Abstract
The multi-ground anti-discrimination regimes, such as the one adopted in the European Union (EU) equality directives, have to reconcile the potentially conflicting aims of ‘integration’ and ‘diversity’ between the multiple protected grounds. A more systematic account of how the different grounds of prohibited discrimination relate to one another is needed to explain the differing scope of protection in relation to different grounds as well as to solve potential conflicts between the protected grounds. This article first briefly reiterates how the issue of ‘inequality in equality’ emerges from the EU equality directives. It will then move on to examine how these so-called ‘equality hierarchies’ can be understood in the light of the contemporary discrimination theory. From this theoretical analysis follows the argument that the relationships between different grounds of prohibited discrimination are shaped by the complexity of social identities that underlie the protected grounds. Any attempt to systematize the relationships between the protected grounds therefore stands or falls depending on how well it succeeds in taking into account this complexity. Finally, the article outlines how the idea of subjectivity as ‘identity through agency’ can respond to the complexity of identity formation and provide a much-needed substantive standard for normative ordering between the protected grounds in multidimensional anti-discrimination law.
Keywords
Introduction
The term ‘inequality in equality’ refers to situations in which different grounds of prohibited discrimination are treated differently in legislation and are thus placed into a normative hierarchy with one another. These so-called ‘equality hierarchies’ are problematized in modern anti-discrimination law which promises to reconcile the increasing number of protected grounds with the idea that all grounds are equally valuable and worth protection. At the same time, however, the diversity of legally recognized inequalities calls into question the view that all grounds must be treated alike. Multi-ground anti-discrimination regimes therefore leave us with the question of how different grounds of prohibited discrimination relate to one another both in practice and in theory. This quest for more coherence within anti-discrimination legislation is of particular relevance to European Union (EU) anti-discrimination law, where a series of new equality directives has advanced a more integrated multi-ground approach to prohibited discrimination.
This article first outlines how the European anti-discrimination framework still falls short of a consistent theoretical account of how different grounds of prohibited discrimination relate to one another. This analysis highlights the need for further research on how to reconcile the seemingly conflicting aims of ‘integration’ and ‘diversity’ within multidimensional anti-discrimination regimes. In particular, it is important to consider whether the goal of integration requires equality between the grounds, and if so, how this aim can be reached whilst simultaneously maintaining the adequate diversity between different grounds. The remaining sections of this article will engage in this task, first, by clarifying the conceptual distinction between the harmful equality hierarchies and the necessary ordering in multidimensional discrimination law and, then, by considering what tools the contemporary discrimination theory can provide for normative ordering in this context.
This insight into critical discrimination theory results in the argument that the complexity of conflicting social identities must play a central role in systematizing the relationships between the protected grounds and that more substantive normative principles are needed to accommodate this complexity into discrimination law. The final section of this article will articulate one such principle by discussing how the constitution of subjectivity as a dynamic and relational process can provide a substantive standard for assessing the potential clashes between different grounds of discrimination and for deciding when differential treatment can be justified between the protected grounds better than the notions of identity, disadvantage or agency alone would do.
Inequality between the protected grounds: A European perspective
The current EU anti-discrimination legislation provides an interesting starting point for the analysis of equality hierarchies. The recent legislative developments in the field of non-discrimination and equality have introduced a multi-ground approach to prohibited discrimination at the EU level. However, these developments have all but solved the issue of inequality in equality in EU law, as will be seen in this section. The way in which the relationships between the protected grounds are defined in the EU equality directives has considerable implications for how these questions are addressed in national anti-discrimination frameworks. This is so despite the fact that the EU legislative framework only provides the minimum standard for protection and the Member States are free to implement more far-reaching anti-discrimination legislation. Explaining how equality hierarchies emerge from the current EU equality directives and what responses academic commentary has provided to this dilemma will therefore lay the ground for the theoretical analysis of equality hierarchies in this article.
The hierarchy of equality has underpinned European discrimination law from the outset. For several decades, the EU law only included the prohibition of discrimination on grounds of nationality and the principle of equal pay between women and men. The inclusion of Article 13 in the 1997 Treaty of Amsterdam (now Article 19 TFEU) changed this situation and mandated the EU legislature to ‘take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. 1 Unlike the prohibition of nationality discrimination and the principle of equal pay, this Treaty article has no direct effect. But it has provided the basis for four new equality directives. The so-called Race Equality Directive (2000) prohibits discrimination on the grounds of race and ethnic origin. 2 The Employment Framework Directive (2000) prohibits discrimination on grounds of disability, sexual orientation, religion and belief and age in the context of employment. 3 The Gender Goods and Services Directive (2004) extended gender equality beyond employment and addressed gender discrimination in regard to the provision of goods and services. 4 Finally, the Recast Directive (2006) consolidated and updated the earlier gender equality directives in the areas of employment and vocational training. 5
The EU anti-discrimination framework has remained diverse in regard to legislative instruments that are used to address different types of discrimination. Some grounds, such as sex and racial and ethnic origin, are covered by specific directives, whilst other grounds, including sexual orientation, religion or belief disability and age, are addressed in a multi-ground legislative instrument. The use of ‘multi-ground’ instruments can indicate that all grounds are treated as equally valuable. 6 However, it has also been noted that the fact that some grounds are protected in individual directives may in itself foster a hierarchical approach to equality and non-discrimination in European discrimination law. 7 This is important because the original Green Paper (2004) on ‘Equality and Non-Discrimination in an Enlarged European Union’ emphasized ‘the need to develop a coherent and integrated approach towards the fight against discrimination’. 8 This document also underlined that ‘[w]hile recognizing the specific challenges faced by different groups, this integrated approach is based on the premise that equal treatment and respect for diversity are in the interests of society as a whole’. 9
A more explicit commitment to the equality of all grounds can be found in the Council Decision establishing a Community action programme to combat discrimination (2001 to 2006), which states that ‘the different forms of discrimination cannot be ranked: all are equally intolerable’. 10 Notwithstanding these references to integrated anti-discrimination law and equality between all grounds at the level of policymaking, academic commentary has used the term ‘patchwork’ to describe EU equality and anti-discrimination law. 11 This legislation is consistent in so far as the provisions on different types of discrimination and other forms of prohibited behaviour are concerned. 12 For instance, similar definitions of ‘direct discrimination’, ‘indirect discrimination’ and ‘harassment’ are included in each of the four equality directives. 13 At the same time, however, the EU equality directives contain several differences in regard to their material scope of application, accepted exceptions to equal treatment and enforcement mechanisms. There is no need for this article to duplicate the detailed legal analysis of equality hierarchies as presented in academic literature. 14 What remains of this section will just provide two examples of how this concern about equality hierarchies has emerged from the EU anti-discrimination framework.
Example 1: Different material scopes of application
Differences in the material scope of application between the 2000 EU equality directives are often viewed as the main indicator of equality hierarchies in the EU law. The Race Equality Directive applies to the employment-related situations, as well as to social protection, including social security and healthcare, social advantages, education and to access to and supply of goods and services that are available to the public, including housing. 15 The Framework Employment Directive only covers access to employment, self-employment and occupation, including selection and recruitment conditions and promotion, as well as access to vocational guidance, vocational training and retraining, including practical work experience. 16 These differences mean that discrimination on the grounds of race and ethnic origin must be banned in many contexts in which discrimination on grounds of disability, sexual orientation, religion or belief and age must not. Here the main question is whether the grounds included in the Framework Employment Directive should be expanded to apply beyond the employment context to other relationships between private actors. This question is rooted in the deeper theoretical uncertainty about when anti-discrimination law should apply only vertically in the public–private relationships and when it should also cover horizontal relationships between private actors.
In many legal systems, fundamental rights, including the constitutional right to equality, do not directly bind private bodies or individuals. It is instead a task of the legislature to adopt specific statutory norms to control fundamental rights violations by private actors. 17 But the public–private divide has become increasingly difficult to maintain in many situations. Discrimination is often viewed as a human rights violation that is ‘as likely to result from private interference as from state action’. 18 The horizontal application of the non-discrimination principle in the EU equality directives can therefore be studied as part of these wider developments in European and international human rights law in regard to the horizontal effect of fundamental and human rights on private actors. It has been noted that, although the EU equality directives do not challenge the public–private distinction at the level of constitutional rights, they require the Member States to adopt legislation, which applies to certain forms of discrimination ‘without distinguishing between public and private perpetrators of discrimination’. 19 However, the potential ‘value conflicts’ in regard to the horizontal application of the non-discrimination principle in the EU equality directives can arguably be limited by adopting legislation which only applies to ‘private activity within the public sphere’. 20
In the context of EU law, this issue was addressed by the Commission’s 2008 proposal for the New Equal Treatment Directive, which aimed to extend the protection against discrimination based on religion or belief, disability, age or sexual orientation ‘outside the labour market’. 21 In practice, the protection against discrimination on these grounds would have covered social protection, including social security and healthcare, social advantages, education and access to and supply of goods and services that are available to the public, including housing. 22 However, the original proposal would have applied to transactions between private individuals only in so far as they are performing ‘professional or commercial activities’. 23 The amended version of the proposal qualified this further by stating that the directive would apply to private transactions ‘only in so far as they are performing a professional or commercial activity defined in accordance with national laws and practice, outside the context of private and family life’. 24 Despite these qualifications, several Member States still did not agree with the adoption of the proposal. 25
Example 2: Differences in the accepted justifications
The accepted justifications for differential treatment in relation to different grounds of prohibited discrimination form another major indicator of equality hierarchies. The EU equality directives include both general and ground-specific justifications. Both the Framework Employment Directive and the Race Equality Directive include an exception clause concerning ‘genuine and determining occupational requirements’.
26
These exceptions can be justified if the objective is legitimate and the requirement is proportionate.
27
However, Article 2(5) of the Framework Employment Directive also states that, the directive:
shall be without prejudice to measures laid down by law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for health protection and for the protection of the rights and freedoms of others.
The ground-specific exceptions in the Framework Employment Directive include Article 3(4), which allows the Member States to exempt employment in the armed forces from the prohibition of age discrimination and disability discrimination, and Article 6(1), according to which differential treatment on grounds of age does not constitute prohibited discrimination if it can be objectively justified ‘by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that are appropriate and necessary’. These provisions are exceptional because, in the context of other grounds, direct discrimination can only be justified under explicit and specific statutory exceptions. In addition to these two exceptions, Article 4(2) of the Framework Employment Directive includes an exception concerning religious liberty. This provision holds that churches and other bodies with religious ethos will not commit unlawful discrimination ‘where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupation requirement’, as long as this does not ‘justify discrimination on another ground’. It has been argued that the requirement to ‘act in good faith and with loyalty to the organization’s ethos’ in Article 4(2) of the Framework Directive is obscure and that a more explicit provision is needed to ensure that the recourse to religious liberty does not indirectly justify other forms of discrimination. 29
Further differences between the protected grounds occur in regard to the provisions concerning positive action and enforcement measures. The references to positive action in Article 5 of the Race Equality Directive and Article 7(1) of the Framework Employment Directive focus on preventing and compensating for disadvantages linked to the protected grounds. 30 This can be contrasted with Article 157 TFEU on equal pay between men and women, which allows the use of ‘specific advantages’ as a means of supporting the ‘under-represented’ sex in their attempts ‘to pursue a vocational activity’. 31 Similarly, Article 7(2) of the framework Employment Directive explicitly allows measures that are adopted for the protection of health and safety of people with disabilities at work or for safeguarding or promoting their integration into the working environment. 32 In regard to enforcement mechanisms, further differences emerge in the provisions concerning the establishment of independent equality agencies. The current requirement of equality bodies only concerns racial and ethnic origin and sex, although the Commission’s Proposal for a New Equality Directive would have changed this in relation to religion or belief, disability, age or sexual orientation. 33
These insights into the differences between the protected grounds in the EU equality directives show that the issue of inequality in equality is indeed relevant to European discrimination law. It has been seen in this section that the emergence of equality hierarchies is a complex phenomenon, which penetrates the EU anti-discrimination framework as a whole, including the reach of actual provisions and the accepted exceptions for them, as well the implementation and enforcement mechanisms. The central question to the EU equality directives is whether the objectives of EU anti-discrimination law can explain and justify the emergence of equality hierarchies, as discussed in this section. This analysis can benefit from a clearer understanding of what role identity, agency and subjectivity play in justifying multidimensional discrimination law. First, however, it is important to have a closer look at how the existing differences between different grounds of prohibited discrimination are conceptualized in academic commentary.
Theorizing inequality in equality: In search of more coherence within diversity
Equality hierarchies can be seen as a threat to integration and ‘equality between grounds’ as the core ideals of modern anti-discrimination law. At the same time, however, the very idea of multi-ground discrimination law seems to necessitate some concept of diversity between the protected grounds both because different grounds may be in conflict and because different grounds of discrimination address different social problems. 34 We must therefore understand inequality in equality both as a problem and as a potential solution to the practical challenges that arise from the creation of multidimensional anti-discrimination regimes. This section will examine what theoretical responses the reality of equality hierarchies has fostered in academic literature and whether these responses can sufficiently distinguish harmful equality hierarchies from the necessary ordering in the EU equality directives. It will be seen that, whilst the existence of equality hierarchies is widely acknowledged in European discrimination law, more jurisprudential analysis is still required to explain how the protected grounds relate to one another.
The prolonged legislative cul-de-sac with the 2008 proposal for the new equal treatment directive underlines the importance of understanding how different grounds of prohibited discrimination relate to one another in European discrimination law. Namely, much of the reluctance on the side of certain Member States to accept this proposal came down to the argument that the prohibitions in regard to some grounds should be more lenient than in regard to other grounds. 35 The central question that arises from the multi-ground approach to discrimination in the EU equality directives is therefore whether some types of discrimination deserve more secure protection than others. 36 Further analysis is needed on whether the current differences between the protected grounds are ‘arbitrary’ or whether they can be justified on the basis of the ‘specific challenges faced by different groups’. 37 In practice, both factual and normative differences between the protected grounds have been offered to explain and justify these differences in the legal protection.
About the factual and normative differences between the protected grounds
Some commentators suggest that all of the protected grounds ‘should be treated the same way’ and that inherent identities should never allow ‘less favourable treatment unrelated to ability’. 38 However, this line of reasoning leaves unanswered the question of whether equality between grounds, even if desirable, actually follows from formal equality, that is, the idea of treating all grounds alike. The idea of ‘one size fits for all’ is arguably mistaken because it falsely assumes the ‘sameness or equivalence of the social categories connected to inequalities’. 39 It is widely acknowledged in discrimination law scholarship that substantive equality may require differential treatment in different situations. Similarly, advancing equality between different grounds of prohibited discrimination might require different treatment and different approaches between the protected grounds. The differences in protection may accordingly be the ‘most effective’ approach to the fact that there are ‘genuine differences’ between the protected grounds. 40
First, it has been suggested that different conceptions of equality can explain some of the differences between different grounds of discrimination in the EU equality directives. 41 The different meanings of equality from ‘consistent treatment’ to ‘redistribution’ and ‘recognition of identity’ can in principle justify a variety of approaches to the scope of and the accepted exceptions to prohibited discrimination. 42 However, this approach still fails to explain why a certain conception of equality would underlie some grounds but not the others. Moreover, it has been argued that the protection against discrimination under the EU equality directives is limited ‘by the way in which equality is envisaged within them’ 43 and that the conception of equality in the EU Equality Directives is ‘rather similar, if not unified’ 44 . The optimistic interpretation is that all four directives now build on the shared conception of substantive equality. 45 However, for this very reason, the mere reference to the principle of equality does not provide much help for clarifying the relationships between different grounds of discrimination in the EU equality directives.
Second, more concrete differences in the protected characteristics may also explain the differences between the protected grounds. Some of the protected characteristics can arguably change the person’s ‘ability’ or ‘availability’ to accomplish a specific job or use a specific good or service, whereas other characteristics have been described as ‘purely ascriptive’. 46 Gender, race and ethnic origin and sexual orientation are usually regarded as unrelated to the person’s ability and availability. Sex and religion may have at least temporal effects on ability and availability, whilst disability and age may more permanently limit the person’s ability and availability. 47 The factual differences in regard to different grounds of discrimination can also be examined in relation to their ‘visibility or invisibility’ or in relation to ‘the objectivity by which they may be ascertained’. 48 Some categories, such as gender and race, which only ‘exist as ascriptions’, can then be contrasted with other characteristics, such as sex, age and disability, which are ‘referable to a biological basis’. 49 Last, some characteristics, such as religion, ethnicity and political convictions, can also be seen as in part indicating ‘a chosen life style’. 50
Recognizing these differences in ‘availability’, ‘ability’, ‘visibility’ or ‘choice’ in regard to different protected grounds supports the argument that differential treatment can sometimes contribute to a more equal outcome. 51 However, this statement raises the question of how those grounds which actually may affect the person’s ability or availability are treated in relation to those grounds that protect ‘inherent identities’, as discussed above in this section. The picture is complicated further because some grounds of discrimination, such as some forms of disability, may protect inherent identities whilst also affecting ability. It is therefore controversial whether these criteria are actually suitable for distinguishing between the protected grounds. Whilst differences in regard to different grounds of protected discrimination are not ‘necessarily wrong’, 52 more attention should be directed to why some grounds would need stronger protection. Some of these issues can be solved by interpretation, but more fundamental questions may also require legislative intervention. 53 In so far as the problem of equality hierarchies cannot be overcome by the consistent interpretation alone, it is also necessary to engage with a more theoretical analysis of how the different grounds of prohibited discrimination relate to one another.
A quest for more order between the protected grounds
Theorizing inequality in equality requires a more nuanced understanding of what substantive principles can be used for normative ordering between the protected grounds along with the above-mentioned notions of availability, ability, visibility and choice. This task is further complicated by the fact that multiple different rationales can be used to justify the requirement of equal treatment and non-discrimination in relation to specific grounds. These rationales can, for instance, include removing social constraints, distributing resources, overcoming stereotypes and advancing autonomy or dignity. 54 The diversity of normative and factual rationales underlying the grounds of prohibited discrimination in the EU equality directives has already been acknowledged in academic commentary. 55 The missing bit of this theoretical discussion is how the diverse rationales can be seen as part of a coherent and consistent legislative framework and what normative standards can be used to further systematize the relationships between the protected grounds within that framework.
Some suggest that prioritizing the protection against discrimination on the grounds of race, ethnic origin and sex can find support from international human rights law. 56 It has also been proposed that the notion of ‘suspect grounds’ as adopted by the European Court of Human Rights (ECHR) could be used in the EU equality law. This argument holds that, in the case of ‘suspect grounds’, the relevant legislation would cover ‘a wide area’ with ‘only limited and prescribed exceptions’. 57 But the Strasbourg Court uses objective justifications leniently and even in the case of direct discrimination. It therefore seems unlikely that the ECHR system could provide sufficient guidance for EU anti-discrimination law in this respect. It has been noted that equality hierarchies might also emerge from ‘political pragmatism’. 58 Other explanations for different levels of protection include ‘hidden’ goals and agendas that may differ between the protected grounds and ‘greater familiarity’ with some grounds. 59
It is clear in light of this analysis that inequality in equality appears both as a problem and as a necessity in integrated multi-ground anti-discrimination regimes. In order to solve this paradox, it is important to search for new conceptual and substantive tools for distinguishing the harmful and oppressive hierarchies from the desirable normative ordering between different grounds of discrimination. It is possible to analyse each ground separately and compare these findings with one another. However, this piecemeal approach might not take us very far in the context of multidimensional equality law. Most scholars who attempt to clarify the relationships between different grounds of discrimination agree that more theoretical and philosophical analysis is still needed in this context. Moreover, the very idea of multidimensional anti-discrimination regimes seems to require an approach that examines these different legislative instruments as part of a bigger whole. An alternative account of the relationships between different grounds of discrimination therefore needs to focus on what the central goal of the given anti-discrimination regime is and how the different grounds contribute to this goal in various different ways.
Equality hierarchies in the light of complex and conflicting identities
This section explores what guidance the relationships between the protected grounds can receive from the contemporary discrimination theory. It will first briefly explain how the argument of complex social identities challenges the simplistic view of protected categories in anti-discrimination legislation. The important insight that follows from this analysis is that the complexity of social identities both between and within social groups, as well as within individuals, is not just relevant to selecting the protected grounds but also has implications for how these grounds relate to one another. The critical feminist, anti-racist and queer theories demonstrate that a more systematic account of how the protected grounds relate to one another needs to recognize the complexity of identity formation and the complexity of conflicting interests that follow from it. However, none of these theories alone provides a sufficient account of how exactly this complexity affects the relationships between the protected grounds.
A critique of categorization in modern anti-discrimination law
The use of categories as a ‘proxy’ for distinguishing illegal discrimination from legitimate differential treatment forms an essential part of discrimination law. 60 The crucial question for understanding the relationships between the protected grounds is what makes certain characteristics ‘improper’ grounds in the first place. 61 In answering this question, the common justifications for anti-discrimination legislation tend to focus either on historical ‘group disadvantage’ or on certain ‘personal traits’. 62 However, neither of these two approaches gives a sufficient explanation for how the protected grounds relate to one another in multidimensional anti-discrimination law. The notions of an ‘immutable status’ and a ‘fundamental choice’ 63 have also been used to explain why certain personal characteristics are regarded as protected in discrimination law, as was seen above. But the mere reference to mutability and immutability fails to solve conflicts between two (or more) protected grounds when both of them are either mutable or immutable by nature. It also ignores the more subtle diversity of potential rationales underlying the different prohibitions of discrimination, as discussed in the previous section.
Moving beyond the approach that builds on categorization and the explicit grounds of prohibited discrimination would require an alternative account of what makes discrimination wrong. One such alternative is to give a more positive role to discrimination law as a means of empowering its beneficiaries as equals with everyone else within society. From an ‘expressive’ perspective, 64 discrimination can be seen as an attack on a person’s identities, and discrimination theory should shift its focus from ‘categorization’ and ‘historical disadvantage’ to ‘the contours of complex social identity’. 65 Recognizing the complexity of social identities highlights that placing things in a certain category can easily ‘supress differences and emphasize similarities’. 66 From this perspective, the assumption that only those within a category are ‘relevantly similar’ can be understood as ‘expressions of hierarchies’ and, thus, as ‘assertions of power’. 67 These arguments are relevant to our analysis of equality hierarchies because they underline the complexity of those social identities that discrimination law seeks to protect.
The claim for recognizing more complex social identities
The concern for complexity first emerged in the context of the so-called ‘intersectionality’ theories. 68 The central claim of intersectionality is that the dividing lines between different grounds fail to respond to the experience of ‘those at the intersection of more than one social group’. 69 Some theorists therefore argue that the ‘pre-given identity categories’ of discrimination law must be problematized. Others, however, hold that the ‘categories of inequality’ need not to be altogether abandoned, but more attention should be paid to the complexity of social identities that underlies these categories. 70 The term ‘multiple discrimination’ usually refers to a situation in which a person suffers from discrimination on more than one ground. In practice, however, multiple discrimination can be ‘sequential’, ‘compound’, ‘additive’ or ‘cumulative’. 71 The notion of intersectionality specifically aims at addressing those situations in which multiple discrimination is cumulative by nature. 72
Multiple discrimination is mentioned in the recitals of the 2000 equality directives as well as in various policy documents produced by the EU institutions. 73 In regard to the Commission’s 2008 proposal for a new equality directive, European Parliament emphasized that the proposed directive ‘takes into account multiple discrimination’ and added a definition of multiple discrimination into it, although the original proposal only reiterated the reference to multiple discrimination as included in the recitals of the 2000 directives. 74 It has been noted that the EU anti-discrimination policies tend to focus on multiple discrimination at the expense of intersectionality. 75 This criticism is often combined with the argument that this framework fails to give ‘equal importance to the different inequalities’. 76 The question of equality hierarchies is therefore closely connected to that of intersectionality.
The idea of intersectionality has been developed further by critical race, feminist and queer theorists who emphasize the ‘complexity’ and ‘multiplicity’ of identity in their analysis of those power relations that underpin discrimination. 77 These so-called ‘post-intersectionality’ theories, also known as ‘new complexity’ theories and ‘multidimensionality’ theories, suggest that a more ‘contextualized’ analysis of societal power relations is needed to fully grasp how privilege and subordination intersect in different situations. 78 Some of these theories build on the idea that the different forms of ‘subordination’ are ‘connected’ and ‘mutually reinforcing’. 79 This reference to the factors that are common to different forms of ‘subordination’ is important to our analysis of equality hierarchies because it indicates that it is possible to simultaneously maintain the idea of a common centre of discrimination law with that of complexity. Systematizing the relationships between the protected grounds would be difficult if there were no common point of reference for the different prohibitions of discrimination within a single legislative framework.
Multiple conflicting interests as a tool for further analysis
The analysis of equality hierarchies in the EU equality directives can benefit from the analysis of complex social identities because it directs our attention to the complexity of potential conflicts of interest between and within the protected grounds. The tensions between feminism and multiculturalism, as well as between religious pluralism and sexual and gender minorities, are common examples of the conflicts ‘between’ groups. 80 What is also noteworthy is the way in which these theoretical arguments of complexity clarify the different levels at which the conflicts of interest can become actual. Identity conflicts may arise between different protected groups, as noted above. However, they may also arise ‘within’ these groups because the same individuals often belong to more than one group, all of which may be equally subordinated. 81 Finally, conflicts can even emerge within the individual whose identity may consist of several different aspects. 82 This reality of conflicting interests must be recognized when systematizing the relationships between the different grounds of prohibited discrimination.
To make this argument more concrete, it is helpful to briefly consider how these three levels of conflicting interests can be viewed in relation to inequality in equality as discussed earlier in this article. Both the differing material scopes and the differing justifications for differential treatment in the 2000 equality directives can result in a hierarchy between the protected grounds. The more widely (in terms of the scope) or more strictly (in terms of the justifications) protected grounds seem to enjoy a privileged status in respect to other grounds. The interesting question is how these hierarchies should be understood if none of the privileged grounds is in reality isolated but intersects with other grounds in multiple different ways. Here the idea of complex identities can be used to critically examine who within the protected group can actually benefit from this privilege. Moreover, the discrimination analysis will also become more contextual if it takes into account that, in any specific case, the conflict of interests may not just emerge between the protected grounds but also within them as well as within the individual parties.
The problem concerning equality hierarchies is reversed in regard to those grounds that are equally protected in terms of their material scope and accepted justifications. In these cases, it is important to consider whether discrimination theory can provide more substance for normative ordering between these grounds if they are in conflict. Although the insight into critical discrimination theory in this section clarifies how the emergence of conflicting interests at multiple different levels may shape the relationships between different grounds of prohibited discrimination, it fails to articulate how this complexity can be reconciled with a more systematic account of the relationships between the protected grounds as part of the discrimination analysis. The challenge of European discrimination law is therefore to find a source of normative ordering that does not collapse into harmful or oppressive equality hierarchies, but which is able to integrate complex social identities with a more coherent account of how the protected grounds relate to one another.
Subjectivity as identity through agency: A substantive standard for inequality in equality in European discrimination law?
The contemporary discrimination theory underlines the complexity of those social identities that are recognized by anti-discrimination law, but it leaves open the question of how this complexity can be taken into account in systematizing the relationships between the protected grounds. This section will consider how our understanding of the ‘subject’ of modern anti-discrimination law can respond to this complexity. In practice, discrimination law advances certain expressions of identity and certain forms of agency, first, by selecting the protected grounds and, then, by defining how these grounds are protected. The interesting question is whether it is possible to bring together the identity-based and the agency-based justifications for discrimination law in such a way which will also bring more coherence to the relationships between the protected grounds. This section suggests that the notion of subjectivity as identity through agency can accommodate the above-mentioned complexity within a single normative framework and provide a substantive standard for assessing the relationships between the protected grounds.
Some argue that understanding agency and identity as ‘inseparable and mutually reconstituting’ leads to a politically useful notion of identity. 83 Others, however, claim that these attempts to connect ‘identity’ and ‘agency’ fail to recognize the imbalanced power relations within society and the lack of agency that follows from them. 84 ‘Recognition’ as the central premise of anti-discrimination law has therefore been called into question on the basis that it often relies on ‘a simplified understanding of subject formation, identity, and agency in the context of social hierarchies’. 85 From this criticism follows the argument that the complexity of human subjectivity requires a more thorough understanding of the ‘embodied context’ in which both identity and agency are formed. 86 This approach to subjectivity implies that the way in which the relationships between different grounds of prohibited discrimination are arranged may have important implications for enhancing subjectivity by means of anti-discrimination law.
Social construction of reality arguably ‘culminates in the creation of codified laws’. 87 However, it is important to recognize that this relationship also works in the other direction and that the law shapes the processes of social construction, including the formation of individual and group identity and agency. Any substantive attempt to bring more coherence and normative ordering to the relationships between the protected grounds therefore needs to distinguish between a negative approach, which focuses on the individual’s inability and inavailability to do a job or use goods, and services and a more positive approach, which focuses on the ways in which the identity formation and agency can be supported and strengthened by discrimination law. Granting absolute rights on the basis of other policy measures may sometimes provide a better way to address social problems than the ‘relative rights’ 88 under discrimination law. But the ‘relative’ nature of rights granted under anti-discrimination legislation also means that discrimination law can play an important role in shaping those social relationships in which political and legal ‘subjectivity’ is constituted.
What is important to the analysis of equality hierarchies is that the subjectivity-based approach to discrimination law allows us to combine the account of discrimination law as ‘accurately representing complex identity categories’ with the one that focuses on ‘the relations and processes that create inequality’. 89 Namely, shifting the focus to subjectivity forces discrimination theory to engage with both the intra-psychic and the social dimensions of identity formation and agency. 90 A more comprehensive account of subjectivity would therefore need to take into account at least the following three dimensions: (1) personality as ‘the intrapsychic domain of human functioning traditionally studied by developmental psychologists and psychoanalysts’, (2) interaction as ‘the concrete patterns of behaviour that characterize day-to-day contacts among people’ and (3) social structure as ‘the political and economic systems, along with their subsystems, that define the normative structure of a society’. 91 This synthesis of intra-psychic factors and social interaction in constituting subjectivity can be conceptualized as identity through agency.
Understanding the constitution of subjectivity as a dynamic and often fragmented ‘process’ 92 that requires both identity and agency can provide us with an explanation of how all grounds are equally valuable, whilst simultaneously supporting the view that some of them may require different treatment. The emphasis is no longer on the simplistic claim that all protected grounds must be treated alike. Instead, this approach generates more substance to the ideal of integration by arguing that different prohibitions of discrimination contribute to subjectivity as the common goal of anti-discrimination law in multiple different ways. The relationships between the protected grounds can then be examined in light of the fact that both identity and agency are needed for the constitution of subjectivity. In practice, this means that any given equality hierarchy can be assessed by looking at its implications (1) for the expression of agency, (2) for identity formation and (3) for the mutually reinforcing balance between these two dimensions of subjectivity.
In sum, the process-oriented account of subjectivity as identity through agency introduces a threefold substantive standard for normative ordering in multidimensional anti-discrimination law. This approach is based on the claim that each protected ground contributes in its own way to the emergence of the individual as a full subject with the sense of identity and the ability to exercise agency. This framework of subjectivity is also useful because it allows more complex accounts of what it means to be a subject, and not just a mere object, of distribution that forms the central objective of modern anti-discrimination law and policies. It is therefore important to conduct more empirical and theoretical research on what kind of expressions of subjectivity European discrimination law currently advances and how this subjectivity is enabled and disenabled in the relationships between the protected grounds.
Conclusion
Underlying the debate on equality hierarchies is the concern that a more systematic account of how the protected grounds relate to one another needs to reconcile the goals of diversity and integration in such a way that neither assimilates multiple identities nor unjustly privileges some of the protected identities over the others. This article first explained what conceptual tools academic commentators have used to address this issue in the EU equality directives. It then discussed in more detail how the complexity of identity formation can be reconciled with the attempt to systematize the relationships between the protected grounds. Finally, the article provided one possible answer to this question by explaining how the constitution of subjectivity as identity through agency can inform the process of normative ordering between the protected grounds. It concluded that more research is needed on what kind of meta-narratives of subjectivity are embedded in multidimensional anti-discrimination regimes in general and in the EU equality directives in particular.
Footnotes
Acknowledgement
I am very grateful to Dr Jogchum Vrielink and the anonymous reviewer for their helpful comments on the earlier version of this article.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This article is based on the research funded by the Flemish Ministry within the framework of the third Policy Research Centre Program (2012–2016).