THE IMPORTANCE OF A PLURALIST ACCOUNT OF DISCRIMINATION
[➡︎ read the rest of the book symposium on Sophia Moreau, Faces of Inequality: A Theory of Wrongful Discrimination (2020)]
In her book Faces of Inequality, Sophia Moreau poses the question: “why is inequality wrongful?” She answers in insightful and coherent ways that promise important applications in the development of equality doctrine, especially in international and regional human rights legal systems.
With reference to gender equality alone, the Committee on the Elimination of Discrimination against Women (the CEDAW Committee), established to monitor compliance with the UN Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW Convention), has developed its remedial equality jurisprudence through its various procedures. These include Concluding Observations on member country reports, General Recommendations (GRs) elaborating the content and meaning of equality rights, decisions determining violations on individual complaints, known as Communications, and Inquiry Reports on grave or systematic Convention violations.
The CEDAW Committee’s interpretive leadership to eliminate all forms of discrimination against women has bolstered regional and national norms on gender equality. Its regional influence can be seen in the formulation in the Inter-American, European and African human rights treaties, and by regional human rights treaty bodies’ engagement with the CEDAW Committee’s norms. An indication of the national impact is found in a study that reviewed domestic court decisions in multiple jurisdictions that cited the CEDAW Convention.
International and regional human rights systems have Special Rapporteurs, such as on violence against women, working groups that issue thematic reports, and commissions that issue guidance and reports on discriminatory abuses suffered by certain subgroups of women, including indigenous women. These reports bring important insights on the causes and consequences of different forms of gender discrimination in specific contexts.
In determining whether the right to gender non-discrimination has been violated, committees and courts tend to reason in intuitive or formalistic ways without grappling with the complexities of how and why gender discrimination is inherently wrongful. Some regional courts, such as the European Court of Human Rights, even resist claims of demonstrably harmful discrimination altogether.
Let me explore a few ways in which Sophia’s illuminating book could contribute to more robust articulations of why discrimination is wrongful. They include:
- Pluralistic explanations of why discrimination is wrongful,
- The heuristic role of prohibited grounds of discrimination, and
- The contexts of discrimination.
I will use the CEDAW Committee’s decision in the Alyne case as an example. The Committee held Brazil accountable for discriminating against Alyne, an impoverished Afro-Brazilian woman, on account of her sex, race and socio-economic status, for its failure to prevent her death in childbirth. The Committee’s reasoning focused primarily on the fact that Alyne was denied access to the health services essential to preventing or relieving the hemorrhage that was the precipitating cause of her death. Transport to the hospital was seriously delayed when she was denied an ambulance and unable to pay for other transport, and when she was eventually admitted to the hospital, emergency care was not made available.
Pluralistic explanations of why discrimination is wrongful
Sophia explains that “discrimination can be wrong for different reasons, reasons that we can trace to fundamentally different kinds of problems with particular acts or practices. It may be that one and the same practice can be wrong for several different reasons. But these reasons are not reducible to some single sort of disvalue” (ch. 1.4). She elaborates that discrimination can be wrongful because it
- unfairly subordinates,
- infringes deliberative freedom, or
- denies basic goods.
These are all ways of failing to treat a person as equal, one or more of which is necessary for an act or practice to be wrongful.
In Alyne’s case, there was a complex interaction of discriminatory practices and effects rather than one intentional act of discrimination. The CEDAW Convention prohibits discrimination in its purpose or effect, so proof of an intention to discriminate is not required to show breach of the Convention. The critical criterion is whether a difference in treatment impairs women’s enjoyment of their rights.
Sophia’s explanation of the various ways in which the failure to treat a person as equal is helpful to understanding how discriminatory practices impair enjoyment of rights. Indeed, the failure to provide Alyne a basic good, essential maternity services, was the final nail in her coffin. Sophia elaborates on a common sense notion of a basic good, that is a good that is objectively necessary for survival. Her criteria of a “basic good” for a particular person are “if and only if the following conditions are satisfied:
- Access to this good is necessary in order for this person to be a full and equal participant in society, and
- Access to this good is necessary, in order for this person to be seen by others and by herself as a full and equal participant in her society” (ch. 4.1).
She explains that “basic goods are basic not by virtue of their objective value or their connection to our survival, but by virtue of their impact on a particular person’s ability to participate as an equal in their society. So when someone is left without one they are unable to be, or unable to see themselves as, an equal. In this particular sense, then, they are not treated as an equal.” (ch 4.3)
Given the magnitude of the challenges health care systems face to deliver essential health services, Sophia’s notion of “basic” might seem utopian. However, had there been an understanding that timely access to essential maternity care is necessary for Alyne “to be a full and equal participant in society” and “to be seen by others and herself as a full and equal participant” specifically in the health care system, Alyne might be alive today.
In addition to Sophia’s insightful vision of basic goods and how their denial discriminates, her chapters on Unfair Subordination and the Relevance of Deliberative Freedom illuminate further forms of wrongful discrimination.
In her chapter 2 on Unfair Subordination, Sophia explains four factors, underlined below, that contribute to unjust subordination (ch. 2.4). As applied to Alyne, they include the following: as a poor Afro-Brazilian woman who was pregnant, Alyne was unjustly subordinated because she had less social and political power than white Brazilian men in the health care system. As a poor, black pregnant woman she was treated with less consideration. Her “explanations of her symptoms did not make her a compelling candidate for urgent blood and urine tests and were not recognized by health care professionals as sufficiently serious for her to be a candidate for immediate transfer” to emergency obstetric care.
As a poor pregnant Afro-Brazilian woman, she was stereotyped as incapable of agency, especially of making medical decisions for herself. Like the Rebecca Lipe case presented in chapter 2, Alyne’s misdiagnosis was based on false, stereotyped assumptions about her complaints and her behavior that made her actual pain and its causes invisible or inconsequential to the health care providers (ch. 2.5). As Sophia explains, “others see what they had expected to see in a person of that type” (ch. 2.5).
Exacerbating these factors were structural accommodations in place in Brazil that “tacitly accommodated the needs of a dominant group while overlooking the needs of at least some members of the subordinate group” (ch 2.4, last para). As is evident from the unusually high maternal mortality rates prevalent in Brazil at the time, the Brazilian health care system served the needs of white Brazilian men but failed to accommodate the sex-specific health care needs of pregnant women.
Sophia explains that structural accommodations include “policies, practices, and physical structures that tacitly accommodate a more privileged group’s needs at the expense of the subordinate group or groups.” In so doing, she notes that structural accommodations to the more privileged social groups “make their interests and needs seem normal and the interest of other groups seem exceptional” (ch. 2.1).
The idea of structural accommodation enables one to stand back from specific discriminatory practices, to understand the ways in which societies are structured to “cater to the needs and circumstances of other, more powerful social groups” (ch. 2.5), and overlook, or even invisibilize, the interests of more marginalized groups. Understanding structural accommodations as privileging the more powerful would have enabled the CEDAW Committee to suggest how the health care system might be restructured to cater to the health interests of Alyne and similarly situated women.
The CEDAW Committee’s decision in this case would have had stronger explanatory power had it articulated these four factors in explaining why Alyne was unjustly subordinated. The decision would also have been stronger had it enjoyed the advantage of considering Sophia’s chapter 3, The Relevance of Deliberative Freedom. Sophia defines deliberative freedom as “a power not to be bound by or burdened by certain assumptions and certain costs—and those who lack such powers are in a very real sense unfree, usually across many social contexts” (ch. 3.2). Alyne was burdened by the health care system’s mistaken assumptions that imposed tragic costs. Sophia argues that those who are so burdened should not have to bear the costs of other people’s mistaken assumptions. That burden denied Alyne her deliberative freedom and illustrates another reason why the discrimination she suffered is wrongful.
The Heuristic Role of Prohibited Grounds of Discrimination
Throughout her book, Sophia raises important questions about the utility of prohibited grounds: “…where the wrongness of discrimination stems from unfair subordination, then it is arguable that our lists of prohibited grounds should include other traits – traits that are not commonly added to such lists, such as physical appearance, for instance, and social condition or poverty” (ch. 2.5). The CEDAW Committee highlighted the various grounds on which Alyne was discriminated against, including certain immutable grounds such as her sex and race, mutable grounds such as her pregnant status, and potentially mutable grounds such as her poverty.
In discussing the role of prohibited discriminatory grounds in the exercise of deliberative freedom, Sophia observes that: “Surely what matters is simply whether a particular discriminatory practice denies someone a deliberative freedom to which they have a right. Is it necessary to ask, in addition, whether the practice has treated them differently on the basis of some recognized prohibited ground?” (ch. 3.5).
She answers her question by explaining that “although this is not a necessary further step, the prohibited grounds of discrimination do play an important heuristic role in cases involving infringements of a right to deliberative freedom. Or rather, they play a number of heuristic roles. … When a person lacks a particular deliberative freedom, they are forced to have certain traits of theirs – whether it represents an actual part of them or only part of them that others presume is definitive of them – always before their eyes” (ch. 3.5).
The question needs to be asked whether the Committee’s Alyne decision would have been more persuasive had it emphasized how certain practices subordinate and how they denied Alyne her deliberative freedom, as opposed to simply determining the existence of the prohibited grounds.
Sophia elaborates that prohibited grounds do play a role when “they point us towards those individuals who are more likely, as a result of lacking a certain resource or opportunity, to be unable to be, or unable to be seen as, equals in their society. They also point us towards some of the reasons why the lack of these resources or opportunities will have a distinctive impact on the social standing of these particular individuals” (ch. 4.4). Where these reasons exist for other target traits, it might suggest that they too might be added to the list of prohibited grounds, as one scholar has suggested.
The Contexts of Discrimination
Sophia emphasizes that social contexts are key to understanding discrimination (ch. 1.5). She suggests that “it is only if we take as our data the real cases of discrimination and the real responses of discriminatees in their full, rich social context, that we will be able … to have as full and accurate a picture of wrongful discrimination” (ch. 1.5). She suggests that the relative positions of the discriminating agent and the other person who is discriminated against are important: “In order to assess whether someone’s act puts down another, we need to look, not just, and not primarily, at the institutional roles of these two people relative to each other and the powers these roles confer on each of them, but also to the social groups to which each belongs and the relationship of these groups to each other” (ch. 2.3).
She illustrates the ecology of discrimination through the helpful analogy of understanding how animals interact in and with their habitats, including for instance how their bird songs change over time (ch. 1.5). How might the various ecologies of discrimination be explained? Why do certain forms of discrimination grow in one context and not in another?
In examining the ecology of discrimination, it might be useful to explore what fuels wrongful discrimination and what feeds inequality. Context in circumstances like Alyne’s might usefully be explored by determining what could achieve equality at the level of clinical care, at the health systems level and at the level of underlying determinants of health. The CEDAW Committee did point to the need for extensive and equitable health systems improvements, but was unable, given how the case was framed, to address critical factors at the level of clinical care. The way the Committee addressed underlying determinants of social inequality was to point to its proxies, the targeted traits of sex, race, pregnancy and socio-economic status. Had the Committee acted as a domestic trial court, it might have explored how certain practices subordinated Alyne and how they denied her deliberative freedom. However, given its distance from the facts and how the case was framed, this might have been a bridge too far.
In determining whether the right to health has been served in a specific context, it has been suggested that health status, health service and structural indicators might be employed. In Alyne’s case, this would require examining the health status indicators, particularly the maternal mortality rates prevailing for her subgroup of women, the health service indicators, such as the number of trained birth attendants who were available in her municipality, and the structural indicators, such as whether sustainable governmental budgets for maternity care were in place.
Context is indeed important to understanding why discrimination is wrongful. Sophia helpfully points to some of the ways of knowing how and why particular contexts matter to determining the wrongfulness of discrimination, and opens pathways to further exploration. Whether the approaches taken in the context of the equal exercise of the right to health are useful to understanding contexts of inequality more generally remains an open question that Sophia’s analysis, scholarship, and vision encourage us to answer.
In celebrating this book, this paper has tried to suggest a few ways that Sophia’s enriching insights could be applied to Alyne’s case, whether it be through a pluralistic explanation of why the discrimination she suffered is wrongful, the heuristic role of prohibited grounds of discrimination in her case, and the contexts in which the discriminatory practices took place. Her book allows one to see dimensions of the forest created by the trees of discriminatory practices to better understand environments of wrongful inequality.
* Professor Emerita & Co-Director, International Reproductive and Sexual Health Law Program, University of Toronto.
 See generally Marsha A. Freeman, Christine Chinkin and Beate Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (OUP, 2012), 2ed forthcoming OUP 2021.
 For a list of the CEDAW General Recommendations, Communication decisions and Inquiry reports, see https://www.ohchr.org/EN/HRBodies/CEDAW/Pages/CEDAWIndex.aspx,
 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (the Convention of Belém do Para), adopted 9 June 1994 33 ILM 1534.
 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol), adopted 11 July 2003, entered into force 25 November 2005, OAU AHG/Res.240.
 Christopher McCrudden, “CEDAW in National Courts – A Case Study in Operationalizing Comparative International Law Analysis in a Human Rights Context” in Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, Mila Versteeg, eds. Comparative International Law (OUP, 2018) 489-500.
 See, e.g., “Report of the Special Rapporteur on violence against women, its causes and consequences on a human rights-based approach to mistreatment and violence against women in reproductive health services with a focus on childbirth and obstetric violence” (2019) UN Doc A/77/137.
 See, e.g., United Nations Human Rights Council, Report of the Working Group on the issue of discrimination against women in law and in practice, A/HRC/29/40, 2 April 2015.
 See, e.g., General Comment No. 2 on Article 14.1(A), (B), (C) and (F) and Article 14.2(A) and (C) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa” (November 28, 2014).
 See, e.g., Barabara Havelková, Judicial Scepticism of Discrimination at the ECtHR, in Hugh Collins and Tarun Khaitan (eds.) Foundations of Indirect Discrimination Law (Oxford: Hart, 2018) 82-103.
 Alyne da Silva Pimentel Teixeira (deceased) v Brazil, Committee on the Elimination of Discrimination against Women, U.N. Doc. CEDAW/C/49/D/17/2008, Communication No.17/2008, August 10, 2011 (available online).
 Rebecca Cook, “Human Rights and Maternal Health: Exploring the Effectiveness of the Alyne Decision” (2013) 41(1) Journal of Law, Medicine and Ethics 103-123.
 Andrew Byrnes, “Article 1” (Discrimination against Women) in Marsha Freeman, Christine Chinkin and Beate Rudolf (eds.) The UN Convention on the Elimination of All Forms of Discrimination against Women: A Commentary (Oxford: Oxford University Press, 2012) 51-70, 60, 65.
 Cook, note 14 at 109.
 See generally Meghan Campbell, Women, Poverty, Equality – The Role of CEDAW (Oxford: Hart Publishing, 2018).
 P. Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, to the United Nations Economic and Social Council 62nd session (March 3, 2006), E/CN.4/2006/48 ¶¶ 54–56.