ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

FRIDAY 17 JUNE 2016 → UL6 Audimax
2:45 – Plenary Session II
4:15 pm Inequalities
Inequalities That
Matter
Where are we when it comes to a proper legal response
to inequalities? There is by now a plethora of constitutional
and human rights guarantees of equality – national
law, the EU Charter of Fundamental Rights, UN Law
from ICCPR to CERD, CEDAW and the CRD. Obviously,
the attention we pay to problems, or people, is contingent,
with a struggle against the racist trade of “the
other” in slavery and the racist and sexist trafficking in
women today, against democracy of the few (“women´s
vote”), against criminalization of sex (“sodomy”) or sexual
identity (“transgender bathrooms”), against disrespect
for the love of some (“gay marriage”), against
barriers (“the disabled”), against a cultural hegemony
of particular religions (“veil”, “minaret”, “state-churchrelations”),
and so forth. Some suggest that this is an
inflation, and many are still stuck with a symmetrical
concept to target exceptions, or with a groupist idea of
categorical distinctions. There is also immense pressure
to sell a universal insistence on equal treatment
to a dangerous vision of pluralism, be it religious or
cultural or national. It is, thus, time to act.
Today, there is not too much equality out there, but a
striking lack of clarity and consensus in the field. Taking
the harm of perpetuated inequalities seriously, there
is a pressing need to better understand equality as a
fundamental human right today, to help undo inequalities
that matter. A focus not on comparisons but on
harm shifts doctrine towards a liberty type analysis, and
avoids the pitfalls of categorization and groupism. It is
the basis of post-categorical law against discrimination.
Then, equality is, just like liberty, a positive promise,
which requires a focus on violations, thus: inequalities.
This forces us, first, to honestly discuss which
inequalities matter, to distinguish harm from differences
we may eventually accept. Does harassment
hurt? Is profiling harmful? Is privilege a fact, or a harmful
perpetuation of discrimination? Secondly, if we understand
equality as the right against inequalities, we
are compelled to properly understand sex, race, creed
etc. Those who struggled for the lists of inequalities
that matter did not focus on identities, but named key
drivers of inequality. Sex/gender is, then, a driver of sexism,
as is race the driver of racism. Third, such a focus
forces us to properly address discrimination, as a specific
social setting, no matter whether intended or not,
which may render the traditional distinction between
direct and indirect or disparate impact discrimination
void. Overall, I suggest this to be a promising path for
constitutional and human rights law to take.
Susanne Baer
Justice of the Federal
Constitutional Court of Germany,
Humboldt University Berlin
Susanne Baer is a Justice of the
Federal Constitutional Court of
Germany in the Court’s First
Senate. She is Professor of
Public Law and Gender Studies
at Humboldt University Berlin and William W. Cook
Global Law Professor at the University of Michigan Law
School and taught at CEU Budapest regularly until 2010.
Susanne Baer is the Founder of the Law and Society
Institute (LSI), Humboldt University’s center for interdisciplinary
socio-legal studies. Between 2003 and 2010,
she was the Director of the GenderCompetenceCenter,
a research project at Humboldt University Berlin advising
the government. She has served as Speaker of
the Centre for Transdisciplinary Gender Studies and
Vice-President of Humboldt University. Her research
focuses on interdisciplinary studies of law and gender
studies, law against discrimination and comparative
constitutionalism.
PLENARY Events
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