Human rights experts help us determine whether equality law is set up to protect the most vulnerable in times of crisis.

This is Episode Two of a four-part series. The series takes a deep dive into whether equality law is cut out to protect the most vulnerable in times of crisis, and if not, then why not and what can we do about it?

This podcast series is part of the Exponential Inequalities project, led by Shreya Atrey as the Principal Investigator of the British Academy Leverhulme Small Research Grant on Equality Law in Times of Crisis.

Transcript and show notes available on the Oxford Human Rights Hub website at ohrh.law.ox.ac.uk.

Producer, Presenter, Sound Editor: Christy Callaway-Gale
Executive Producers: Shreya Atrey, Meghan Campbell, Sandra Fredman
Assistant Producers: Mónica Arango Olaya, Gauri Pillai, Natasha Holcroft-Emmess
Transcript and show notes: Sarah Dobbie

TRANSCRIPT:

EPISODE 2: “…Patriarchal Mentality” : The Functioning of Equality Law in Crisis

Anna Lawson (0:02)

If the Equality Act had been working effectively, there wouldn’t have been any litigation.

Kelley Loper (0:07) 

So, to be clear, Hong Kong equality law already fell far short of addressing inequality even in so-called “normal” times.

Christy Callaway-Gale (0:18)

You’re listening to RightsUp, a podcast from the Oxford Human Rights Hub. I’m Christy, Podcast Producer at the Oxford Human Rights Hub, and in collaboration with Shreya Atrey, Associate Professor in International Human Rights Law at the University of Oxford, we’re putting together a special four-part series on “Equality Law in Times of Crisis”.

Christy Callaway-Gale (0:45)

In Episode 1, we looked at how pre-existing inequalities have been exacerbated by the COVID-19 crisis, turning into what we might like to call “exponential inequalities”. Now, I want to know if equality law and equality-related legislations and policies are set up to tackle these exponential inequalities that we’ve been hearing about, and if not, then why not?

Christy Callaway-Gale (1:13)

In 2020, Katie Rowley, a hearing-impaired woman, launched a claim against the UK Government for the lack of sign language interpreters at the daily coronavirus briefings, claiming this breached the UK Equality Act 2010. Here’s Anna Lawson with a brief recap of the Equality Act. Anna works as Professor of Law at the University of Leeds and is Joint Director of the Multidisciplinary Centre for Disability Studies.[1]

Anna Lawson (1:39)

So, the Equality Act replaced a range of single protected characteristic legislation, one of which was the Disability Discrimination Act 1995. And the Disability Discrimination Act 1995 started life with some huge omissions, including education and transport, and employers with less than 20 employees. Those gaps gradually got filled, and the Equality Act was an opportunity to reflect on further gaps, further ways in which the disability discrimination legislation could be strengthened, as part of bringing it together with law prohibiting sex discrimination, race discrimination, etc.

Christy Callaway-Gale (2:33)

Okay, so Katie Rowley was claiming that the UK Government was breaching this Act by not having sign language interpreters at the daily coronavirus briefings, and she won the case. As reported by Disability Rights UK, the judge ruled that “[t]he lack of provision – the provision of subtitles only – was a failure of inclusion, suggestive of not being thought about, which served to disempower, to frustrate and to marginalise”.[2] So, does this mean that the UK Equality Act 2010 is fit for purpose?

Anna Lawson (3:09)

So, the COVID crisis was a really good lens through which to think about the effectiveness of the Equality Act. If the Equality Act had been working effectively, there wouldn’t have been any litigation, so in that sense we can say the Equality Act didn’t meet its objectives.

Christy Callaway-Gale (3:29)  

But, like anything, the answer is not so simple. There’s some nuance hiding here, which I’ll get to a little later on. But for now, I just want to stick with why the Equality Act isn’t meeting its objectives. Back to Anna Lawson.

Anna Lawson (3:43)

I think it’s fair to say, from a disability perspective, there’s been, for many disabled people and their organisations, a certain level of disappointment associated with the effectiveness of this Act. The disappointment, I think, is reflected in a House of Lords report— a House of Lords committee report in 2015, which looked back at the first five years of the Equality Act and considered its impact and effectiveness from a disability perspective.[3] So, a lot of the problems they identified were lack of awareness, lack of understanding of duty bearers and disabled people of what the relevant rights and obligations were. And I think there was some concern that losing a disability- specific enforcement body— so, there was a Disability Rights Commission before the Equality and Human Rights Commission— losing that, and having a much more restricted budget under the new Commission, that was partly the reason for this— levels of awareness not increasing as much as had been hoped.

Christy Callaway-Gale (4:53)  

Anna goes on to tell us that not having a particular Disability Commission anymore meant that it was difficult to know where to go to find information. This would often end with people searching through the guidance on all of the protected characteristics — such as race, gender, sexual orientation — to find the parts that spoke about disability, which was challenging and time consuming. According to Anna, cuts to legal aid funding also made it difficult for people to get advice on their legal rights.

Christy Callaway-Gale (5:25)  

But let’s get back to that nuance I promised. The Equality Act has also been positive to an extent.

Anna Lawson (5:32)  

Without the Equality Act, I think disabled people would have been in a much worse position, and it was really the proactive elements of the Equality Act that we— were particularly useful. So, it was the anticipatory, or the ex-ante, reasonable adjustment duty that was— that was relied on.

Christy Callaway-Gale (5:51)  

The anticipatory nature of this duty essentially puts the responsibility on service providers and public bodies to think in advance about accessibility and take reasonable steps to make sure disabled people aren’t at a disadvantage.

Anna Lawson (6:05)  

So, it was particularly useful in the context of a crisis because it meant that— well, (a) it focused attention on the fact that they should be thinking about disabled people on an ongoing basis, and avoiding introducing new barriers, new obstacles, new disadvantages into what they were doing. There were, like, 700 people at one point who were bringing cases against supermarkets based on their failures to make anticipatory reasonable adjustments to how their shops, how their online systems worked in order to make them accessible and inclusive of disabled people. And similarly, there were 300 people who were bringing cases against the government for failing to make its public health information accessible to sign language users. So, [it was] very interesting, because we hadn’t had that mass group reliance on the anticipatory duty to bring the same type of case before COVID. So, it— the fact that there was an emergency, and people were experiencing the same sort of problem at the same time, catalysed the potential of this duty to really support group actions.

Christy Callaway-Gale (7:26)  

So, this is fascinating. The widespread and urgent nature of the crisis led to group action like never before, and perhaps in the process made more people aware of the rights of disabled people. So, at the same time as the UK Equality Act wasn’t meeting its objectives, it was suddenly in the limelight.

Christy Callaway-Gale (7:47)  

But what happens if there are multiple compounding crises happening at the same time, which, let’s face it, is going to occur. After all, crises don’t tend to wait patiently for their turn.

Kelley Loper (8:00)  

So, actually, in normal times, equality law is not necessarily the best way to address complex disadvantage. But in times of crisis, and especially in times of intersecting or multiple or concurrent crises, it becomes even more difficult.

Christy Callaway-Gale (8:18)  

Kelley Loper is Associate Professor and Director of the Human Rights programme at the University of Hong Kong.[4] Kelley’s examining whether equality law in Hong Kong is set up to deal with the complex reality of disadvantage in a country where the COVID-19 pandemic has collided with a political crisis. Spoiler: she’s finding there’s a lot left to be desired.

Kelley Loper (8:39)  

So, to be clear, Hong Kong equality [law] already fell far short of addressing any inequality even in so-called “normal” times. So, for example, the Race Discrimination Ordinance expressly excludes direct and even indirect racial discrimination based on a person’s nationality or immigration status. So, it’s not possible to challenge an action or omission related to nationality even if it indirectly has a disproportionate and negative impact on a particular ethnic group.

Christy Callaway-Gale (9:15)  

And now let’s add in COVID-19.

Kelley Loper (9:19)  

Another issue with this exception for nationality and immigration status is that immigrants coming from mainland China— and the border between Mainland China and Hong Kong actually very much resembles an international border— and immigrants coming to Hong Kong from mainland China are apparently excluded from protection from discrimination on the basis of their immigration status or on the basis of their origin.

Kelley Loper (9:47)  

And early in the pandemic we saw that many restaurants put up signs saying that people from mainland China could not eat there, or they would say people who speak Mandarin Chinese (which is distinct from Cantonese, which is the predominant dialect in Hong Kong) could not enter the restaurant and could not be patrons of the restaurant.

Christy Callaway-Gale (10:12)  

And on top of this, let’s add in an ongoing political crisis.

Kelley Loper (10:16)  

And this was also linked, actually, to some of the political crises that happened at the end of 2019 and early 2020, when there was quite a lot of hostility against the Chinese government, and many businesses actually took sides in the street protests that were happening — so, some were more pro-government and others were more pro-protester. And it seemed that many of the restaurants that took a political side in favour of the protests actually (and perhaps somewhat ironically) were the ones who were discriminating against mainland Chinese.

Kelley Loper (10:53)  

I should also add that we have a constitutional right to equality in Hong Kong. And in a number of landmark cases, our Court of Final Appeal, which is our apex court in Hong Kong, has started to develop a substantive equality doctrine. But so far, the courts have not really necessarily applied this substantive equality doctrine very consistently and I think they have missed a number of opportunities to identify intersectional discrimination experienced by migrant domestic workers, for example, and other immigrant groups.

Christy Callaway-Gale (11:37)  

And circling back now to one of the very first examples of exponential inequalities from Episode 1, we move to Kenya, where informal settlers have been particularly vulnerable during the pandemic. Is equality law in Kenya managing to protect these informal settlers? Here’s Victoria Miyandazi, Advocate of the High Court of Kenya and Law Lecturer at the University of Embu.[5]

Victoria Miyandazi (11:59)  

Equality law in Kenya aims to assess vulnerable groups in Kenya, particularly persons like informal settlers, through its provisions that really emphasise on the priority to be given to vulnerable groups. With this COVID-19 crisis, most of the measures that are put in place were to make sure that the social and economic part of the country ran smoothly, and hence it required also an equality-sensitive approach. However, we see that there has been— you can see that it’s more of a double-edged sword.

Victoria Miyandazi (12:33)  

At one end of the spectrum, we can see that the government had its own fair share of failures — as much as programmes were well intended, or initiatives— intervention— or interventions to curb the spread of COVID-19 are well intentioned, they failed to apply an equality-sensitive approach prioritising the needs of vulnerable groups— socio-economic needs of vulnerable groups.

Victoria Miyandazi (12:57)  

But then, at the other end of the spectrum, the courts have been quite vigilant to make sure that the government plays its part in terms of making sure that vulnerabilities are not intensified by applying the law, and by applying equality provisions at that. And so we can see this check in— these checks and balances working particularly for vulnerable groups, but obviously not to the extent that would be satisfying, at many levels. But at some level, it’s admirable.

Christy Callaway-Gale (13:34)  

These examples from Kenya, Hong Kong, and the UK reveal a mixed picture. In the UK, while the Equality Act was failing to meet its objectives, disabled people would have been in a worse position without it, and the urgency and widespread nature of the COVID-19 pandemic arguably helped to increase awareness of disabled people’s rights. In Hong Kong, it’s been a struggle to unpick intersecting crises and intersectional discrimination, leading to missed opportunities to protect the most vulnerable. And in Kenya, we see the courts keeping the government on track, for the most part, when it comes to protecting vulnerable groups.

Christy Callaway-Gale (14:13)  

But what we’ve heard frequently throughout these examples is the idea that equality law wasn’t working at its best even in “normal” times. We’ve heard a bit already about why this might be, but another pattern jumped out at me as I was scrolling back through the transcripts of the interviews we did with Marta Machado from the FGV Law School in São Paulo[6] and Aaron Reeves, Associate Professor at the Department of Social Policy and Intervention at the University of Oxford,[7] and his is voice you haven’t actually heard yet in this series. These are the quotes that caught my attention.

Aaron Reeves (14:49)  

The history of policymaking around social security for larger families over the last decade is rooted in a set of assumptions.

Marta Machado (14:56)  

It was difficult to stabilise this law in a judiciary that had a very patriarch[al] mentality.

Aaron Reeves (15:03)  

It is rooted in a set of assumptions…

Marta Machado (15:05)  

…very patriarch[al] mentality…

Aaron Reeves (15:07)  

…set of assumptions…

Marta Machado (15:08)  

…patriarch[al] mentality…

Christy Callaway-Gale (15:10)  

Patriarch[al] mentality. Sets of assumptions. It dawned on me, perhaps naively at this stage, that those that create and enforce the laws and policies that are supposed to protect against inequalities don’t exist independently of society — they live amongst us, and just like anybody else, they too can be subject to dominant discriminatory ways of thinking that have permeated our societies over generations, and on an institutional level as well. This means, for example, that perfectly good constitutional provisions and equality law could fail to be enforced.

Christy Callaway-Gale (15:47)  

Cue the story of the “Lipstick Lobby”, as told by Marta Machado from the FGV Law School, São Paulo.

Marta Machado (15:54) 

The 1988 Constitution was— was the democratic constitution enacted after 24 years of military dictatorship, and around the drafting of this new constitution we had a lot of civil society mobilisation. Women specifically, were— had a really strong mobilisation. They had an interesting story because they were called the “Lipstick Lobby”, which was a name that first, the media at the time were maliciously nicknaming the women as “Lipstick Lobby”, but then they, kind of, re-signified and used that to gain visibility.

Christy Callaway-Gale (16:42)  

The Lipstick Lobby mobilised and worked hard to secure respect for women’s rights in the Brazilian 1988 Constitution. This was a huge victory, and you might be forgiven for thinking that that would be enough. Let’s fast-forward now to 2006.

Marta Machado (16:59)  

In 2006, we had a very important law. The María da Penha law, which is a statute to combat domestic violence, which is— and it’s a very innovative statute, [it] was very progressive.[8]

Christy Callaway-Gale (17:13)  

Again, this seems positive. This time, a progressive law to tackle domestic violence, not pioneered by the Lipstick Lobby, but you could say a continuation of their legacy, perhaps. So, what went wrong?

Marta Machado (17:27) 

It was difficult to stabilise this law in our judiciary that had a very patriarch[al] mentality. And so too was, like, judging the new law and judging the cases without the new law mind frame. So, this is where we are now — with a very good law and we have a lot of problems of enforcement.

Christy Callaway-Gale (17:50)  

And structural issues in society can hold back gender equality too, and these have inevitably been made worse by the pandemic, a phrase we’ve heard so much already in this series, but that does not get to less true.

Marta Machado (18:04)

Yeah, I think gender equality became more complicated after COVID. The other day, we had— there was this slogan in the newspaper, “We are three decades back”, because the number of women in the market economy— it’s— we got to the same number we had three decades before. We should think that, more structurally, it’s very difficult— I used to say that, yeah, the Supreme Court has an important role to address substantive equality since we have a strong Charter of Social Rights, so we have more— we have more legal opportunity to advance measures of social equality, but I think it’s so structural that that’s really a challenge to any legal measure to advance gender equality in Brazil.

Christy Callaway-Gale (19:04)

Aaron Reeves argues that social welfare policies and institutions in the UK operate on assumptions around particular groups.

Aaron Reeves (19:12)  

One of the big assumptions, I think, is a kind of distinction that often gets made between “hard working” families and those that are on benefits. And the reason that that’s a false assumption, or false distinction, is because at various points in our lives all of us, or almost all of us, rely on the welfare state to some degree. But there is, I think, another distinction that’s really important here, and this is— goes back, I think, a really long time, back to the work of Thomas Malthus, and he has argued that one of the problems with social security per se, as a way of organising society, is that it actually runs the risk of creating perverse incentives in which people are actually incentivised not to take care of themselves, not to work, not to put effort in to support themselves and their families, and in his view that requires us to actually treat those on social security in a kind of disgraceful way — we have to treat them as though it’s a shameful thing to be on social security. And I think both of those assumptions have been critical to policymaking around social security during the last decade, and that those assumptions are still built in, in many ways, to the response to the pandemic from the government too.

Christy Callaway-Gale (20:30) 

So, if equality law legislations and policies can’t be severed from the context of the society in which they’re operating, when we start thinking about potential improvements to equality law we’re going to have to think big. Join us for Episode 3, where our human rights experts from around the world will be doing just that.

Helena Alviar García (20:52)

Only a constitutional reform is not enough to guarantee equality.

Beth Gaze (20:58)

We need to move beyond the individualised focus of anti-discrimination law.

Christy Callaway-Gale (21:04)

This podcast is part of a special series under the Exponential Inequalities Project. The project is led by Shreya Atrey, as the Principal Investigator of the British Academic/Leverhulme Small Research Grant on “Equality Law in Times of Crisis”. The Producer and Presenter was me, Christy Callaway-Gale, Assistant Producers, Mónica Arango Olaya, Gauri Pillai, and Natasha Holcroft-Emmess. Transcripts were produced by Sarah Dobbie and with music by Rosemary Allmann. Thanks to Meghan Campbell and Sandra Fredman for their generous feedback and guidance.

[1] “Professor Anna Lawson” University of Leeds, https://essl.leeds.ac.uk/law/staff/203/professor-anna-lawson.

[2] “Deaf woman wins discrimination case against Government” Disability Rights UK (28 July 2021), https://www.disabilityrightsuk.org/news/2021/july/deaf-woman-wins-discrimination-case-against-government. See also R (on the application of Rowley) v Minister for the Cabinet Office [2021] EWHC 2108 (Admin), http://www.bailii.org/ew/cases/EWHC/Admin/2021/2108.html.

[3] Select Committee on the Equality Act 2010 and Disability, “The Equality Act 2010: the impact on disabled people” (HL Paper 117) (24 March 2015), https://publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/11702.htm.

[4] “Kelley Loper” The University of Hong Kong: Faculty of Law, https://www.law.hku.hk/academic_staff/kelley-loper/.

[5] “Dr Victoria Miyandazi” University of Embu Law School, https://law.embuni.ac.ke/?p=457.

[6] “Marta Rodriguez de Assis Machado” FGV Direito SP, https://direitosp.fgv.br/en/professor/marta-rodriguez-de-assis-machado.

[7] “Dr Aaron Reeves” University of Oxford: Department of Social Policy and Intervention, https://www.spi.ox.ac.uk/people/dr-aaron-reeves.

[8] See, e.g., Pablo Uchoa, “Maria da Penha: The woman who changed Brazil’s domestic violence laws” BBC News 22 September 2016), https://www.bbc.co.uk/news/magazine-37429051.