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University of Lund

MRS G20/ Human rights: Intermediate - Discrimination and Equality

Home-Exam

Maroof Hewad

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Introduction:

Protecting all human beings against discrimination is from the fundamentals of human rights. However, these

protections against discrimination are no “free-standing” in the human rights discourse.1 That is to say, for the

enjoyment of these rights, one needs to show its ability that one or more of these rights in the shelter of human

rights act is or has caused discriminatory treatment. Likely, many of the UN core conventions cover laws on

discrimination. For instance, the UN declaration of human rights (UDHR) drafted in 1948 is evidence at this

regard.

“All human beings are born free and equal in dignity and rights”

The above citation is taken from article 1 of the (UDHR). Almost every country in the world has singed many

of the human rights core conventions; among others Sweden has a long history in the human rights applicability

and covenants ratifications. For instance, the first discrimination law (law of equality in 1979) introduced was

aimed to avoid gender discrimination and instead to promote equality opportunity between men and women in

the working life2.joining the European Union in 1995 affected Sweden to bring changes and amendments in its

laws, among others discrimination laws.

The case analysis:

Part: A

In 2007 in the Eslov municipality, just before leaving the delivery department, the new born child of both Anna

and Anders were taken into custody by Britta, the representative of the Swedish Social service authority in order

to provide a better child caring. A brain injury had caused the mother, Anna, an intellectual disability. However,

she has no problems in communications and interactions with her surroundings‟ while Anders also has no

disability.

From the case mentioned, I will be analyzing if the behavior of the social services is consistent with the

Swedish discrimination act (2008:567), and I will also be discussing weather if the conduct of the social

services fulfill the conditions required in the legal requisites of direct or indirect discrimination.

1 Göransson, Håkan Gabinus, Diskrimineringslagen, 2., [uppdaterade] uppl., Norstedts juridik, Stockholm, 2011 19pp

2 Gabinus et. al, 2011, p.21p

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The Swedish laws on discrimination

The Swedish discrimination act (2008:567) came into force 1,January 2009 which covers seven core

discriminations among others, the equality law, gender , gender identity or expression,

ethnicity, religion or belief , disability and - sexual orientation3. To combat discrimination and promote equal

rights is the purpose of the law as set forth in 1§ chap 1 of the discrimination act. But the question here is

weather the behavior conducted by the social authorities of the municipality were in accordance to the Swedish

law and had discrimination either direct or indirect discrimination taken place?

To begin with, the term discrimination within the Swedish system contains both direct and indirect definition of

discrimination which originates from the EU legislation on non-discrimination. For instance, 4 § Para 1 chap 1

defines direct discrimination that; “ someone is disadvantaged by being treated less favorably than someone else is

treated, has been treated or would have been treated in a comparable situation, if this disadvantaging is associated with

sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age.

Direct discrimination is bind with three criteria‟s, namely; a disadvantage, a comparison and a casual

connection4. For at direct discrimination have existed one must be able to show that the less favorable treatment

in itself has a causal connection, in this case with Anna‟s disabilities. If the comparison shows a deviation from

how another person is or would be treated so it is direct discrimination.

The behavior of the social authorities towards the parents of the child

A: Direct Discrimination

Direct discrimination requires that someone is/has or will be disadvantaged in a comparable situation to

someone who is in a similar situation5. One must also be able to compare this with other people, who are in a

similar situation. The criteria can have different implications depending on what circumstances discrimination

has taken place. As may be seen, Anders who had no disability were not deemed as an appropriate parent,

comparing to other parents in the hospital who could take their new born babies out without any official

intervention in a comparable situation. The question may raise here that what about those children who is

growing only under one parent (e.g only father)?. Similarlu, what about other women discharging from the

delivery department along with their child.

3 Gabinus et. al, 2011, p.29. and p.35p

4 Gabinus et. al, 2011, p.43

5 Gabinus et. al, 2011, p.52p

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The criteria interpreted in this case is that the mother cannot react quickly as well cannot handle stressful

situations. This measure taken by the Swedish authority seems to be appropriate and necessary. To achieve the

purpose of the measure taken by the social authority are deemed necessary, for children always need quicker

attention especially from the parents. To rise a child is not an easy task, patience and stress always comes in the

between and the parents must be patience and able to deal with the stress in a good way, besides the children

growing depends much over the parents performances during their growing period. According to a research”

The diagnostic validity of attention-deficit/hyperactivity disorder6” If the parents fail and cannot handle their

stress or cannot react quickly it can affect in the growth of the child especially in the child‟s psychology.

Another research conducted by “Christopher Gillberg (Medicinska institutionen); M Geijer-Karlsson “ shows

15 retarded women were followed and research giving birth to 41 children7, the researchers followed the

children up to the age 1-21, one child out of 41 had died and the remaining 40 (85%) had severe psychological

problems.

B: Indirect Discrimination

With indirect discrimination it means that someone is disadvantaged by applying of a decision, a criterion or by

a process. Unless “that provision, criterion or practice, doesn‟t have a legitimate purpose8 and the means used

are appropriate and necessary to achieve the purpose”. Whereas, it‟s witnessed that both Anna and Anders

child is taken into custody for better fostering, reasoning that Anna could not react as quick as might be needed

as well as cannot handle the stressful situations. The criterion used in this particular case indicates that

appropriate measures were deemed necessary to be taken in order to achieve the purpose, that is to say, for best

interest of the child in taking measures to protecting health, morals, rights of the child a. In addition, a state is

always required to take positive actions and among others the right to equality and non-discrimination entails

different state obligations, as in this particular case 4 (2) § in chap 1of the discrimination act seems to be

consistent with the decision made by the social service authorities. However, section 17 § chap 2 says that

government employees should not treat people in a discriminatory manner9, whereas, the social authority has

failed to meet such criteria, meaning that the behavior of social authorities were inconsistent with 17 § chap 2 of

the discrimination act. Similarly, the case above does not specify on what degree of intellectual disability the

mother of the child has. Sweden has ratified the Convention on the Rights of Children (CRC) in 29 June 1990.

The principle on the best interest of the child contained is provided in article 3 of CRC. This article states that

6 http://psych.colorado.edu/~willcutt/pdfs/Willcutt_Carlson_2005.pdf 2013-10-01

7 christopher Gillberg; M Geijer-Karlsson (1983). Children born to mentally retarded women: a 1-21 year follow-up study of 41 cases.

0033-2917, GUP 156908 8 Gabinus et. al, 2011, p. 49pp

9 Gabinus et. al, 2011, p.151-152

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the child shall be a primary consideration in all actions and at all levels of society where children are somehow

involved. The principle of child constitutes a guiding set of values in the interpretation of the Convention's other

articles10

.

Conclusion

Concluding that it is not discrimination to take possession of the child as in the case of Anna and Anders, but

there is indirect discrimination because no investigation was made and the behavior was inconsistent based on

the section 17 § chap 2 of discrimination act. besides, according to a report titled as “Children who have

parents with intellectual disability11

” from the Swedish national board of social services, there are three reasons

to diagnose mental retardation persons namely; diagnosing, classifying as well in planning support and

measures. Retardation requires that the individual be tested with an intelligence test and adaptive abilities shall

be assessed. The results of the assessments are then to be compared with the criteria for impairment in

intelligence and adaptive abilities that normal people have. The social service office just assumed mentally

retarded persons cannot take care of a child. It allows anyone with intellectual disabilities, regardless of how

difficult it is, at a disadvantage.

Part B

Introduction

In this part I will be discussing whether the behavior of social service office is consistent with the obligations of

Sweden under the Convention on the Rights of Persons with Disabilities while taking into account CRPD‟s ban

against discrimination and the right to respect for home and family, lastly I will also be discussing, the entire

situation on a scale of the requirements which CRPD puts on the Swedish authorities behavior, while comparing

the Swedish anti-discrimination act and if they differ from each other.

People with disabilities has for long been denied their rights both within the international law and domestic and

too often social attitudes towards this group of people are seen and treated as objects rather than as autonomous

rights holders. The realization to secure human rights of person with disabilities had been unsuccessful in the

past, for instance, the classical clause of non-discrimination in UN covenants; article 26 and 2 in ICCPR and

article 2(2) in ICESCR, all direct against discrimination of any kind, thus it provides a list of the discrimination

grounds such as; race, colour, sex, religion, language, political or other opinion, national or social origin,

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http://www.socialstyrelsen.se/Lists/Artikelkatalog/Attachments/9308/2007-131-8_20071319.pdf 2013-09-30 11

Ibid, p.32

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property, birth, or other status. Similarly, article 14 of ECHR enlists same discrimination grounds. But there

were no certain mentioning of the rights of the disabled people12

. Soon after CRPD came into force 3rd

may

2008, the status of people with disabilities changed in international human rights law. Sweden became a

member state by ratifying CRPD in 2008. In addition, CRPD is a legally binding human rights instrument that

bounds states internationally responsible for their responsibilities and positive obligations to act to

accommodate for disabilities on an individual basis where relevant13

e.g. Thlimmenos v. Greece14

. Ratifying the

treaties bounds the states to the pucta sunt servanda rule, that is to say that states should discharge their

obligation in good faith15.

The case analysis

The denial of reasonable accommodation as a form of discrimination

The denial of reasonable accommodation as a form discrimination is a vital innovations of CRPD as set forth in

article 2 which defines reasonable accommodation as;

“Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a

disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the

enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.

The realization of this is further boosted in article 5(3) upon which state parties are obliged to “take all

appropriate steps to ensure that reasonable accommodation is provided” in order to promote equality and

eliminate discrimination. Hence, the connection of “reasonable accommodation” to equality as well plays of de

facto on the availability of both negative and positive aspects to right to equality. That is to say that, the right to

equality does not solely entail the right to be free from discrimination by state or private persons, but also the

right to reasonable accommodation. According the Swedish discrimination act, equality can be achieved if one

is treated different in comparable situation by applying positive special treatment, as may be seen in the case

above. But if “they have a legitimate purpose and the means used are appropriate and necessary to achieve that

purpose”. Since Sweden has ratified CRPD the state comes under obligations set forth in article 4 of the

convention. Similarly, article 4(a and b) declares that state party shall ensure;

12

Arnardóttir, Oddný Mjöll, ‘A future of multidimensional disadvantage equality’, in Oddný Mjöll Arnardóttir and Gerard Quinn, (eds.) (2009) The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives, Martinus Nijhoff Publishers, Leiden p. 45 13

Mjöll el.a 2009 p.60 14

A similar positive obligation to accommodate for different/disadvantaged situations was established under the ECHR Thlimmenos v. Greece [GC] supra note 9. 15

Daniel, M (et. Al.). 2010. International human rights law. Oxford: Oxford University Press p-127

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(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in

the present Convention;

(b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and

practices that constitute discrimination against persons with disabilities;

Accordingly, the behavior of the Swedish social authority in Anna and Ander‟s case, under CRPD article 4 and

5(3) seems to be inconsistent in terms of its realization and applicability. For the Swedish lacks a proper policy

and law on giving accessibility to people with disabilities. Sweden has a dual legal system, meaning that the

international conventions are not incorporated into national legislation16

. CRPD is the 21 century human rights

instrument that seeks to protect the human rights of persons with disabilities in a unique situation17

. Article 1 of

CRPD bounds the Swedish state to ensure and protect the rights of persons with disabilities and article 2 gives a

brief definition of the term “discrimination” and “reasonable accommodation”.

The right to respect for home and family

However, both Anna and Anders could retort by naming article 23 of the covenant that guarantees the right to

respect for home and family. For example, art 23(2) bounds the Swedish government to respect and ensure that

“rights and responsibilities of persons with disabilities, with regard to guardianship, ward-ship, trusteeship,

adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the

best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with

disabilities in the performance of their child-rearing responsibilities”.

However, as described in Anna and Anders case that Swedish authority failed to realize the importance of

article 23(4) that states;

4. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent

authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.

Considering this gap e within the Swedish legal system may be seen, as the social service authority did not have

any judicial review and legal or medical evidence to strengthen the decision in taking the child to a foster home

but only relying on the Swedish discrimination act and self considering in taking special measure to achieve the

aim and purpose, as well as the section 17 § chap 2 of the discrimination act as stated above provides that

official authorizes shall not treat people in a discriminatory manner. The problem of implementation often lays

on the “interpretation” of the covenant. According to discrimination act interpretation of chapter 1 section 5

16

UN Committee on the Rights of Persons with Disabilities (CRPD), Implementation of the International Convention on the Rights of Persons with Disabilities : initial report submitted by States parties under article 35 of the Covenant : Sweden , 18 September 2012 17

Mjöll el.a 2009 p. 43

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Para 4 “disability refers to permanent physical, mental or intellectual limitation of a person„s functional capacity

that, as a consequence of injury or illness existed at birth, has arisen since then or can be expected to arise”, but

articles 2, 4, 5 and 23 in CRPD differs at this regard. For instance, Para 5 of art 23 states that if the parents or

family are unable to take care of the children with disability, the state party can take measures by providing an

“alternative care within the wider family”. One alternative could have been as Anna and Anders reminded the

authority to go to an investigation process but was denied. As may be seen that article 5(3) CRPD constitutes to

promote equality and eliminate discrimination, state parties shall take all appropriate steps or measures in

providing the reasonable accommodation18

.Concluding that obligation of the Swedish government based on

article 23 of the covenant is on the stake. Hence, the failure of the Swedish government obligation under CRPD

art 23 is inappropriate with the Swedish discrimination act (2008:567).

Question 2

The understanding and analyzing of discrimination in the globalized society became an approaching method to

the intersectional fundamentals by moving it beyond the presumed collective classification and instead adopted

a conceptual framework by taking into account all forms of discrimination along with their intersections. The

concept of intersectionality is widely used both in scientific circles and in the public debate. The concept also

allows entry into the field of research in social work and is often used as an alibi for the complex understanding

of power relations19. Intersectionality has become a popular buzzword in which those who use the concept of

intersectional in analyzing to demonstrate awareness and understanding of the complexity of inequality-creating

mechanisms and power relations20

. Considering the definition of intersectionality the production of knowledge

in the society needs to be understood. Knowledge production can never be separated from the discursive

processes of truth of creation by which we construct reality. Divisions between people in categories such as

gender, class and ethnicity is understood as a consequence of discursive processes, and these divisions are

ultimately impacts on people's living conditions and opportunities21. But when talks about gender equality come

forward, it is important to keep in mind that neither group of women or men as groups are uniform. All men and

all women do not have the same life experiences or living conditions. Therefore, it is central in gender equality

by ensuring that the various power structures can interact. The factors that gender plays a major role in the lives

18

Mjöll el.a 2009 p.60 19

Reyes, Paulina de los & Mulinari, Diana (2005) Intersektionalitet. Kritiska reflektioner över (o)jämlikhetens landskap, p.14 20

Andreas Tullberg, Föreläsning 7. ”Intersektionalitet och postkolonialism”, Lunds universitet, 2013-,09-18 21

Paulina de los & Mulinari, (2005), p.14p

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of the elderly, children, foreign-born, persons with disabilities, is such a big difference in what position a highly

educated Swedish-born woman has in Swedish society compared with an immigrant woman who has no

education22. Reyas and Mulinari illustrate this by exemplifying in highlighting the discourse in Sweden

conducted with the welfare state as the crystallization point. The political practice is to try to equalize the

inequalities from a class perspective which has also been based on seeing nations as an obvious division

category of the world23

. A division which itself created the conditions for racialization, which, from an ethnic

perspective rather have helped to perpetuate inequalities from this perspective24

. The emergence of the ideal

image "the Swedish welfare state" created the ethnicity point of view of a white Swedish hegemony. The post-

colonial perspective fits well into intersectionality quest to make power structures visible. considering this, Reys

and Mulinari sees “intersectionality as a theoretical perspective that forces us to look at reality with new eyes

and makes us question taken for granted knowledge of the social construction we live in25 , the intersectional

perspective of power shows the visibility of the simultaneous effect of different but interacting structures of

oppression, whether it is about gender, class and ethnicity26. Therefore, the concept of intersectionality is closely

linked to issues of power. Accordingly, Royes and Mulinari, starts Balibar and Wallenstein‟s Marxist approach

to define gender and race an ideological discourse aiming to create specific categories of people. For instance

people whose unpaid work is essential to the reproduction of capitalism and expansion27 and that patriarchy and

racism within the modern society are the remains of the previous capitalism where race and nation in their

analysis lays on the focus of capitalist system both in the national and global levels. The anti-racist critique of

feminism became the reason in originating intersectionality, even though, it‟s emancipator perspective

contributed an exclusionary practice against "non-white" women, an inherently paradoxical results28

. However,

in the western context the focus over gender power resulted in making the women's condition into a different

context, so even the non-white women in the west, where their condition has disappeared in a general idea of

"the other. The starting point of Balibar and Wallenstein, on a historical and political view is on race, nation and

class, and it‟s the national states inability to have created or should created a structure and institutional

mechanisms for economical, social and political exclusion29

which are the fundamental components in the

modern states constitutions and crystallize in institutionalized exclusion practices that make universalism to

political impossibility and its emasculation to a utopia. Balibar sees this paradox non-resolvable between

22

Paulina de los & Mulinari, (2005) , p.21p 23

Paulina de los & Mulinari, (2005) p.115pp 24

Paulina de los & Mulinari, (2005), p.83pp 25

Paulina de los & Mulinari, (2005), p.23 26

Paulina de los & Mulinari, (2005),p.8 27

Paulina de los & Mulinari, (2005) p.29 28

Paulina de los & Mulinari, (2005) p.54pp 29

Paulina de los & Mulinari, (2005) p.31p

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universalisms ideology meaning that in the modern world inequality that follows of racism and sexism are

remaining of pre-modern patriarchy. Likely, Royes and Mulinari sees the critics of universalism as links

between the post-colonial thoughts and basic conceptions within the feminist theories, giving them reasons to

uplift intersectional linking and associations, by which the theory challenges the traditional science meta-

narratives and its base in the male universalism30

. For instance, post colonial intersectionality illustrates the

systematic problems of cultural, linguistic, history and psychological boundaries created by the colonial powers.

Taking into account that colonialiazation did not only bring a new economical and social order on a world level

but also uplifted the modernization project of Europe into a model for the whole human kind, which connects

temporal and spatial perceptions of inequality construction. Hence, based on this process, one may consider this

systematically anonymizes, degrades and marginalize people in the so-called third world; therefore, it creates a

contrasting picture against the western ideals31

. Looking beyond a post-colonial perspective the current society

we live in is still a characterized colonial legacy. The linguistic meaning as an instrument which naturalizes our

world‟s perception of depoliticize, has disclosed the usage of spatial and temporal process in understanding a

shared world 32

as echoed by Sara Ahmad that intersectionality stays in the center that is to say between “now”

and “then” between “in-equal social spatial and between colonialism and imperialism. According to Charles

Tilly exploitation occurs from the outcomes of distribution of values based on power centralization and

systematic exclusion of groups whose efforts enable value creation33. Inequality is not something available in

society‟s production of people differences but is created between the groups in the process of deprivation of

resources and exclusion from power and influences that distinctions come into existence by referring to class,

gender and ethnicity which pervades the reproduction of the society and the opposites are based on the control

of the symbolic resources, such as education which gives the need to high educated/low educated34

. Tilly‟s

focus is mainly over materialistic conditions and social relations; therefore, if the discourses legitimates and

stabilizes inequality then it has less effect by understanding its reasons35 .alike, Tilly, Nancy Fraser‟s approaches

in defining what bases do gender, class and ethnicity differentiates from sexual identity, disability and political

belonging. Fraser distinctions two injustice systems: 1-socio-economic injustices and 2- cultural and symbolic

injustices. Gender is a central principle in the economic system due to boundary availability between public and

private spheres as well as between paid “productivity” work and unpaid “non-productivity” work36

. Within the

30

Paulina de los & Mulinari, (2005) p.67p 31

Paulina de los & Mulinari, (2005) p. 75p 32

ibid 33

Paulina de los & Mulinari, (2005) p 36p 34

Paulina de los & Mulinari, (2005) p.34pp 35

Paulina de los & Mulinari, (2005) p.37pp 36

Paulina de los & Mulinari, (2005) p.48p

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paid work sphere gender structures the hierarchy division among the well paid men areas and low wage women

dominated professions. Gender plays a specific role, on the one hand, it is historical and on the other hand, base

on hierarchy relations among paid productive work and reproductive unpaid work in home. The intersection at

this regard is between the market logic and identity formulation in institutional practices37

. However, it is not

only intersectionality among different power structures that creates power positions and inequality, it individual

acts and strategies as well as the institutional framework components in the process to the meaningful categories

such as, class, gender, ethnicity and sexuality38

. The intersectional perspective studies the problematic of how

“doing” of one and each of the mentioned categories contains a relationship before the others.

Finally, the systematic inequality that constructs close to intersectionality of class, gender, race or ethnicity

makes it necessary to develop theoretical perspectives relation between the international work sharing and

power asymmetries on a national level.

To conclude I as well see a strengthening connection to the critical discourse analysis as presented by de los

Reyes and Mulinari as the intersectionality perspective is in a dialectical relationship to discourse constituent

and discourse as constituted. De los Reyes and Mulinari discursive approach combined with the analysis of

material resources for an intersectional perspective of power turns to provide a lot significant in the visibility of

"(in) equality landscape."

37

Paulina de los & Mulinari, (2005) p.453p 38

Paulina de los & Mulinari, (2005) p.90

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Literature

Göransson, Håkan Gabinus & Flemström, Stefan & Slorach, Martina (2011) diskrimineringslagen, Stockholm:

Norstedts juridik.

Reyes, Paulina de los & Mulinari, Diana (2005) Intersektionalitet. Kritiska reflektioner över (o)jämlikhetens

landskap, Lund

Daniel, M (et. Al.). 2010. International human rights law. Oxford: Oxford University Press

Journal article

Arnardóttir, Oddný Mjöll, „A future of multidimensional disadvantage equality‟, in Oddný Mjöll Arnardóttir

and Gerard Quinn, (eds.) (2009) The UN Convention on the Rights of Persons with Disabilities: European and

Scandinavian perspectives, Martinus Nijhoff Publishers, Leiden

Bruce, Anna, „Jämlikhet och Icke-diskriminering‟, i Mänskliga rättigheter – juridiska perspektiv, Anna

Lundberg, ed. (2010) Liber, Stockholm

International conventions

UN General Assembly, Convention on the Rights of Persons with Disabilities : resolution / adopted by the

General Assembly, 24 January 2007, A/RES/61/106

13

UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United

Nations, Treaty Series, vol. 999, p. 171

International Covenant on Economic, Social and Cultural Rights: adopted by General Assembly resolution

2200A (XXI) of 16 December 1966

Convention on the Rights of the Child Adopted by General Assembly resolution 44/25 of 20 November 1989

Article from Internet

http://www.socialstyrelsen.se/Lists/Artikelkatalog/Attachments/9308/2007-131-8_20071319.pdf 2013-09-30 http://psych.colorado.edu/~willcutt/pdfs/Willcutt_Carlson_2005.pdf 2013-10-01 UN Committee on the Rights of Persons with Disabilities (CRPD), Implementation of the International Convention on the Rights of Persons with Disabilities: initial report submitted by States parties under article 35 of the Covenant: Sweden, 18 September 2012 christopher Gillberg; M Geijer-Karlsson (1983). Children born to mentally retarded women: a 1-21 year follow-up study of 41 cases. 0033-2917, GUP 156908

Lectures

Adreas Tullberg, 2013-09-17