is, or should be, the relationship between claims of violations of the right to manifest one’s religion as a result of a generally applicable law or policy, and claims of indirect discrimination on grounds of religion?

Sarah H. Cleveland: Harvard Human Rights Journal »

International human rights law strives for equality broadly, but antidiscrimination law plays out differently depending on the jurisdiction and the court. Over the course of the workshop, participants considered several cases from European, U.S., and international law and compared them in theory and practice.

Prior to the event, several participants also submitted essays to the Harvard Human Rights Journal, which published them in an online symposia section . Contributions from Christopher McCrudden , William W. Cook Global Law Professor at Michigan Law, and Sarah Cleveland, Louis B. Henkin Professor of Human and Constitutional Rights at Columbia Law School, helped frame the day.

A European perspective

In this brief note on legal measures addressing indirect religious discrimination, I draw from the experience of the development and use of indirect religious discrimination in several European jurisdictions: the United Kingdom (including the somewhat different legal position in Northern Ireland), the European Union, and the European Convention on Human Rights (ECtHR).

Christopher McCrudden: Harvard Human Rights Journal »

In one essay on employment, religion, and indirect discrimination presented early in the workshop, Katayoun Alidadi LL.M. ’05 , assistant professor of legal studies at Bryant University, called indirect discrimination confusing for lawyers, much less the members of civil society who must comply with antidiscrimination law in an employment setting.

“How do we expect H.R. [human resources] professionals to comprehend what even the fledging legal mind cannot?,” she asked. In the European Union, she concluded, identifying and pursuing legal action on the basis of indirect discrimination has been “disappointing.” In her presentation, she argued that a more inclusive approach would be to address such cases by ensuring “reasonable accommodation” as is done in the U.S.

Adjudicating Religion

The right to religious freedom and the right against religious discrimination should be seen as two distinct human rights, with different normative purposes. I have argued elsewhere—with Dr. Jane Norton—that religious freedom is best understood as protecting our interest in our decisional autonomy in matters of religious adherence (and non-adherence). The right against religious discrimination, on the other hand, is a sub-species of the general right against discrimination on protected grounds, and is best understood as protecting our interest in the unsaddled membership of our religious group (akin to our race or tribe).

Tarunabh Khaitan: Harvard Human Rights Journal »

Tarun Khaitan , professor of public law & legal theory and the Hackney Fellow in Law at Wadham College, Oxford University, Future Fellow at the University of Melbourne, and visiting  Global Professor of Law  at New York University Law School, presented his essay, “Adjucating Religion,” during the course of the workshop.

“I came away [from the workshop] even more convinced than ever that the concepts of  religious freedom and religious non-discrimination need to be distinguished  clearly,” he said. He added that the workshop demonstrated a further “need to explore manageable doctrinal standards for uncovering pretextual discrimination by the state.” He believes it is possible for there to be intent in indirect discrimination cases, and whether or not someone pursues legal action on the basis of direct or indirect discrimination or religious freedom or freedom from discrimination on the basis of religion is largely a matter of legal strategy.

Khaitan, who spoke about how difficult it is for courts to assess religious discrimination when individual belief systems and practices are so personal, also identified algorithmic discrimination and implicit bias as emerging interests in discrimination law more broadly.

Many participants agreed that the issue of indirect discrimination required further parsing. Reflecting on the group’s discussion on the French law banning full-face coverings, for instance, Neuman noted that human rights bodies confront a dilemma when states make sophisticated efforts to conceal discriminatory motives.

“Even the Human Rights Committee, which took the step of finding the law discriminatory, avoided clear description of the violation as resting on intentional discrimination or indirect discrimination,” he said.

“There are still unanswered questions about how best to analyze laws that unintentionally restrict a practice favored by a small subset within a minority religion, whether by treating them as limiting the religious freedom of the relevant believers, or by examining them as possible instances of discrimination,” Neuman said.

Next fall, Neuman plans to convene a workshop on indirect discrimination and sexual orientation and gender identity.

What’s in a name? Juxtaposing Indirect Discrimination and Reasonable Accommodation on the basis of Religion in the European Workplace

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Gatt Law: Importance of Non-Discrimination Essay

Introduction, most-favoured-nation (mfn), national treatment obligation.

When trade law was proposed after the World War II, it was considered as the latest agreement to be negotiated under the General Agreement on Tariffs and Trade (GATT) and was thus a new agreement having a pronounced effect on the global economy other than NAFTA. After getting approved from Bretton Woods Conference, GATT introduced trade as a means for recovering economy on a large scale. The main purpose behind negotiating the ITO was to acquire the initial tariff reductions. However the ITO failure in 1950 induced the idea of barriers reduction in international trade, thereby leaving behind the GATT agreement. The GATT agreement later took the form of a series of agreements which identified GATT as a treaty, not an organisation. In 1990s WTO get hold of GATT functions.

The Uruguay Round is the eighth broad trade negotiation round under the sponsorship of the GATT, which is the most extensive step undertaken by the GATT system and possibly by any similar endeavour in history (Collins & Bosworth, 1994, p. 63). Thus GATT serve as the basic rules for following International trade in goods among WTO members by a series of additional agreements negotiated in successive rounds of GATT negotiations (Condon, 2002, p. 22).

WTO when came into existence on 1 January 1995 declared charter entirely institutional and procedural and draw upon the GATT and its Uruguay Round resolutions in its Annexes for compliance. The WTO Agreement not being a mere replacement of the GATT under the Uruguay Round of GATT Trade negotiations introduced a mundane institutional framework in order to conduct various trade relations among its members 1 . According to Rao (2000), WTO not only presented GATT with a new form but also modified many of its birth defects (Rao, 2000, p. 75) 2 .

Trade Policies and WTO Agreement – The Principles

As of the early 1990s, a well-oiled GATT machine existed, allowing contracting parties to manage developments in the trading system, including a capacity for surveillance of trade policies and assisting conflict resolution through consultations, negotiations, mediation, and dispute settlement (Hoekman & Kostecki, 1995, p. 13). The GATT while regulating the use of trade policies by WTO members does not indicate about the concern that whether governments should use domestic policies or trade policies to achieve particular objectives. That means the efficiency issue is not addressed directly due to the premise that is set about inefficient instruments such as trade policy must be accepted, and that the best that can be achieved is to discipline the use of different types of trade policies. Thus, it provides opportunity to the countries to use free trade policies while encouraging them to utilise the least trade-distorting measures (Hoekman & Kostecki, 2001, p. 145). According to Bossche (2005) “Liberal international trade policies have a firm institutional basis in the multilateral trading system of the WTO” (Bossche, 2005, p. 6).

Trade in services is a wide and important area to which multilateral trading system was extended during the Uruguay Round and was expected to provide the same advantages to developing countries as the rule-based multilateral trading system in merchandise trade. A number of areas of export interest to developing economies have already been committed to liberalisation by major importing industrial economies, although according to a Services Council report there is a long way to go (Das, 2001, p. 61). In addition, GATS was unique in that it allowed WTO members, including developing country members, to negotiate the conditions under which Foreign Service suppliers may establish themselves in the importing countries. The terms and conditions to this effect are bound in the schedules of the members concerned.

The WTO agreements fulfil the standards of TBT (Agreement on Technical Barriers to Trade) and the agreement on SPS (Sanitary and Phytosanitary Measures) 3 . This way the TBT and SPS Agreements seek to strike a balance in order to avoid unnecessary trade restrictions while recognising the sovereign rights of Governments to adopt whatever standards are appropriate to fulfil legitimate objectives (Sampson, 2005, p. 115). The legal texts that regulate everyday activities are basically composed of a number of simple, fundamental principles that run throughout all of these documents. These principles serve as the vital components of what we call as the ‘multilateral trading system’.

The principles of non-discrimination that are the cornerstone of multilateral trading system are:

• Most-favoured-nation (MFN) clause – Equal treatment to all 4
• National Treatment obligation – Equal treatment to foreigners and locals 5

The non-discrimination factor of GATT law provided opportunity to the developing nations in the form of TRIPS Agreement by offering potential benefits for developing countries by creating a framework conducive to technology transfer and foreign direct investment (Das, 2001, p. 61). The non discriminating principles of MFN and national treatment belong actually to the TRIPS Agreement. Expansion of the coverage of the multilateral trading system to new areas has made the post-Uruguay Round system more meaningful to the developing economies, this is not to deny that implementation of some of the agreements is difficult. Although many developing economies were not able to take advantage of some of the improved market access opportunities immediately, they were expected to do so in the future as their domestic supply capacities increased. However, tightened discipline and wider coverage prove to be effective and beneficial only if an efficient means of dispute settlement supports the system (Das, 2001, p. 61)

The MFN principle is the treatment which fulfils the first article of the GATT while being the topmost priority in the General Agreement on Trade in Services (GATT) 6 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 7 . The MFN ensures ‘equal treatment to all’ and does not allow any discrimination on the basis of trading partners within WTO members (WTO, 2008a).

MFN Treatment implies with all the custom duties, charges and formalities that are covered under the MFN and is qualified to be granted by any member irrespective of product origination or destination for any other country must be accorded to the like product for all other WTO members. The same criteria applies equally to exports and imports while not discriminating between like products on the basis of their origin or destination (Sampson, 2005, p. 80).

This feature of non-discrimination was sought to be maintained by all the contracting parties of the GATT, with a few exceptions to incorporate special needs for budget balancing in some of the developing countries, protection of infant industries for a few years, and protection of health of humans, plants and animals. Despite a few cases of use of these escape clauses, the MFN constituted the backbone of the entire multilateral trade negotiation processes for all these years. Bagwell and Staiger (1999) offered essentially a static analytical framework to interpret the fundamental principles of GATT: reciprocity and non-discrimination. These principles were seen as complementary in generating efficient multilateral trade operations and do not support the reasoning to extend and include any consideration of environmental externalities, however (Rao, 2000, p. 18).

In the beginning, the opposition to trade agreements was confined to agreements with developing nations, where stark differentials in social and environmental agreements could much more easily be highlighted than in abstract discussions of multilateral trade principles such as MFN treatment. Trade instruments were perceived as leverage to pressurize developing countries so as to comply with US domestic conceptions of what international social and environmental regulations should be. Soon, however, the new groupings started considering the trade liberalisation, claiming that it would undermine American social or environmental standards or, in the more right-wing terms, US sovereignty. In the process, these groups could appeal to a diffuse feeling that was the legacy of the recession of the early 1990s and the ongoing trend of corporate restructuring. Trade liberalisation could increasingly be cited as the source of social ills, from declining living standards and wage inequality to job losses. MFN treatment negated the entire Globalisation backlash that initiated from the USA to other parts of the world while increasingly linking to trade liberalisation, and multinational corporations as the main culprits. From this perspective, MFN enabled the trade policy to transform into a sort of social work, or a palliative for grievances that could not be dealt with domestically. The effect of these groups was to make any type of trade liberalisation suspect, including multilateral market opening and its domestic policy mechanism such as fast-track authority (Deutsch & Speyer, 2001, p. 23).

Non-discriminatory treatment is best evidenced by the NT obligation which demands that imported and domestic products are treated alike. National Treatment enables import and local production of goods to be treated equally particularly after the situations when the foreign goods enter the market. The same is applicable to foreign and domestic services as well as trademarks, copyrights and patents. This principle of treating local and national products equally is common in all the three WTO Agreements 8

GATT members while keeping the principle of National Treatment ahead, speak of concessions when ‘granting’ market access to foreign exporters, demand ‘reciprocity’ and ‘compensatory’ access to the foreign country’s market. Equipped and assisted by the principles like MFN and National Treatment, the success of the GATT in reducing MFN tariffs is easy to understand where countries interested in market access in a foreign country approaches it and offer concessions in return. It is the MFN principle that allows concessions that are made and extended to all GATT members, after which reciprocity calls for compensating concessions from all ‘benefiting’ countries. Sander & Inotai (1996) comment that “MFN and reciprocity thus work as accelerators of multilateral trade liberalisation, while backsliding is prevented by binding the lowered (average) MFN tariffs” (Sander & Inotai, 1996, p. 41).

National Treatment suggests another way to intensify trade between the industrialised countries via the liberalisation of public procurement. “National Treatment” being the main relevant instrument acted as a code while concerning and binding on all signatory states. This principle was developed while considering the growing importance of trade in services for growth and development of the world economy, the negotiators sought to bring services under multilateral rules and disciplines and create a framework for continuing trade liberalisation.

National treatment unconditionally applies through GATT that by playing its role does not ensure that trade liberalisation does not compensate by countries by imposing some domestic taxes and similar measures but by requiring that foreign products be treated no less favourably than identical domestic products, it becomes much more difficult for a contracting party to prevent foreign products from competing with domestic ones. Therefore the effect which is given to foreign suppliers and domestic buyers ensure confidence for the regulatory environment in which they must operate. This in turn facilitates the dispute settlement procedures regarding organisation of production, planning, and so forth. This way the national treatment principle uphold the onus in invoking the dispute-settlement cases brought to the GATT which is a very wide-ranging rule. The obligation applies whether or not a specific tariff commitment was made, and covers taxes and non-tax policies: all policies must be applied in a non-discriminatory fashion to similar (competing) domestic and foreign products.

Even at the formation of the GATT, the most obvious challenge arise from it was found that 11 of the 23 original signatories were developing countries. However, despite contributing fairly towards large proportion of the total membership, which soon grew to a majority position, developing countries maintained a low profile in the GATT. Though the developing countries made many attempts to gain authority of the GATT, they were usually through indirect channels. For instance, developing countries remained successful in pressurizing occasionally on the GATT through the G-77 in the UNCTAD and through majoritarian activities in the General Assembly but the activity of developing countries in other institutions contrasted with their limited participation in the GATT (Narlikar, 2003, p. 35).

Since there was unwillingness on the side of developing countries in active participation of the GATT, therefore every country was entitled to one vote 9 . Such an unwillingness of developing countries to participate in the GATT derived from the free trade ethos espoused by the GATT, which often contradicted the policies of greater protectionism and interventionism in the developing world, especially in the late 1950s and 1960s. At that time the GATT was seen as a poor substitute for the stillborn ITO but unlike the ITO, the original Articles of Agreement made no mention of economic development. Being formed on the basis of equality, GATT avoided distinctions between stronger and weaker parties, and was thereby seen to expose developing countries to unfair competition.

During the earlier GATT rounds only a small proportion of developing country exports were covered by the GATT regime. Therefore, following a strategy of import substitution and ignoring exports did not have a high cost. As high tariffs and other barriers existed in the industrial economies, developing countries paid more attention to getting preferential access to industrial country markets. The “special and differential” treatment clause of the GATT allowed them preferences in the industrial country markets. With the success of various GATT rounds, tariff barriers began to plummet and the lower MFN tariffs were available to all. This reduced the value and attraction of preferential treatment to the developing economies and with the passage of time, as a small number of so-called emerging market economies began to compete successfully with the industrial economies, it became more costly for them to offer special privileges to developing economies.

This shift in the mind set of policy makers in developing economies towards a relatively liberalised trading system was reflected in their attitude to and participation in the Uruguay Round. For the first time, many developing economies abandoned their traditional passive posture and participated actively throughout the round. Many of them became increasingly active as the round evolved. Developing economies were slowly learning the MTN ropes.

During the Uruguay Round, developing economies not only participated in formulating the new rules of the global trading system but also made offers in conventional areas and “new” areas. The first area was trade in manufactures, while the second set included trade in services, trade in agriculture, and Trade Related Aspects of Intellectual Property Rights (TRIPs) and the like. The most significant outcomes of the Uruguay Round resulted in betterment towards agriculture, textiles and apparel that were included in the multilateral trade regime (Das, 2001, p. 9). Agreement to abolish the MFA was seen as having far reaching implications for the developing economies. Besides, food crops in which some developing economies compete directly with industrial ones and of which other developing economies are large-scale importers came back under the normal rules.

Three broad categories of trade-policy instruments can be distinguished: measures that affect quantities, restricting the volume or value of transactions; those that affect prices, involving the imposition of a monetary fee (tax) on foreign suppliers or have an equivalent effect; and those that may indirectly affect quantities and/or prices (Hoekman & Kostecki, 1995, p. 11).

Dispute settlement enables a country to notice and consider those actions that are when taken by another government possess the effect of invalidating or impairing a concession (that is, the market-access commitments implied by the tariff bindings and safeguarded by the various rules and disciplines of the GATT), it may bring this to the attention of the government involved and ask that the action be offset. If satisfaction is not obtained this way, the country possesses the right to invoke the WTO’s dispute-settlement procedure. Since GATT and WTO serve as inter-governmental agreements, therefore private parties do not have legal eminence before the WTO’s dispute-settlement body. For the private sector handling disputes means to go through its government along with concerning that in the EU and US domestic legal orders, the GATT is not a self-executing treaty, which means that private parties cannot invoke GATT disciplines in domestic litigation either 10 . Dispute settlement procedures provide its members an incentive to raise disputes in the WTO, rather than seeking redress through unilateral retaliation. Such procedures are beneficial particularly for small countries as recourse to a multilateral body will frequently be their only option, as unilateral actions will not be effective and thus not be credible. However large or developed countries have as great a stake in the functioning of the regime, as in many instances disputes will involve other large trading nations. Moreover, for an export firm what counts is market access, independent of whether it is located in a small or large country, and the WTO helps guarantee that access (Hoekman & Kostecki, 1995, p. 31).

Critics often say that negotiating the rules or the code of conduct has become increasingly difficult over time. Recognising that tariffs were becoming less important as barriers to trade, the agenda of MTNs (New Transatlantic Marketplace) gradually grew to include mostly non-tariff policies. With the creation of the WTO it is likely that future MTNs will increasingly revolve around non-tariff measures and domestic policies that are deemed to have an impact on trade. The influence free trade has on the economic market has created an interface between trade policy and economic policy that is increasingly getting blurred, however agreeing on the elimination or reduction of NTMs is more difficult than negotiating downward the levels of tariffs.

One reason for such uncertainty refers to the less obvious condition that specific NTMs are detrimental to a country’s welfare. For example, it is easier to legally bind oneself into social milieu but difficult to assess attitudes towards environmental quality or product safety that differs across countries. In so far as this is reflected in differences in environmental or product standards, it may have a negative impact on trade. Alternatively, a country may seek to offset a market failure with a targeted subsidy programme. Economic theory suggests that under certain conditions subsidies will be the most efficient method of dealing with such problems, even if a side-effect of the subsidy is that it reduces imports. The implication is that negotiations on such issues may be zero-sum games (some countries may lose), in contrast to tariff reductions, which are positive-sum (all countries gain, even though certain groups in each country will lose unless they are compensated) (Hoekman & Kostecki, 1995, p. 33). Another problem, again in contrast to tariffs, is that it can be difficult to reduce the trade-restricting impact of NTMs incrementally.

For many NTMs, MFT and National treatment obligations are feasible to agree to the basic principles of transparency to seek to adopt dispute resolution procedures however; others experience pressures for the harmonisation of policies that are mounting. Although the GATT long before denied seeking traditional attempts to agree on common policies, differences in non-trade policies regarding the environment, labour standards, or anti-trust as they increasingly lead to claims that these result in unfair competition and should be countervailed. But still it is a key challenge for WTO Members going into the next millennium to deal with these pressures.

Bossche Peter Van den, (2005) The Law and Policy of the World Trade Organization: Text, Cases and materials , the Edinburgh Building Cambridge.

Collins M. Susan & Bosworth P. Barry, (1994) The New GATT: Implications for the United States : Brookings Institution: Washington, DC.

Condon J. Bradly, (2002) NAFTA, WTO, and Global Business Strategy: How Aids, Trade, and Terrorism Affect Our Economic Future : Quorum Books: Westport, CT.

Deutsch Klaus Gunter & Speyer Bernhard, (2001) The World Trade Organization Millennium Round: Freer Trade in the Twenty-First Century : Routledge: London.

Hoekman M. Bernard & Kostecki M. Michel, (2001) The Political Economy of the World Trading System: The WTO and Beyond : Oxford University Press: Oxford.

Hoekman M. Bernard & Kostecki M. Michel, (1995) The Political Economy of the World Trading System: From GATT to WTO : Oxford University Press: Oxford.

Narlikar Amrita, (2003) International Trade and Developing Countries: Bargaining Coalitions in the GATT & WTO : Routledge: London.

Rao P. K. (2000) The World Trade Organization and the Environment : St. Martin’s Press: London.

Sampson P. Gary, (2005) The WTO and Sustainable Development : United Nations University Press: Tokyo.

Sander Harald & Inotai Andras, (1996) World Trade after the Uruguay Round: Prospects and Policy Options for the Twenty-First Century : Routledge: London.

WTO, 2008a.

• Article II of the Agreement.
• The WTO Charter XVI.1 states clearly that GATT’s decisions, procedures and customary practices are guiding principles to the extent feasible.
• The Sanitary and Phytosanitary Agreement emerged from the Uruguay Round with an objective to flesh out Article XX (b) in order to establish some basic principles for the adoption and maintenance of SPS measures.
• Article I of the GATT (1994).
• Article III.
• Article II.
• Article IV.
• Article III of GATT, Article XVII of GATS and Article III of TRIPS.
• WTO favoured this provision through Article IX:1 of the Agreement Establishing the WTO and allows developing countries the possibility of commanding a wide majority in GATT decision-making processes, irrespective of their small share in world trade.
• Multilateral agreements must be translated into domestic law through implementing legislation.
• Chicago (A-D)
• Chicago (N-B)

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English with a Non-Native Accent as a Basis for Stigma and Discrimination in the US

This is an excerpt from Dignity in Movement: Borders, Bodies and Rights . Get your free download from E-International Relations .

Although it is hard to argue that there is now awareness about, and protection against all kinds of discriminatory practices, some forms of discrimination have become more easily identified, and there are currently more widespread institutional protections against them. In many different country contexts, there are increasingly more recognized definitions of discrimination based on, for instance, class, gender or race. However, discrimination based on non-native accent is not one of those widely accepted categories of discrimination. In fact, accent is considered something that a person can change almost effortlessly if s/he has the will to do so, and thus, it is seen as different from other characteristics, such as race or gender, which admittedly cannot be changed. According to this rationale, the fact that you speak another language with an accent signals incompetence and lack of effort. If you are not changing, an aspect about you (accented speech) that you are capable of changing, differential treatment against you cannot be discrimination, the logic goes. Therefore, it gives employers, public officials, teachers and native speakers reason to treat you differently from those who speak ‘without an accent’.

Accent refers to the phonological characteristics of speech. In that sense, everyone has an accent (Matsuda 1991). There are accents that are geographically or class-determined, and other accents are caused by the transfer of the phonological features of the native language to a second language. This second one is called an L2 accent (Derwing et al. 2014, 65), while L1 accent refers to the native variety of a language. This paper is about the non-native accent or L2 accent, which is an issue that has so far been especially discussed by linguists and researchers of education. While this chapter benefits from the contributions of these two groups of researchers on the subject, it mainly aims to make a sociological contribution to debates on accent by focusing on discrimination based on non-native accent. Although discrimination has been a well-researched sociological subject in general, it has especially been studied with reference to such categories as class, race and gender. Discrimination based on non-native accent remains a largely under-researched area for sociologists.

This chapter will start with a linguistic discussion on accent and non-native/L2 accent, and will then tie these discussions to a more sociological debate on how non-native accent can be a basis for stigma, how people make judgements about others based on non-native accent and what non-native accent discrimination implies especially in the context of the United States. The following section will first give information about the empirical research, where we conducted semi-structured interviews with 40 highly skilled Turkish migrants who left Turkey as adults with at least undergraduate degrees to have further degrees or professional careers in the US and returned back to Turkey after living in the US for at least five years. In this section, there will also be a discussion of the experiences of our respondents as non-native speakers of English during their stay in the US. This section will emphasize that, although they had left Turkey with certified proficiency in English, their everyday life in the US was largely shaped by the fact that they had non-native accents. Although the respondents did not name their difficulties related to accent as discrimination, depending on their accounts, I argue that their non-native accent functioned as a marker of their foreignness and became a basis for negative differential treatment in different spheres of life in the US. In the conclusion, I discuss the ways non-native accent can become a basis for discrimination in the context of the US and why migrants who experience discriminatory treatment do not call it discrimination.

Stigma and Discrimination Based on Non-Native/ L2 Accent

Lipi-Green (2011) argues that, like any other group of scholars, linguists do not form a homogeneous club; there are several differences of opinion among them. However, there are also certain points about which all linguists agree. She identifies five linguistic facts of life , where, she argues, most linguists would come together (Lipi-Green 2011 6–7).

• All spoken language changes over time.
• All spoken languages are equal in terms of linguistic potential.
• Grammaticality and communicative effectiveness are distinct and independent issues.
• Written language and spoken language are historically, structurally and functionally fundamentally different creatures.
• Variation is intrinsic to all spoken language at every level, and much of that variation serves an emblematic purpose.

By stating the last point, Lipi-Green (2011, 20) points out the fact that spoken language varies for every speaker. If the language in question is English, this is ‘true even for those who believe themselves to speak an educated, elevated, supra-regional English’ (Lipi-Green 2011, 20–21). There are three major sources of variation in spoken language: language internal pressures, external influences on language and variation arising from language as a creative vehicle on free expression (Lipi-Green 2011, 21). Considering the variation in spoken language, she talks about standard language and non-accent as myths, reminding readers that ‘myths are used to justify social order, and to encourage or coerce consensual participation in that order’ (Lipi-Green 2011, 44). Following this line of argument, it will be appropriate to approach the notion of non-accent as a myth that justifies existing hierarchies between the individuals who have the ‘right’ accent and those who do not.

Goffman (1963, 12), in his classic work, defines stigma as ‘an attribute that is deeply discrediting’. However, after giving this definition, he also emphasizes that we need a language of relationships, not a language of attributes while we are talking about stigma. It means that there may be certain attributes that will be discrediting in one context, while confirming the usualness in another context. In that sense, it may be more appropriate to think of stigma as ‘a special kind of relationship between attribute and stereotype’ (Goffman 1963,13). He discusses three different types of stigma based on various physical deformities, character traits and race, nation and religion, commonly interpreted as group identity (Goffman 1963, 13). The person who has a stigma possesses an undesired differentness from what others expect, and those others who conform to expectations are ‘normals’, as Goffman (1963, 14) identifies them. These ‘normals’ then exercise various types of discrimination against those with stigma and reduce their life chances (Goffman 1963, 15).

According to this framework, can non-native accent function as a basis for stigma?  Being an indicator that one was born and raised in another country, non-native accent can be a basis for the third type of stigma that Goffman discusses. ‘Normals’ are the ones who speak the language with native accents, while those who have non-native accents are stigmatized. Although everybody has an accent and not having an accent is a myth, people use accent to make judgements about others, both in their official capacities and in everyday life encounters. In everyday usage, people say ‘a person has an accent’ to point out the difference from an assumed norm of non-accent, as if only foreigners have accent (Matsuda 1991). A non-native accent is one of the most noticeable characteristics of those individuals who are originally from other countries, and marks and potentially stigmatizes them as not being native born (Gluszek and Dovidio 2010). 

Research shows that native speakers/listeners are highly sensitive to the presence of foreign accents (Atagi and Bent 2017; Derwing and Munro 2009). Accent is certainly not the only factor that people use to evaluate others. There are many other categories, such as gender, skin color, other physical features, etc. However, as Derwing et al. (2014, 66) emphasize, society has become more aware of prejudices based on these categories and is more prepared to guard vulnerable groups against them compared to accent prejudices. Especially regarding the US context, researchers argue that following increasingly tighter anti-discrimination laws in the US, more subtle ways for exclusion have been created, and language and accent have become an acceptable excuse to discriminate (Gluszek and Dovidio 2010). As Zuidema (2005, 666) argues, linguistic prejudice is an ‘acceptable’ American prejudice; assumptions are made about the others’ intelligence, competence, morality, etc. based on how they speak. Teachers, employers and landlords assume that a person whose first language is English might be a better student, employee or tenant than another person who speaks English with a non-native accent. Accordingly, these assumptions do not remain inconsequential thoughts, but turn into active discrimination.

As Lipi-Green (2011, 67) states,

When an individual is asked to reject their own language, we are asking them to drop allegiances to the people and places that define them. We do not, cannot under our laws, ask a person to change the color of her skin, her religion, her gender, her sexual identity, but we regularly demand of people that they suppress or deny the most effective way they have of situating themselves socially in the world.

In other words, native speakers very often demand too easily that foreigners shift from their own language to another one, ignoring the complex and deeply rooted meanings of native language for individuals. In addition to discussing the desirability of an immediate language and accent shift, we can also question how doable it is. Researchers often refer to a critical period for second language acquisition (Vanhove, 2013). According to the critical period hypothesis, there is a critical period for attainment of second language and, beyond the critical period, people cannot achieve native-like competence in their second language. [1] Researchers argue that there is enough evidence to support the argument that there is an age-based limitation on the attainment of proficiency in a second language (Patkowski 1990). Therefore, if we consider the widely accepted notion that learning a second language after early childhood almost inevitably leads to non-native accent and speech that is different from the speech of native speakers (Tahta et al. 1981; Scovel 1988; Flege et al. 1995; Munro et al. 2006), expecting people to drop their L2 accent is almost like expecting them to change the color of their skin. It is unrealistic to expect a person who learned English as an adult to speak like a native speaker of English (Ingram 2009). However, it is rarely recognized as such, and differential treatment based on L2 accent is not considered as discrimination by many. As Akomolafe (2013) argues, of the major types of discrimination, accent discrimination is the one that gets the least attention.

Munro (2003) discusses the probable reasons behind negative reactions to foreign accents. The first possibility he discusses is accent stereotyping , where one’s prejudice against a certain group is triggered when that person hears speech patterns associated with that group. The second possibility is that some people find accented speech unintelligible or difficult to comprehend. While he evaluates this second argument, he stresses that there is, in fact, no reason to think that accented language is typically difficult to understand, since ‘an objection to accents on the grounds that they are unintelligible may sometimes have more to do with an unwillingness to accommodate differences in one’s interlocutors than with a genuine concern about comprehension’ (Munro 2003, 40). Munro (2003) looks at human rights cases that involve language-related issues in Canada and argues that, in most of those cases, the notion of accent was crucial. In his study, he identifies three types of accent discrimination: discrimination in hiring decisions, discrimination in employment and tenancy and harassment based on accented speech (Munro 2003).

What forms can non-native accent discrimination take in the context of the US? In the US, a person’s intellectual ability is often evaluated based on his/her ability to speak ‘standard English’, and people who speak with foreign accents can be subject to negative evaluation and discrimination (Ingram 2009).  Nguyen (1993), with reference to the US context, also argues that employers use claims of ‘unintelligible English’ to not hire accented but qualified applicants. She also reminds the fact that courts have recognized how discrimination against accent may function as the equivalent of discrimination against national origin, a violation of Title VII of the Civil Rights Act of 1964 (Nguyen 1993, 1327). Some studies focus on the effects of non-native accents on employment-related decisions in the US (Hosoda and Romero 2010; Deprez-Sims and Morris 2010), which demonstrate that accent can have an impact on evaluations of an applicant’s suitability for a job. What do we know about the extent of accent-focused discrimination in the US? Lippi-Green (1997, 153) mentions a statistical study of a stratified random sample of employers nationwide where 10 percent of the sample, or 461,000 companies, that employ millions of people openly disclosed that they ‘discriminated on the basis of a person’s foreign appearance or accent’. Although there is a need for further large-scale studies on the subject, this gives an idea about the extent of accent discrimination in the US.

Some researchers also argue that there is differential accent discrimination in the US (Holmes 1992; Quinn and Petrick 1993). This means that, in the evaluation of the accent, speaker’s non-native status is not the only applicable issue; perceptions about the speaker’s particular group or nationality can also be pertinent (Lindemann 2003). While the stigmatized identifier of using ‘broken’ English is used for non-native accents, this category may not necessarily apply to Western European accents (Lindemann 2005). Some non-native accents are considered high-status, whereas others are regarded as low-status. Low-status accents are usually thought of as difficult to comprehend and signaling incompetence, while high-status accents are evaluated as easy to understand and indicative of competence (Quinn and Petrick 1993; Matsuda 1991; Goto 2008). In the context of the US, a person with a high-status British accent will be regarded as well educated and upper class (Quinn and Petrick 1993) while French accents will be considered ‘cute’ (Lippi-Green 1997). In contrast, Hispanic, African and Eastern European accents will be considered negatively (Valles 2015). Individuals who speak English with a low-status foreign accent are more prone to accent discrimination (Akomolafe 2013; Valles 2015).

Turkish Highly-Skilled Migrants in the US

This chapter highlights some findings of a broader research project about return migration of highly skilled Turkish migrants who lived in either the US or Germany, and then returned back to Turkey. In a previous paper (Yilmaz 2019), I discussed the findings of this research project with respect to discrimination perceptions of these two groups of returnees. According to these findings, returnees from Germany thought they experienced ethnic discrimination, and discrimination was a major reason behind their return, while returnees from the US did not mention discrimination, and discrimination was not a reason for return for them. To explain the difference between these two contexts, I used Alba’s (2005) distinction between bright and blurry boundaries. I described Germany as a context that has bright ethnic boundaries for Turkish migrants even when we focus on a highly skilled group, whereas the US had blurry ethnic boundaries for this group. Many of the highly skilled Turkish migrants who lived in the US argued that they faced difficulties because of the fact that they speak English with a foreign accent. However, they did not consider those difficulties as discrimination.

In this chapter, I focus on interviews with the respondents who lived in the US and, contrary to what they claimed, I argue that what they experienced can in fact be considered accent discrimination. By analyzing their responses to questions not only about language and accent, but also about their experiences in the US, I aim to demonstrate how and why the instances that they described as the challenges of being a foreigner can be thought of as examples of accent discrimination. In parallel with the previous discussion of the literature on accent discrimination, I argue that the reason they do not think of these negative experiences as discrimination has to do with the fact that negative differential treatment based on foreign accent is rarely recognized as discrimination. Although they shared their negative experiences related to foreign accent as events that made their life more difficult and made them unhappy, they either blamed themselves individually for those experiences, as they were ‘unsuccessful’ in dropping their accent, or they thought of it as a part of the ‘inevitable burden’ attached to being a foreigner.

As mentioned previously, this research concerns highly skilled migrants. We interviewed people who emigrated from Turkey with at least an undergraduate degree (in three cases as university exchange students), had further degrees and/or professional experience in the host country and stayed there for at least five years and then returned back to Turkey. We conducted the interviews in Turkey after their return. Most of the interviews were conducted face-to-face, although in a few cases, they were conducted on Skype. They were semi-structured, in-depth interviews in Turkish, which lasted 1.5 hours on average. The interviews were recorded, transcribed and translated into English by the author. We interviewed 40 returnees from the US. (We also interviewed 40 returnees from Germany. However, this chapter only focuses on the returnees from the US.) Our respondents were all over 20 years old at the time of their migration. The majority completed their secondary and high school education at institutions where the language of instruction was English, including private schools or competitive public schools, which accept students based on central, countrywide examinations. They also completed their university education at prestigious public or private universities, which instruct in English.

Although, in many cases, interviewees demonstrated their proficiency in written English, through their Test of English as a Foreign Language (TOEFL), Graduate Record Examinations (GRE) or Graduate Management Admission Test (GMAT) scores, they had all learned English after early childhood or after the critical period , and most had few experiences speaking English in daily life before migrating. In general, they had few international experiences before migrating. Consequently, most interviewees expressed difficulties speaking English, especially during their first years in the US. Rather than the academic language with which they were familiar thanks to their education in Turkey, they found the language of everyday life more challenging during this initial period. Below are three responses about the challenge of using English in everyday life during the initial stage.

My English was good. I received my education at Kadikoy Anadolu Lisesi [2] and Bogazici University [3] afterwards… I was pretty good at writing and reading, but I was not that good at speaking. During the first two years, I can say, I had some problems related to speaking. In terms of both expressing myself and also making myself understood by others… It was challenging for me because we were not practicing English in Turkey. Especially after the first three years, I started feeling more confident… I had never gone abroad before this experience. My business English was good. But to be more fluent in the language of everyday life, you need to know those simple words… Like tweezers… It was a word that I had never used in English previously. After living there, you learn the name for it when you need to buy tweezers. Do you know when I realized that I became fluent in English? The TV was on in the living room and I was cooking in the kitchen. But I could follow the conversations on TV easily, as if they were in Turkish.  Before going to the US, the level of my English was in fact advanced. I had an internet-based TOEFL score of 113 out of 120. But, you know, as is common for many Turks, I did not find myself so good when it came to speaking. There were times when I had issues in everyday conversations, especially during the first years. Sometimes because of the idioms that they use, other times because of the accent… But except that, for instance in writing, I did not have problems.

According to the accounts of our interviewees, although it created problems during the first period of their stay, the challenge of becoming familiar with everyday language and becoming fluent in using it was something that they could overcome. It was a problem that they could work on and solve. There was a need to gain more information about the cultural context, but for a person who was open to learning, it was possible to eventually get familiar with new ways of doing things. However, as some of them discussed during the interviews, ‘the problem of accent’ was not something that they could solve. After a while, they realized that how they were perceived when they spoke with a non-native accent was important in terms of positioning them, but they had little control over their accent even if they wanted to change it.

When I first went to the US, there were some very simple idioms or sayings that I did not know. However, I think that was a problem only at the very beginning. In a pretty short period, it is possible to overcome the challenges related to understanding what others are saying. Another dimension is about the pace of your speech. That can also be solved relatively fast. If you have a tendency to speak a lot, or if you are brave enough, you can also solve that quickly. But you cannot solve the problem of accent. You cannot change it. That is, in fact, what it means to be American or to speak like an American… If you speak with the same accent, with the same pace as an American, then you can be accepted… The critical distinction was not about being Turkish or being something else, but it was mostly about whether or not you can have those conversations with the same accent, with the same pace. That is what we cannot do.

This person feels that as a foreigner, he can only feel accepted in the US if he can speak English without a foreign accent. However, he also came to the realization that one cannot change his/her accent easily. In this context, while changing one’s accent or solving the ‘problem of accent’ becomes the condition of being accepted, it is also unachievable. Defined as such, it is easy to see how it can be the source of a lot of frustration. In another example, many years after her return, one interviewee still blamed herself for not having been able to drop her accent. She was still reflecting on what she could have done to ‘solve that problem’.

I had many problems related to my accent, yes… As I had an accent, there was the problem of incomprehensibility. I wish I could have taken some courses… Courses on accent reduction for instance… Maybe it would have been useful for being understood.

The accent came to be understood as the main sign of foreignness. According to these respondents, their foreignness was not necessarily something that others could immediately recognize based on their physical appearance. It became identifiable when they started speaking:

The level of my English was advanced when I went to the US. I knew the language pretty well, I think… In Turkey, I’d had all my classes in English up to the completion of my Master’s degree. [In the US,] I did not find the academic life challenging. However, when it came to the language of everyday life… Even to have a conversation at a restaurant… You need to get used to it. And the biggest challenge about speaking was the accent. When they look at you from the outside, they don’t necessarily understand that you are a foreigner. However, at the moment you open your mouth and say something… You are a foreigner; you have an accent. I didn’t like the fact that I could never be ordinary. It is not like racism or hostility to foreigners but… They lump you in another category. In that sense, after that point, you can never be ordinary. It’s like, in terms of appearance, you are one of them. But when you start speaking, it becomes obvious that you are not one of them.

This quotation is important in many ways. First, it tells us how this respondent perceives the distinctions between ‘us’ and ‘them’ in the context of the US. He thinks that his physical appearance does not necessarily mark him as different from the members of mainstream society. According to his understanding, for American people, the distinction is especially based on whether or not one speaks English with a foreign accent. If we rephrase this using Goffman’s (1963) vocabulary, non-native accent was the aspect that stigmatized them. Accent was what made it impossible for them to be ‘normal’. Once native speakers hear the accent, the person was identified as the Other, which from then on made it impossible to be an ‘ordinary person’; one is put into that other category of ‘the foreigner’.

Respondents who lived in smaller towns or cities, which were less cosmopolitan, talked about having experienced even bigger problems in social life because of speaking English with a foreign accent. As the locals had limited experience interacting with people from other countries, their foreign accent became a significant barrier in everyday communication. However, according to the perception of our respondents, this barrier was not necessarily related to comprehension. Many of them talked about how they could successfully communicate with other international people in English during their stay in the US. They all spoke English as a second (or third or fourth) language, and they all had their different, peculiar accents. However, using English as a medium, they were able to communicate with each other effectively. According to some of our respondents, the problem about communicating with Americans in English was related to the fact that Americans ‘did not want to understand’ people who spoke English with non-native accents. This is in parallel with Munro’s (2003) argument about the intelligibility and comprehensibility of accented speech, which I discussed in the previous sections: The objection to accented speech on the grounds that ‘it is unintelligible seems to have more to do with an unwillingness to accommodate differences’. It seems to have less to do with a genuine concern about comprehension.

Accent was a problem. With international friends, it was not an issue. But with Americans, it was a totally different story… This is the thing about Americans: they see it as their right not to understand you if you are speaking with an accent. They claim that they don’t understand you. This really annoyed me both at the university and also outside. At the university, we were teaching, we were interacting with students. At the end of each semester, I got the same comment on evaluations: ‘He has a very strong accent. We don’t understand people who have accents, why do we have them as instructors’ and such… Always the same kinds of comments… Economics is not like, for instance, philosophy. I don’t need to lecture for hours. I solve problems, and then I explain the solutions with simple terminology. If you catch the terms, you will easily understand. But still, we always used to get the same types of comments.

He believes that in the case of the students who complained about his accent, there was not a sincere interest in communicating or a sincere effort to understand what he was explaining. How the students phrased their comments on the evaluation forms, putting it as ‘he has a strong accent’ also provides a hint that the students saw it as their right to criticize accented English. They mentioned a fact almost as a defect. This respondent was not the only one who got the comment that ‘he has an accent’ on student evaluation forms. As mentioned earlier, many of our respondents went to the US for graduate degrees and worked as teaching assistants, instructors or professors during their studies and afterwards. Depending on their accounts, getting the comment that one has an accent as a criticism from students seems to be a common experience.

Discussion and Conclusion

In this paper, I focused on non-native accent discrimination in the US, a type of discrimination that is not usually considered discrimination by the public and that has been a rather neglected subject in the sociological literature. Benefiting from the works of especially linguists, I argued that the notion of not having an accent is a myth, and for those people who learn a second language after the critical period, it is almost impossible not to have an L2 accent and to speak that language in the same way as a native speaker. Next, depending on Goffman’s (1963) arguments on stigma, I discussed how non-native accent can function as a basis for stigma. Moreover, depending on the literature, I also discussed how non-native accent can be a basis for discrimination, especially in the context of the US. Next, depending on our empirical research with highly skilled Turkish return migrants from the US, I tried to demonstrate what kind of difficulties or problems they had in the US related to speaking English as a second language and speaking it with an L2-accent. Our respondents had certified proficiency in English before their migration. However, having learned English during later years, not when they were kids, and not having spoken it in everyday life before their migration to the US as adults, they did not have native-level fluency and had a non-native accent. Referring to their narratives, I discussed the ways their non-native accent functioned as a marker of their difference, and what kind of problems it created for them.

One important question to ask at this point is whether the problems related to non-native accent narrated by our respondents can be considered examples of discrimination. As Altman (2011) discusses, although there are some disagreements about the definition of discrimination, it is possible to say that ‘discrimination consists of acts, practices or policies that impose a relative disadvantage on persons based on their membership in a salient social group.’ With its emphasis on salience , this definition suggests that groups based on, for instance, race, gender and religion can be potential grounds of discrimination, while groups based on, for instance, ‘length of toe nails’ would not count. Additionally, the definition of discriminatory conduct also indicates that it creates some kind of disadvantage or harm for those at whom it is directed. This disadvantage or harm is determined relative to a comparison group.

According to this definition, I argue that the accent-related problems that our respondents mentioned during the interviews can be considered examples of discrimination, although most respondents did not think of them as discriminatory conduct. Their non-native accent positioned them in this salient social category of the foreigner (or maybe a foreigner with a low-status foreign accent) which put them in a disadvantaged position relative to those who speak with native accents or high-status foreign accents. As highly skilled migrants who left Turkey with at least undergraduate degrees, they were accepted to graduate programs or professional jobs based on both their subject-area competence and certified proficiency in English. However, even after getting used to speaking English in everyday life, they were treated differently relative to the comparison group of native speakers because of an aspect that they cannot in fact change, as the critical period argument suggests. This differential treatment led to disadvantages in their lives. Consequently, the experiences they mentioned count as discrimination based on non-native accent.

How can we explain the fact that our respondents did not name these negative experiences as discrimination? First, like many other people, our respondents did not think that negative differential treatment based on accent would count as discrimination. They were thinking of discrimination as related to more well-known categories, such as race or gender. Additionally, when they noticed that they were assessed or treated negatively because of the kind of accent they had, they blamed themselves for ‘not having been able to’ drop their accent and speak ‘without accent’. Some of them eventually came to the realization that it is not achievable to speak in the same way as a native speaker if one migrates after a certain age. However, they had mixed feelings, and this realization seemed to exist together with self-blame. Furthermore, in general, it is very hard to be sure about or prove discrimination if it does not take the form of direct confrontation, and in many instances, it does not take that form. Therefore, in most other cases, people just ‘have a feeling’ that they are treated negatively. Based on such vague feelings, people hesitate to call those experiences discrimination.

The fact that one is being discriminated against can position that person as a victim, and many people do not prefer to be seen as victims. Consequently, while responding to the questions of a researcher about whether they were discriminated against during their time in the US, they may not necessarily want to reconstruct their past as a painful one and name their experiences as discrimination. I also argue that being highly educated people who are used to perceiving themselves as having a high status, they do not want to situate themselves as having been in a disadvantaged position as migrants in the US, based on their own perception of situations. [4] While considering their negative experiences as ‘problems’ that happened once in a while is easier, naming them as ‘discrimination’ means attributing to them a more structural, permanent nature. Many of our respondents seemed to be unwilling to position themselves as having been exposed to such continuous negative treatment. Further studies that reflect on why migrants (as well as other groups of people) avoid naming differential treatment directed at them as discrimination can help us better understand the dynamics of this phenomenon.

[1] For debates on the critical period hypothesis, see Penfield and Roberts (1959), Lenneberg (1967), Singleton and Lengyel (1995), Birdsong (1999), Scovel (2000), Bailey et al. (2001), Hakuta et al. (2003) and Singleton (2005).

[2] A prestigious public high school in Istanbul that gives education in English. Students are placed at the school according to their scores from a central nationwide exam.

[3] A major research university in Istanbul. It was founded in 1863 as Robert College and was the first American higher education institution founded outside the US.

[4] Although the findings of interviews with the highly skilled returnees from Germany are not discussed in this paper, it is important to stress that the responses of those respondents were strikingly different. Most of them stated that they were discriminated against in several different spheres. When the negative encounters take the form of direct confrontation and one has a large number of such experiences repeatedly, which seems to be the case for Turkish migrants in Germany, the person more readily accepts them as discrimination.

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2024 Ethics Essay Contest winners announced

Claire Martino , a junior from New Berlin, Wis., majoring in applied mathematics and data science, is the winner of the 2024 Ethics Essay Contest for the essay "Artificial Intelligence Could Probably Write This Essay Better than Me."

The second place entry was from Morgan J. Janes , a junior from Rock Island, Ill., majoring in biology, for the essay "The Relevant History and Medical and Ethical Future Viability of Xenotransplantation."

Third place went to Alyssa Scudder , a senior from Lee, Ill., majoring in biology, for the essay "The Ethicality of Gene Alteration in Human Embryos."

Dr. Dan Lee announced the winners on behalf of the board of directors of the Augustana Center for the Study of Ethics, sponsor of the contest. The winner will receive an award of $100, the second-place winner an award of $50, and the third-place winner an award of $25.

Honorable mentions went to Grace Palmer , a senior art and accounting double major from Galesburg, Ill., for the essay "The Ethiopian Coffee Trade: Is Positive Change Brewing?" and Sarah Marrs , a sophomore from Carpentersville, Ill., majoring in political science and women, gender and sexuality studies, for the essay "Dating Apps as an Outlet to Promote Sexual Autonomy among Disabled Individuals: an Intersectional Approach to Change."

The winning essays will be published in Augustana Digital Commons .

The Augustana Center for the Study of Ethics was established to enrich the teaching-learning experiences for students by providing greater opportunities for them to meet and interact with community leaders and to encourage discussions of issues of ethical significance through campus programs and community outreach.

Dr. Lee, whose teaching responsibilities since joining the Augustana faculty in 1974 have included courses in ethics, serves as the center's director.

If you have news, send it to [email protected] ! We love hearing about the achievements of our alumni, students and faculty.

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Ranana Dine Wins Essay Competition

April 8, 2024.

The Divinity School is pleased to share that Ranana Dine , a PhD Candidate in Religious Ethics, has been selected as the 2024 recipient of the Mark and Ruth Luckens Essay Competition in Jewish Thought and Culture for her paper, “Capturing Corpses: The Advent of Photography and Depicting Jewish Death.”

The Jewish Studies Program at the University of Kentucky’s awards the Mark and Ruth Luckens Prize for the best unpublished original essay in Jewish thought and culture that is also suitable for oral presentation to a general audience. Made possible by a generous gift from the late Dr. Mark Luckens, the winner gives a public lecture in connection with the University of Kentucky Jewish Studies program. 

Ms. Dine will give her public lecture on April 16th, 6pm via Zoom.

Dine is also the research coordinator at the University of Chicago’s MacLean Center for Clinical Medical Ethics and the managing editor of Images: A Journal of Jewish Art and Culture ; her scholarship has appeared in multiple journals. Before entering the PhD program, she received an MPhil in theology and medical humanities from the University of Cambridge and a BA in religion and art from Williams College.

Dine’s dissertation focuses on how a visual approach to the corpse and to the memory of loved ones can inform our understanding of our obligations to the dead. 

Her winning paper addresses the significant relation between photography and death since the invention of that technology, and how photography of the dead, within Jewish history, has mostly meant to signify Jewish suffering. “Sadly this has become even more salient in the wake of October 7th,” writes Dine. “Although death photography serves a purpose – it can inform the viewer of something significant and even incite moral outrage and action – we should ask what story these photographs construct and perhaps turn to more complete stories of relationality, community, and care in the face of death.”