8 Int'l J. Discrimination & L. 1 (2005-2007)

handle is hein.journals/ijdisclw8 and id is 1 raw text is: 





International Journal of Discrimination and the Law, 2005, Vol. 8, pp. 1-6
1358-2291/2005 $10
0 2005 A B Academic Publishers. Printed in Great Britain

EDITORIAL: CONSTITUTIONALISING EQUALITY


This collection of articles was conceived as a way of marking the
remarkable changes that have occurred in the field of anti-discrimina-
tion law, policy and practice over the last few years. In their various
ways the articles set out to reflect the transformation in the scope of
coverage and in the mechanisms used in the attempt to combat discri-
mination. Although not directly prompted by the emergent Treaty
establishing a Constitution for Europe,1 the controversies generated
by that process focused attention on the possibility of embedding
fundamental rights into such an instrument and encouraged those
who see the future of equality benefiting from a rights based discourse.
Whilst the articles consider a range of topics, there are several readily
recognisable common themes. For example, several of the authors
identify the intersectional rather than categorical nature of discrimina-
tion - a factor which is going to be increasingly important as the
grounds on which discrimination is prohibited expand. Second,
there is the recognition that the traditional approach to the elimination
of inequality has not succeeded and that there is a need to use other
methods, including mainstreaming and the imposition of positive
duties. Third, it is clear that the enactment of the Human Rights
Act has given an additional dimension to equality discourses but
has also highlighted the problems which result from uneven, indeed,
unequal, coverage of different groups.
     Whilst it is stating the obvious to observe that 'equality' is a
problematic concept,' academics, commentators and policy makers
within Europe have become familiar with the particular model of
equality adopted by the European Economic Community in order,
initially, to facilitate competition and free movement of workers.
This model can be seen in operation in the context of sex discrimina-
tion where equality was to be achieved by the equal (that is, non-
discriminatory) treatment of men and women. As the drawbacks
of this approach became obvious, there were attempts to ameliorate
the consequences of such an unsophisticated mechanism to address
the complexities of inequalities. Unfortunately, in trying to develop
new strategies, the limitations of the tools available also became
apparent. Whilst the concept of indirect discrimination pays lip
service to the different situations of men and women (or of members
within other protected groups) the rigidities of the legislative schemes
- certainly as originally prescribed - had the result that its potential
for ameliorating inequalities were limited.3 The problems caused by

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