[ 28.12.2008, Gender Studies, o.p.s Rovné příležitosti > Rovné příležitosti ]

Source/ Taken from: Magazine of ILGA – Europe – Destination Equality

Together we can achieve it!

If adopted, the new EU anti-discrimination directive will not only significantly improve the lives of lesbian, gay and bisexual people in Europe, the proposed directive will also enhance protection against discrimination on the grounds of ethnicity, race, and abilities for people of different genders, ages and ability.

ILGA-Europe has been working side by side with other European networks representing and working for equality for these groups and therefore we want to provide space for the voices of these networks to highlight their assessment and concerns regarding the proposed directive. But most importantly, we want to show that the proposed directive is indeed a major piece of European legislation which is welcomed and needed by millions of people in Europe and, if adopted, will have historical significance.

EUROPEAN NETWORK AGAINST RACISM

New EU anti-discrimination proposal: an opportunity to achieve equal rights for all

► From the European Network Against Racism’s (ENAR) perspective, extending protection against religious discrimination in access to goods and services is particularly important. Discrimination against religious minorities is widespread across the EU. These manifestations reflect an increasing overlap between racial and religious discrimination.

Racism is not limited to discrimination based on the ethnic or racial origin of a person but also on the basis of all aspects of an individual’s or community’s culture or identity, including religion or belief. Thus the lack of comprehensive protection against religious discrimination leads to a lack of protection against racial discrimination as convictions are often used to justify racial discrimination or to obscure racist motivations.

► ENAR welcomes the fact that the new proposal builds on the foundation of the existing protection against discrimination on grounds of racial or ethnic origin. The proposed directive includes within its scope and legal concepts important protections already found in European law for other grounds of discrimination, such as the prohibition on discrimination in housing, health and education.

►Nevertheless, the proposal repeats what ENAR believes to have been the mistakes of the past, including the exclusion of nationality or matters related to immigration. At the time of passing the Race Equality Directive, such a limitation at least had a logical basis, considering how recently the EU had acquired competence in this area. But now that that competence is firmly established and the dialogue has moved to the development of a common European immigration and asylum policy, it is no longer legitimate.

► The proposal also includes blanket exceptions in key areas, notably education. This is a sensitive but important area, where extra care has to be taken to ensure that exceptions achieve their stated goal and do not go further than is necessary. The EU has a vital role in ensuring that the right to education is enjoyed by all children in a non-discriminatory way. The way in which the proposal is currently drafted would mean that if a religious school is the only school in a particular area and it is allowed to refuse all children of a different faith, those children would have no access to education. ENAR agrees that a restriction is legitimate. But that restriction should not be absolute, and must never lead to a child being denied an education.

EUROPEAN WOMEN’S LOBBY

Do not forget women in the fight against discrimination on all grounds

“When the EU adopted in 2004 the directive on gender equality covering only goods and services , our members and women’s organisations, were strongly disappointed by the narrow material scope of the directive, but hoped that this was the first of a series of legal texts prohibiting sex-based discrimination in all areas of life. The absence of any proposal from the EC to level-up European gender equality legislation since then gives us the feeling that the European Commission has forgotten its commitment to ensure real equality for all. The draft directive of June 2008, when adopted will make sex the least protected ground of discrimination in EU legislation. We are wondering for how long it will still be considered normal to discriminate against women in different areas of life including education and media”.

MYRIA VASSILIADOU

EWL Secretary General

The European Women’s Lobby (EWL), which represents thousands of women’s organisations throughout the European Union, welcomes the proposal by the European Commission for a comprehensive anti-discrimination directive that will aim at combating discrimination based on age, disability, sexual orientation and religion or belief.

However, the EWL is very concerned by the unequal protection that sex-based discrimination will be facing in the future in relation to a number of areas including education, despite the commitment made by President Barroso in 2004 to initiate new legislation to ensure protection against all forms of discrimination, including in relation to gender.

EWL also notes that the proposed Directive contains a number of exceptions which are left to decisions by Member States, for example the organisation of school systems (in relation to education), the relationship between state and church, and matters related to marital and family status, including adoption and reproductive rights. There is a risk that reproductive health services are also excluded from the scope of the Directive. These matters must therefore be clarified. The EWL also stresses that the fight against discrimination on the basis of religion should not be used as a pretext to justify violations of women’s rights, be they open, subtle, legal or illegal.

The European Women’s Lobby calls on the European Commission to:

► Commit to a precise calendar to level up and complement the existing European gender equality legislation by 2010 at the latest, in order to ensure that the protection against sex discrimination is on an equal footing with what exists for other forms of discrimination in the EU.

► Address and define multiple discrimination in the new directive in order to ensure an effective level of protection for victims of multiple discrimination, including sex-based discrimination.

► Clarify the implications of the exceptions which are left to decisions by Member States, for example the organisation of school systems (in relation to education), the relationship between state and church, and matters related to marital and family status, including adoption and reproductive rights, and reproductive health services.

► Ensure an effective mainstreaming of gender in the directive.

► Clarify the material scope of Directive 2004/113 on equal treatment between women and men in access to and supply of goods and services in particular with regards to social protection including social security and health care and social advantages.

EUROPEAN DISABILITY FORUM

EDF welcomes:

► The suggestions for the broad scope of the directive in Art. 3 (1), including social protection, social advantages, health care, education, access to and supply of goods and services, the definition of the denial of reasonable accommodation as a specific form of unlawful discrimination Art. 2 (5), the imposition of an anticipatory duty to provide measures to ensure equal access of persons with disabilities to all rights in Art. 4(1) and the introduction of a duty to create an equal treatment body for all grounds in Art. 12.

EDF has the following important concerns:

► In Art. 4 “Equal treatment of persons with disabilities” there is confusion between accessibility, which applies to all people by anticipation, and reasonable accommodation, responding to individual needs. This preempts the application of the article and may challenge existing national laws on accessibility. In addition, the concept of disproportionate burden is very restrictive and should only apply to reasonable accommodation and not to accessibility measures. Neither the concept of ‘Design for All’ nor ‘accessibility’ is defined in the proposal. It does not contain a reference to ‘standards’ that have proved to be very beneficial in making goods and services accessible, available and affordable to people with disabilities. In addition, the proposal for a Directive explicitly exempts Member States from an obligation to introduce fundamental alteration (the concept that is not defined in the Directive!) to social protection, social advantages, healthcare, education or goods and services, even if these are inherently discriminatory and inaccessible to people with disabilities. Therefore Art. 4, which states that the access of persons with disabilities to all of the above shall be provided by anticipation and if it does not cause disproportionate burden, needs complete redrafting.

► The assessment of risk for people with disabilities (usually based on a medical assessment) by financial institutions (Art. 2 Concept of Discrimination – Financial Services) may deprive them of the possibility of getting life insurance, which is often a precondition for owning property or a car.

► Article 3(3) effectively excludes many people with disabilities from protection from discrimination regarding the right to education and the provision of special needs education. This will also have an impact on existing legislation such as racial equality law which does not foresee these exceptions.

THE EUROPEAN OLDER PEOPLE’S PLATFORM

AGE welcomes the proposed EU directive but has some reservations concerning Articles 2.6 and 2.7

AGE welcomes the Commission’s legislative proposal which seeks to eradicate discrimination in access to goods and services, in particular in access to financial products, travel insurance, and healthcare - as these are where age discrimination appears to be most entrenched. The adoption of this proposal would enable a broad approach to be taken to tackling non discrimination in the EU and would create the opportunity to establish a culture of equality and rights which would engage the whole population. AGE members are particularly pleased that age is one of the grounds on which discrimination would be banned, given the extensive evidence of the damaging effects of age discrimination, and they see many advantages in the proposed legislation.

AGE’s reservations

Although AGE considers that significant and welcome steps have been taken in the fight against discrimination within the proposed text, we are concerned that the proposal fails to adequately address the rights of older people to equality and that it gives a free hand to Member States to opt in or out of the legislation with regard to age in the areas most relevant to older people such as access to financial services and health care.

In particular, AGE is concerned that, unless its wording is strengthened, the draft directive will lead to different interpretations by Member States of the exemption clause on preferential treatment contained in Article 2.6. Article 2.7, which allows for differences of treatment on the ground of age in financial products, is also disappointing and means that older people will continue to suffer discrimination in access to financial products. Furthermore, the insurance clause in the Gender Equality Directive in access to goods and services (2004/113/EC) is much stricter then in the new proposal. This discrepancy conveys the message that age equality is not considered to be a priority in the hierarchy of rights.

Case example: age discrimination in breast cancer screening

Our members report pervasive age discrimination and rationing of the health care resources devoted to older people.

For instance, upper age limits are applied in access to free breast cancer screening programmes in several countries resulting in direct discrimination against women above a certain age. In the UK only the group aged 50 to 70 receives reminders. This self-referral system does not deliver and the fact that older women above 70 no longer receive reminders sends the wrong message that they are no longer at risk. This is a clear case of indirect age discrimination whose effect is similar to an explicit age limit.

Case example: age is not a proxy for financial risk

In the Netherlands, one of AGE’s members who wanted to buy a new refrigerator was offered a 10% reduction on the condition that he would agree to sign up for a new credit card. The gentleman, who already held a credit card, first declined the offer but was persuaded by the sales person who pointed out that the customer could simply use it to make the purchase and then destroy the card, thereby obtaining the 10% price reduction. The gentleman finally decided to take up the offer and was asked to complete a form. However, when he was asked to give his date of birth, he was told that he was ineligible to benefit from this special rebate as he was above the retirement age. AGE does not believe that the state retirement age is a relevant criterion in identifying the financial risk of an individual.

EUROPEAN YOUTH FORUM

The European Youth Forum (YFJ) believes that the Proposal for a New Directive implementing the principles of equal opportunities is a crucial step in fighting against discrimination on the ground of age in the European Union.

Indeed, the current European anti-discrimination legal framework has many flaws; in particular it establishes hierarchies among both grounds and areas of life where discrimination takes place. If protection against age discrimination is ensured in the area of employment and occupation, young people are discriminated against in many other areas of life such as education, access to goods and services, health and housing where no legal protection is provided at the EU level.

Since the Proposal for a New Directive provides legal protection in key areas where young people face discrimination, its adoption is really needed to foster legal equality for all young people in Europe.

Statistics clearly show that discrimination on the ground of age is a widespread phenomenon, occurring in all EU countries and in all areas of life. According to a survey carried out in January 2008, 6% of the respondents claimed to have been the victim of discrimination on the ground of age in the previous 12 months, this percentage being the highest when compared to other grounds. More than 16% of respondents perceived that young people are often discriminated against at school because of their age.

Although the new Directive will contribute to bridging some of the existing legal gaps, it alone will not bring solutions to some of the dynamics which maintain discrimination against young people, namely the widespread stereotypes and prejudices about young people, which, for example, lead to discomfort in society when a young person is willing to actively take part in political life. Therefore, non-legal initiatives, including non-formal education and awareness-raising activities will definitely be needed to ensure de facto equality for all young people.

Since it is not being tackled by the Proposal, multiple discrimination will continue to have a strong impact on the lives of young people, especially in areas such as employment, education and health where multiplication and intersection between age and other grounds often occur. For example, the unemployment rate in Britain for young black men is 35% compared to 13% of young white men, and to 5,2% of the entire population.

ILGA – EUROPE

ILGA-Europe welcomes the EU Commission’s proposal for a single anti-discrimination directive, when adopted, will end the hierarchy of rights and protections in the EU.

After having been campaigning for a single anti-discrimination directive for many years, ILGA-Europe welcomes the fact that the scope of the proposed directive is identical to the scope of the EU directives protecting against discrimination on the grounds of race. Currently, discrimination on the ground of race enjoys the highest protection in EU legislation compared to other grounds of discrimination, such as gender, disability, sexual orientation, religion or belief. ILGA-Europe is particularly pleased to see that the proposed directive covers such areas as education. We also welcome the proposal to introduce Equality Bodies in all EU member states which would have a mandate to work on all grounds of discrimination.

At the same time, ILGA-Europe is committed to improving the Commission’s legislative proposal by ensuring that it is fully consistent with the principle of non-discrimination. In particular, ILGA-Europe is concerned with the fact that the proposed directive provides exceptions around marital and family status and reproductive rights. Such exceptions create ambiguity and lead to a lack of clarity, and could be interpreted in a way that would lead to the continuation of less favourable treatment for people on the basis of their sexual orientation in accessing social protection, goods and services. Discrimination and consequent disadvantages experienced by LGB families and their children were particularly highlighted as a serious cause for concern in a report published by the EU Fundamental Rights Agency on 30 June 2008.

In relation to the overall leveling up of protection against all forms of discrimination, ILGA-Europe also calls for a commitment to level up the gender equality legislation at the latest by 2010 to ensure the same legal protection for all grounds of discrimination (currently discrimination on the ground of gender is not prohibited in education) and to include gender identity explicitly in the revised legislation on gender equality.