CHAPTER 1

The terms "equality" and "non-discrimination" address some of the most fundamental concepts in human rights, yet many people use them without thinking about what they really mean. Understanding equality and non-discrimination is essential if they are to be used effectively in human rights advocacy.

In its simplest sense, the word "equality" may be defined as meaning "the same as," "equivalent," "matching," or "identical." When applied to people, however, the term is not intended to mean that all people are identical or exact copies of each other, for that is clearly not the case! In a human rights context, "equality" is used to mean that we are all the same in one fundamental way: regardless of our differences we all possess inherent worth. We are all equally entitled to human rights simply because we are human, and the qualities that make us unique and different should not make us superior or inferior in regard to rights. When put into practice, the principle of equality therefore requires every individual and the societies in which they live to value and accommodate human differences, including - differences based on disability.

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Ch1 Contents
Objectives Getting Started Exercise 1.1 Exercise 1.2 What Does Human Rights Law Say Exercise 1.3 Exercise 1.4 Additional Resources References

A number of different approaches can be taken when thinking about and applying the principle of equality. The first is often referred to as "formal equality," and can occur when laws or policies call for different groups of people to be treated the same, perhaps by saying that they should not be discriminated against. Although such an approach seems logical and it certainly has an important role to play, it is not enough by itself to ensure that people with disabilities or other groups can enjoy true equality. Additional steps may need to be taken in order to account for the different circumstances that people with disabilities face and to address the artificial barriers to their inclusion that have been created by society. For example, calling for people with disabilities to be treated in the same way as other people will not be effective in removing physical, informational, communication, and attitudinal barriers, nor will it help individuals who need differential treatment in the form of specific disability accommodations.

Another approach to equality is what is often referred to as "equality of opportunity." This approach recognizes that people may face limitations in their lives resulting from factors and circumstances entirely outside of their control, such as their race, gender, disability, and social status. These factors alone, and in combination with attitudinal and other barriers, can make it impossible for people with disabilities to live as they wish and contribute to society as they might want. Ensuring equality of opportunity therefore requires specific actions to be taken to move beyond formal equality, and ensure that people with disabilities can enjoy the same opportunities as other people. Such actions might include ensuring accessibility of transportation, combating stereotypes and attitudes that lead to discrimination against people with disabilities, and providing reasonable accommodations in educational, employment, and other contexts.

The third approach can be referred to as "equality in fact," "substantive equality," or "de facto equality." This approach seeks to ensure equality of results and not just equality of opportunity, as just saying that people are "equal" is not usually enough to make them so. In other words, de facto equality sees each person as equally entitled to full enjoyment of their human rights regardless of their actual contributions or capacity to contribute to society.

Although a properly implemented "equality of opportunity" approach is typically sufficient to ensure that most people with disabilities are able to enjoy their human rights as they wish, an additional commitment by the State to "de facto equality" can be of great assistance in ensuring enjoyment of human rights by people with disabilities. For example, ensuring that people with disabilities are not discriminated against by employers may not be enough to ensure that people with disabilities enjoy the right to work if at the same time they are not otherwise qualified for the jobs for which they apply. Thus, to ensure de facto equality in employment settings, it may be necessary for States to provide training opportunities for people with disabilities so that they can more readily compete against other job applicants.

It is perhaps easier to start thinking about what "non-discrimination" means by first considering the meaning of "discrimination." In its most basic sense to "discriminate" means to "distinguish," to "differentiate," or to "treat differently," and is neither positive nor negative in tone. However, the term takes on a more negative meaning when used to describe how people treat each other. To say that somebody has been "discriminated against" typically means that they have not only been treated differently but also unfairly. This unfair treatment could be blatant such as a law expressly discriminating against people with disabilities, or it could occur in a more subtle manner, such as where a rule is neutral but acts to adversely affect people with disabilities. Such subtle forms of discrimination can be particularly insidious because people may believe that the lack of blatant discrimination makes rules or laws fair, even though their effects are damaging.

These two types of discrimination are sometimes referred to as "direct" and "indirect" discrimination, though the labels are less important than the damage caused by such discrimination and the actions needed to counter it. As will be discussed later, international human rights law prohibits all such discrimination when it is on specific grounds, such as disability, race, sex, national origin, and other specified bases. The principle of "non- discrimination" therefore encompasses the commitment not to engage in such forms of discrimination and to take steps to counter more subtle and indirect forms of discrimination. States must also ensure that they address issues of discrimination regardless of whether the discrimination occurs just between individuals or in a more systemic way, such as through legislation, policies, and regulations.

Perhaps one of the most potentially confusing aspects of non-discrimination is that it does not always prohibit States from treating people differently, and in some cases requires that they do! This is because the principles of non-discrimination and equality interact with each other. For example, the historic and long-term discrimination against people with disabilities as a group has led to people with disabilities not enjoying full equality with other people. In order for this situation to be reversed, States need to undertake actions that are known in different countries and contexts as "specific measures," "affirmative action," "fair discrimination," "reverse discrimination," or "positive discrimination." However they are labelled, the objective of these actions is to achieve equality, and they often do so by treating people with disabilities in a way that accords them some comparative advantage. For example, efforts to encourage businesses to appreciate the value of employees with disabilities and to employ more people with disabilities, may favour people with disabilities over other people. The need for workplace disability accommodations may also lead to employees with disabilities receiving specific treatment that differs from that of other employees. Although such actions effectively treat people differently, they are not considered "discrimination," because the goal is to overcome disadvantages, achieve equality, and promote rather than violate enjoyment of human rights. Indeed, under Article 2 of the Convention on the Rights of Persons with Disabilities, the failure to provide for reasonable accommodation would be considered a form of disability-based discrimination prohibited under the Convention.

The principles of equality and non-discrimination not only interact with each other, they are also fundamentally indivisible, interrelated, and interdependent with all other human rights. For example, if a State passed a law denying people with disabilities the right to work, this would not only constitute a violation of the right to work, but it would also represent an explicit form of discrimination and a violation of equality. Indeed, it is not truly possible to say that any human right has been fully enjoyed if equality or non-discrimination have been denied. For this reason some people would say that full enjoyment of human rights by people with disabilities necessarily occurs through implementation of the principles of equality and non-discrimination, together with access to specific rights. For example, it is not enough to say that people with disabilities should not be discriminated against in enjoying the right to education if no educational services are provided. Similarly, it is not enough for the State to provide educational services if people with disabilities face discrimination when using them. Thus, States are required to address both equality and non-discrimination and also access to human rights, in order for people with disabilities to truly enjoy their human rights in a manner that is inclusive and respectful of human dignity.

Approaches to Equality, Non-discrimination, and Disability in National Law
Recognizing and respecting the importance of these fundamental principles, many national constitutions contain specific references to the obligation of the State to respect and uphold the principles of equality and non-discrimination. Increasingly, constitutional documents also contain references to disability as a prohibited grounds for discrimination. The following represent some examples of such provisions from different countries (Bold typeface has been added to references to "disability"):
Charter of Rights and Freedoms of Canada Equality Rights 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Constitution of Fiji Section 38, Equality (1) Every person has the right to equality before the law. (2) A person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her: (a) actual or supposed personal characteristics of circumstances, including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability; or (b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others; or on any other ground prohibited by this Constitution.
Constitution of South Africa Chapter 2: Bill of Rights 9. Equality 1. Everyone is equal before the law and has the right to equal protection and benefit of the law. 2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. 3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. 5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
Constitution of Uganda Equality and freedom from discrimination. 21. (1) All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law. (2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability. (3) For the purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability. (4) Nothing in this article shall prevent Parliament from enacting laws that are necessary for- (a) implementing policies and programmes aimed at redressing social, economic or educational or other imbalance in society; or (b) making such provision as is required or authorised to be made under this Constitution; or (c) providing for any matter acceptable and demonstrably justified in a free and democratic society. (5) Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Constitution.

1. Brainstorm/Discuss:
Brainstorm, listing responses to:

What does the phrase "equality" mean to you?
When you think of "enjoying full equality and non-discrimination," what do you think that would mean in terms of -

How you live your life?
How you treat other people?
How other people treat you?
What opportunities you have access to?
What life experiences you can enjoy?
What about how others live and experience their lives?

Review the definitions of formal equality, equality of opportunity, and de facto equality. Ask for examples of each from participants' personal experiences or observations.

2. Imagine:
Divide participants into small groups. Give these instructions:
Make up a fictional account of a person with a disability who enjoys formal equality of opportunity (e.g., at school, in the workplace, in the community) but does not yet enjoy de facto equality with others in that setting. Give the person a name, specific age, disability, and living context. Consider:

What barriers have been removed or actions taken to ensure that this person enjoys formal equality of opportunity?
What barriers have not been removed?
How would de facto equality be different for this person?

3. Present/Discuss:
Ask each group to "introduce" their imagined person. After each presentation discuss:

What additional actions are needed to ensure de facto equality for that person?
Who is responsible for taking those actions and how could they be achieved?

1. Brainstorm/Discuss:

Can you think of examples of discrimination and inequality that might be common to different people with disabilities in their everyday lives? List these.
In your examples of discrimination and inequality, does the discrimination occur only on the grounds of disability? What other kinds of discrimination might people with disabilities experience?
Does discrimination only affect people with disabilities? What about their friends or family?

2. Analyze:
Break into pairs or small groups, and using the list of examples of discrimination and inequality generated, ask each group or pair to choose one example and discuss among themselves:

Who is responsible for the discrimination and inequality?
Why might the person or persons responsible engage in the discrimination and violations of equality? Are they even aware they are behaving in a discriminatory way?
What are the root causes of the discrimination and inequality?

3. Role Play:
Ask each group or pair to report on their analysis and to role play at least one of the barriers or root causes of discrimination and inequality that a person with a disability might face.

4. Discuss:

What are the consequences when the root causes of discrimination and inequality are not addressed? To the person with disability? To society as a whole?
Which root causes/barriers have the greatest effect on people with disabilities? On society as a whole?
What can be done to eliminate these most significant causes and/or barriers to full enjoyment of the principles of equality and non-discrimination?
What can be done to make people aware that they are behaving in ways that continue discrimination against people with disabilities?

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WHAT DOES HUMAN RIGHTS LAW SAY ABOUT EQUALITY AND NON-DISCRIMINATION?

Numerous provisions addressing equality and non-discrimination are found throughout international human rights law instruments, reflecting the importance of these principles to the enjoyment of human rights. Indeed, the Preamble of the Universal Declaration of Human Rights (UDHR)2 talks about the "equal rights of men and women," and Article 1 begins by saying that "All human beings are born free and equal in dignity and rights." Article 2 of the UDHR then goes on to list the grounds upon which no "distinction" or discrimination is permitted, including "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Article 7 addresses equality before the law and equal protection of the law: in other words the right of everyone to have the law fairly applied without discrimination. Further references to "equality" are found throughout the rest of the UDHR in the context of specific rights, such as the equal rights of men and women regarding marriage.

The basic provisions found in the UDHR are reflected again in the International Covenant on Economic, Social and Cultural Rights (ICESCR)3 and the International Covenant on Civil and Political Rights (ICCPR).4 Both the ICESCR and ICCPR contain articles ensuring the equal rights of men and women (Article 3 in each Covenant), and prohibitions of discrimination (Article 2 in each Covenant) on the same grounds as those listed in the UDHR. Article 26 of the ICCPR addresses the issue of equality before the law and equal protection of the law.

Similar provisions are reflected again in other international human right treaties. For example, Article 2 of the Convention on the Rights of the Child (CRC) expressly prohibits discrimination on a number of bases, including disability, regardless of whether it is the child or parent who is disabled.5 In some cases the overall purpose of the treaties is to combat specific types of discrimination. For example, the express intent of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)6, and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)7 is to combat discrimination on the basis of race and against women respectively.

The non-legally binding UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities (Standard Rules)8 has a strong focus on the concept of equality of opportunity, even incorporating the concept into its title! All of the Rules included in the Standard Rules are intended to promote achievement of full participation and equalization of opportunities for people with disabilities.

The Convention on the Rights of Persons with Disabilities (CRPD) contains three articles of particular relevance to the principles of equality and non-discrimination: Articles 2, 3, and 5. Although it does not elaborate on the concepts, Article 3 (General Principles) clearly establishes equality and non-discrimination as two of the most important principles of the Convention, which along with other principles such as respect for difference and autonomy, should be applied to interpretation and implementation of all other substantive articles in the CRPD.

Article 5 addresses equality and non-discrimination in more detail, specifying that States must recognize the equality of people with disabilities before the law and the equal protection and benefit of the law. Article 5 also bans discrimination on the basis of disability and obligates States to guarantee "equal and effective legal against discrimination on all grounds." Although the additional grounds on which people with disabilities should not be discriminated against are not listed in Article 5, they appear in paragraph (p) of the Preamble, which lists them as:

... race, colour, sex, language, religion, political or other opinion, national, ethnic,
indigenous or social origin, property, birth, age or other status.

Though the list of prohibited grounds is similar to that included in the ICESCR, ICCPR and other international human rights instruments, it is broader than some in that it also references "ethnic" origin, "indigenous" origin, and "age" as grounds upon which people with disabilities should not be discriminated.

Article 5 represents the first time that an international human rights convention expressly bars discrimination on the basis of disability. That is not to say that disability-based discrimination is permitted under the prior human rights conventions simply because their lists of prohibited grounds do not include the term "disability." Arguably, the references in the ICESCR, ICCPR and other treaties to "other status" preclude discrimination on the basis of disability. However, Article 5 of the CRPD leaves no question that discrimination on the basis of disability is prohibited, though Article 5 does not define this term.

Instead, this definition is provided in Article 2, where other definitions (including "reasonable accommodation") are also elaborated. Article 2 indicates that "discrimination on the basis of disability" means any "distinction, exclusion or restriction on the basis of disability" that has the "purpose or effect of" damaging or denying the enjoyment or exercise of human rights by people with disabilities. It also specifies that the failure to provide reasonable accommodation is itself a form of discrimination.

As well as prohibiting discrimination both on the basis of disability and other grounds, Article 5 requires States to ensure provision of reasonable accommodation, in order to "promote equality and eliminate discrimination." It also specifies that any measures undertaken to ensure or speed up the "de facto equality" of people with disabilities, should not be considered discrimination under the Convention. Unlike similar provisions in other treaties (such as Article 4 of CEDAW), Article 5 does not set a time limit on the use of such measures or refer to them as "temporary" measures because the reality is that such measures will need to continue indefinitely for many people with disabilities to enjoy de facto equality.

Taken as a whole, States' obligations with regard to equality and non-discrimination include:

Obligation to respect:States must refrain from engaging in any act, custom or practice that is inconsistent with the principles of equality and non-discrimination (e.g., they may not pass or maintain laws that discriminate against people with disabilities);
Obligation to protect:States must take all appropriate measures to eliminate discrimination and violations of equality by any non-State actors, such as persons, organizations or private enterprises (e.g., the State should ensure that employers do not discriminate against people with disabilities in hiring and employment settings);
Obligation to fulfill:States must be proactive in their adoption and implementation of measures to give effect to the principles of equality and non-discrimination (e.g., through the use of "fair discrimination" or "affirmative action").

Exercise 1.3: Understanding Equality and Non-discrimination

Objective:	To review and understand the equality and non-discrimination provisions of the CRPD
Time:	45 minutes
Materials:	Chart paper and markers or blackboard and chalk

1. Review:
Divide the participants into small groups. Ask each group to work together to paraphrase Articles 5 and 2 in common language, and give some examples of how they could be enjoyed and make a difference for people with disabilities in their community. Alternatively, have some groups address Article 5 and others address Article 2.

2. Paraphrase:
Read Articles 5 and 2 aloud, pausing at each natural section to ask different groups for their paraphrase. Discuss the meaning of the sections until everyone can agree on a paraphrase. Write the final paraphrase of the articles on chart paper.

3. Give examples:
Ask for examples of how the rights to equality and non-discrimination could be enjoyed and make a difference for people with disabilities.

4. Discuss:
How can Articles 5 and 2 of the CRPD be used to set national disability rights agendas and formulate platforms of action for submission to political parties or government decision-makers?

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Things to Remember About Equality and Non-discrimination

Here are some of the main things to remember about these important principles of
human rights:

Equality and non-discrimination are central to the enjoyment of all rights;
Effective access to human rights is central to the enjoyment of equality and non-
discrimination;
Equality means that we all have the same inherent worth, regardless of our
differences. There are different approaches to equality:
- Formal equality
- Equality of opportunity
- Substantive or "de facto" equality.
Non-discrimination concerns avoiding and correcting unfair treatment on
the basis of disability, regardless of whether the unfair treatment is blatant or
subtle;
Under the CRPD:
- Equality and non-discrimination are two of the most important principles;
- States cannot discriminate on the basis of disability, and they must act to
  stop non-State actors discriminating on the basis of disability;
- Failure to provide reasonable accommodation is a form of discrimination
  on the basis of disability;
- States must take positive action to promote and ensure de facto equality
  of people with disabilities.

Exercise 1.4: Making a Commitment to Promote Equality Non-discrimination

Emphasize that human rights involve both rights and responsibilities.

Ask if after learning about the right to equality and non-discrimination for people with disabilities, the group is ready to think about taking concrete action;
Acknowledge that, although there is still much planning and information gathering to do, commitment to creating change is also very important;
Explain that you would like to ask each participant to name one individual action, however small, that she or he is willing and able to take in the next month to promote the right to equality and non-discrimination of people with disabilities to ensure their full enjoyment of all human rights;
If there is time, draft an action plan that promotes equality and non-discrimination, identifying actors who have responsibility to promote equality and non-discrimination and what can be done to ensure that they meet their obligations.

For planning advocacy for the human rights of people with disabilities, see Part 3, "Advocacy! Taking Action for the Human Rights of People with Disabilities," p. 229.

ADDITIONAL RESOURCES ON EQUALITY AND NON-DISCRIMINATION

General Comment No. 18 of the Human Rights Committee:
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3888b0541f8501c9c12563ed004b8d0e?Opendocument
General Comment No. 5 of Committee on Economic, Social and Cultural Rights:
http://hrlibrary.law.umn.edu/gencomm/epcomm5e.htm
Gerard Quinn and Theresia Degener, et. al., "Human Rights Are for All: A Study on the Current Use and Future Potential of the UN Human Rights Instruments in the Context of Disability" (OHCHR, February 2002):
http://www.ohchr.org/english/issues/disability/study.htm
Report of the United Nations High Commissioner for Human Rights on progress in the implementation of the recommendations contained in the study on the human rights of persons with disabilities:
http://www.ohchr.org/pacific/docs/Report_UN_HC_Disability.pdf

________________
1	"Equality Update". Nov/Dec 2006. South Africa Human Rights Commission.
	"Equality Court Victory for People with Disabilities". 24 Feb. 2004. South African Government Information.
2	See http://www.unhchr.ch/udhr
3	See http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
4	See http://www.unhchr.ch/html/menu3/b/a_cescr.htm
5	See http://www.unhchr.ch/html/menu3/b/k2crc.htm
6	See http://www.unhchr.ch/html/menu3/b/9.htm
7	See http://www.unhchr.ch/html/menu3/b/e1cedaw.htm
8	See http://www.ohchr.org/english/law/opportunities.htm

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CHAPTER 1: EQUALITY AND NON-DISCRIMINATION

Objective:	To understand what it means to enjoy equality and non-discrimination
Time:	30 minutes
Materials:	Chart paper and markers or blackboard and chalk

Objective:	To identify barriers to equality and non-discrimination faced by people with disabilities
Time:	45 minutes
Materials:	Chart paper and markers or blackboard and chalk