Understanding Equal Treatment and Anti-Discrimination Legislation

Over the last 30 years, so called “anti-discrimination” or “equal treatment” legislation has gradually been adopted by all European countries and more recently also at the EU-level.

“Anti-discrimination” and “equal treatment” sound good and desirable. However, if we look at current legislation, one increasingly notices some worrying tendencies: legislation that wants to create equality is, in fact, creating injustice. The prohibition of “discrimination” is in reality creating new discrimination, as a side-effect.

Article 19 of the Treaty on the Functioning of the European Union prohibits discrimination based on nationality, and empowers the EU institutions to adopt measures combating discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This means that the EU has the legislative power to prohibit and sanction “discrimination” on all the mentioned grounds. But what does “discrimination” actually mean?

Discrimination, in common perception, is often taken as treating one person worse than others and is related to the subjective perception of that treatment. Despite the fact that such an attitude can be morally and socially wrong, it is not always prohibited by law. Traditionally, anti-discrimination was a vertical obligation, essentially meaning equality before the law, the protection of the individual from unfair or unjustified treatment by State authorities. Unfair or unjustified treatment essentially means that it is infringes the principle of justice, which requires that like cases should be treated alike and unlike cases should be treated differently. Hence, differential treatment demands a rational and justifiable basis.

However, recently throughout Europe we notice a radically different understanding of what should be prohibited by law: The most radical example for this at the EU level is a Directive that is currently being negotiated in the Council of the EU: It is called Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation and focuses on the regulation of the social behaviour of and between individuals.

This Directive and equally several legal initiatives at the national levels enter into the private sphere, into relationship between individuals. Privacy shall henceforth be controlled and regulated by (EU) law and undesired behaviour shall be reported to public “equality bodies” and sanctioned. The burden of proof shifts to the accused one, which often constitutes a major challenge for the alleged “perpetrator”. The concept of equality shifts from a vertical relationship State-individual (equality before law, which can be enforced by law) to a horizontal relationship individual-individual (which constitutes our privacy).

Why is this such a radical and even dangerous shift? Whereas a black man and a white woman involved in a car accident should not be treated differently by a police because of their respective skin colour (vertical dimension), the black man should have the right to chose whether he wants to be friends with the white woman or not without being accused of discrimination (horizontal dimension). Whereas tenancy law should be applied to every tenant equally, a house owner should have the right to rent his house rather to a family than to a homosexual couple without being accused of discrimination. A businessman should have the freedom to do business with whoever he wishes without being held accountable for his decision by anyone. A Christian preacher should have the freedom to teach the Christian doctrine about marriage and family without being accused of discrimination by someone who doesn’t think the same. Fundamental freedoms and the principle of justice are endangered in Europe, by the current draft Directive and national legislation, because it seeks to establish a concept of equality that is not anymore based on the principle of justice, but that reverses it: Equality shall henceforth mean to treat everybody alike, irrespective of objective differences. Different treatment of different cases, for example a married couple and a homosexual couple, shall be deemed discriminatory. This is far away from what we understand to be essential for a free and just society.

After all, it is the people who are responsible for the societies they live it. Equal treatment utopia is too dangerous to let it slip through uncommented!

If you wish to read more on the draft Directive as it cuts back personal freedom in an unprecedented manner and seriously risks creating injustice instead of justice, we recommend you read an analysis of the draft Directive here.


Sophia Kuby is the executive director of the Brussels-based NGO European Dignity Watch. For free up-to-date information for the European Institutions, please sign up here.