External publications

European equality law review 2016/2

The fourth issue of the biannual European equality law review, produced by the European network of legal experts in gender equality and non-discriminatino (EELN) highlights a number of different legal and policy developments from across Europe are raised. As well as European case law updates and key developments at national level in legislation, case law and policy, there are a number of very interesting articles on using anti-discrimination remedies for discrimination speech, implementation of postive action measures for achieving gender equality, merging mandates of equality bodies and national human rights institutions, as well as concepts of sex and gender in EU non-discrimination law and policies.

Using anti-discirmination remedies for discriminatory speech – the Hungarian and Romanian experiences

Written by István Haller (former Equinet board member), Romanița Iordache, and András Kádár, this article looks at how the recent resurgence of hatred in Europe has been met with new legal and institutional tools tackling hate speech. The criminalisation of hate speech raises concerns regarding the need to ensure a proper balance between protecting freedom of expression and the principle of equality and nondiscrimination and generates heated debates inside and outside the courts. Partly in response to such concerns, but also with the aim of securing adequate and timely remedies, courts and national equality bodies across Europe are also increasingly using administrative and civil provisions to sanction discriminatory speech. There is no universally recognised definition of hate speech. Similarly, there is no specific definition and there are no clear guidelines on what amounts to discriminatory speech and what is an adequate way to sanction it. The overlapping between the two concepts is challenging for victims, practitioners and academics alike. This article analyses legal practice in Hungary and Romania, with the aim of understanding the impact of this approach and its challenges.

Implementation of positive action measures for achieving gender equality in the FYR of Macedonia, Montenegro and Serbia

This paper analyses the legal basis for the adoption of positive action measures in the FYR of Macedonia, Montenegro and Serbia, as well as their implementation in practice. It also presents the existing case law which gives some further guidelines on positive action measures and how they are understood or misunderstood in some of these countries. The paper is divided into three sections:

  1. section 1 deals with the legal basis for adopting positive action measures;
  2. section 2 deals with their implementation in three areas, namely political life, employment and representation of women on company boards;
  3. and section 3 deals with the relevant case law that casts light on the application of positive action measures in Serbia.

This paper does not discuss the implementation of positive action measures in relation to access to and supply of goods and services.

Merging mandates of equality bodies and national human rights institutions – a growing trend

A period of growth in the numbers of equality bodies and national human rights institutions across the European Union has come to a close. Member States over the past two decades had invested in establishing a diversity of statutory bodies to deal with issues of human rights and equality. As the economic and financial crisis took hold, the public sector came under increased scrutiny and its scope, resources and role began to diminish. Equality bodies and national human rights institutions have not been immune to this reality.

The growing trend is now one of merger. The mandates of equality bodies and national human rights institutions increasingly come under the responsibility of a single body, either through merger or the addition of new functions to an existing body. This has happened most recently in Ireland, Britain, and the Netherlands. In the past this had happened in Denmark and Poland. Poland represented a particular trend that is evident in some Balkan and Eastern European countries where Ombudsman offices, with human rights functions, were accorded new responsibilities arising on foot of transposition of the EU equal treatment Directives. A similar, more recent, approach is evident in France with the incorporation of the existing equality body into an Ombudsman’s office. Another approach is evident in the current Belgian proposal to bring two equality bodies under the umbrella of a human rights body.

Written by the Equinet Board expert advisor Niall Crowley, this article sets out an understanding of equality bodies, national human rights institutions and their work to assess the starting point for such mergers. It will explore the different aspirations evident in policy for equality and for human rights to assess the logic informing these mergers. It will look to the limited literature available to examine the experience gained in merged equality and human rights bodies. Finally, it will draw some conclusions, raise the need for innovation, and take a perspective on what could usefully be done to address the issues around such mergers.

Tackling sex discrimination to achieve gender equality? Conception of sex and gender in EU non-discrimination law and policies

This article seeks to present some key insights from sex and gender research and to review the EU’s legal approach to sex discrimination in the light thereof. The introduction of ‘gender’ into equality law discourse represented a great advance in tackling sex discrimination by questioning natural sex differences and highlighting societal processes of creating (doing) gender. Equality between women and men, however, still remains a desirable goal at a great distance which will not be significantly reduced without substantive equality approaches. Moreover, biological sex is no longer what it used to be, and current equality law has to develop approaches to sex discrimination that can also protect persons outside the dominating binary sex model. By perceiving biological sex as diversity and societal constructions of gender as maintaining hierarchies, the author suggests moving on from ‘the equal treatment of men and women’ to a more comprehensive, two-dimensional understanding of sex discrimination.

Download European equality law review 2016/2 here.

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