REUTERS | Ajay Verma

All protected characteristics are equal, but are some more equal than others?

In Achbita, the AG seems to think that because religious belief is a matter of choice and hence is mutable, it is less worthy of protection than the allegedly immutable personal characteristics that sit alongside it in the Directive. However, there is nothing in the Directive or indeed what sits behind it, the Treaty of the Functioning of the European Union, to suggest that religion or belief deserve different or lesser protection because they are a matter of choice.

Beliefs and the right to change beliefs are protected in the UN Covenant on Civil and Political Rights (ICCPR), something which is specifically invoked in the Directive’s preamble. The special status of beliefs, and the role they play in the dignity of a human being, is emphasised in the ICCPR. The ICCPR proclaims “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. It then protects belief and religion.

Article 18 of the ICCPR provides for freedom of thought, conscience and religion, including adopting a religion or belief of choice. It protects against coercion which would impair the freedom to have or adopt a belief. Freedom to manifest beliefs can only be subject to limitations that are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

The AG makes much of the fact that religion is a matter of choice, but, as the history of Europe leading up to the Treaties and the Framework Directive shows, the issue is not whether a person can change their belief but whether they should be made by less favourable treatment to change their belief.

The beliefs considered worthy of protection in a democratic and tolerant society are those which inform the person. They are the ones that go to the person’s self-concept and dignity. In R (ota RJM) (FC) v Secretary of State for Work and Pensions [2008] UKHL 63 Lord Walker gave an analysis which is helpful in considering the relationship between characteristics and dignity (para 5):

““Personal characteristics” is not a precise expression and to my mind a binary approach to its meaning is unhelpful. “Personal characteristics” are more like a series of concentric circles. The most personal characteristics are those which are innate, largely immutable, and closely connected with an individual’s personality: gender, sexual orientation, pigmentation of skin, hair and eyes, congenital disabilities. Nationality, language, religion and politics may be almost innate (depending on a person’s family circumstances at birth) or may be acquired (though some religions do not countenance either apostates or converts); but all are regarded as important to the development of an individual’s personality ….”

What this analysis seeks to do, and what the AG’s analysis fails to do, is frame the question in terms of the impact that discrimination has on a person’s dignity because of the impact discrimination has on their personal characteristics. Religion and belief need protection because they can be key to a person’s self-perception and dignity. Preservation of dignity is the aim of the whole anti-discrimination project. This is why legal principles to preserve it should be constructed from behind the veil of ignorance and not on the ramparts of fortress Europe.


Cloisters Declan O’Dempsey

One thought on “All protected characteristics are equal, but are some more equal than others?

  1. Hi, in Hong Kong, there exists fixed term contract government employees (with less favorable terms) & permanent servants. They are doing the same job but the latter pay more. Does article 25(c) of ICCPR be violated of the reason “other status” same as this passage? Thank you.

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