Grounds of Discrimination: Towards an Inclusive and Contextual Approach

Abstract

This article explores recent developments in the judicial interpretation of the grounds of discrimination in human rights law. The author maintains that courts have demonstrated a willingness to accord a large and liberal interpretation to the enumerated grounds of discrimination, drawing on examples involving discrimination on the basis of sex and disability. Nevertheless, courts have not always been willing to interpret the categories of human rights law expansively. Recently, it has been necessary to turn to the Canadian Charter of Rights and Freedoms, with its analogous grounds protection, to extend the scope of prohibited grounds in human rights legislation.

A further dimension of the legal interpretation of the grounds of discrimination concerns the tension between the symmetrical and neutral language of the grounds of discrimination and the asymmetrical and unequal experience of the realities of discrimination between the groups targeted by the specific grounds.

Legal protections against discrimination on the basis of sex or race, for example, do not convey the historical reality of inequality faced by women and people of colour. One response to this tension can be found in recent judicial efforts to contextualize antidiscrimination law as an integral part of our evolving understanding of substantive equality. Finally, the article explores the complexities of inequality experienced by individuals who are members of more than one group that has been historically disadvantaged and considers the extent to which a grounds-based categorical approach is attentive to the realities of multiple discrimination.

Keywords: ground of discrimination, sex, disability, interpretation, neutral language, realities of discrimination