Abstract
Being a legal scholar interested in the relationship of the phenomenon of stigmatization with important societal and legal questions, the opportunity to review this work was not to be passed up. Efforts by legal scholars to explore in any meaningful way the phenomena of stigmatization and the research relating to it have been few and far between. As the author identifies in her introduction, the use of stigmatization as a concept in legal judgments, analysis and writings has been rare. Where it has occurred references have been superficial, without meaningful analysis and often employing what can only be understood to be an intuitive understanding of the concept (p. 38). This stands in stark contrast to the rich and varied research that has occurred in recent decades surrounding the phenomenon. At its core, this book is a brave (and to be applauded) attempt to undertake an exploration of such issues from a legal scholar’s perspective and relate such findings to the issue of discrimination and legal approaches intended to tackle it. In doing so, it was the author’s aim to formulate a principle (the ‘anti-stigma principle’) that would guide the formulation and implementation of anti-discrimination law (an important goal, given the close relationship between the two concepts) (p. 38).
Chapter 1 introduces the reader to the concept of stigmatization, starting with Goffman’s seminal work and then briefly explaining a number of developments that have occurred in the decades since. These include contributions from fields such as psychology, public health and sociology. It is the last of these areas that appears to inform the author’s outlook to the greatest extent and to which she mostly draws upon in attempting to form her own thesis on the relevance of the concept of stigmatization to anti-discrimination law.
Chapter 2 looks at the common elements of many anti-discrimination approaches, ranging from the philosophical inspiration behind them (mostly focusing on themes of equality) to the manifestation of anti-discrimination approaches in international law. The law focuses on the common use of exhaustive lists to define the categories that deserve protection from discrimination and the importance of the concept of ‘immutability’ to such approaches (i.e. they often only apply to concepts that are seen as unchangeable). As the author identifies, these issues create problems when viewed from a stigma perspective, given that many stigmatized traits may be both changeable and difficult to place within such categories.
Chapter 3 looks at case law from various (mostly common law) jurisdictions around the world. Here the author clearly demonstrates the limited use that has been made of the stigma concept thus far in legal cases, and that where it has been used the concept has not been well explored. In so doing, she makes a strong case for a better understanding of the concept on the part of judges, practitioners and legal scholars. While this chapter does not claim to be exhaustive in its analysis, it could have perhaps benefited from analysis of more cases from civil jurisdictions in order to bring more balance (a similar point could be made concerning chapter 2 and the discussion of anti-discrimination legislation).
It is in chapter 4 that the author presents her own thesis where she develops what is described as the ‘anti-stigma’ principle. Rather than being a simple and concise principle, however, it seemingly takes the form of a long discussion of what the author feels are the most salient aspects of stigma as a phenomenon that should be taken into consideration. At the heart of this principle is the idea that all discrimination results from stigmatization, which occurs at the societal level. Tackling such discrimination would therefore result in many discriminatory problems being tackled at source, rather than at the level of the outcomes that they produce (i.e. discriminatory events). Unfortunately, this chapter suffers from a lack of structure that can serve to leave the reader confused as to exactly what the author’s ‘anti-stigma principle’ is. While the individual points raised by the author are seemingly pertinent, it is (at least within this chapter) difficult to discern what exactly the principle amounts to given the absence of any concise statement or summary that one would normally associate with a principle. This has the effect of creating a certain level of confusion for the reader as they approach future chapters. This confusion is increased because the content of chapter 4 (being the anti-stigma principle) is further supplemented by chapter 5 which attempts to draw lessons from prominent public health activities such as dealing with serious epidemics, for example, Ebola.
In chapters 5 and 6, the author changes focus by attempting to provide more concrete examples of where she feels that the anti-discrimination principle she has developed demands that action should be taken in terms of anti-discrimination approaches. In chapter 5, for example, she focuses on positive forms of public action that should be taken to reduce stigmatization looking inter alia at educational measures and other initiatives that could be taken to challenge cultural norms that may be stigmatizing for certain groups. On a more legal note, the author looks at the initiatives available under the UK’s Equality Act (2010) and suggests how they could be interpreted differently in order to reduce acts of discrimination. In chapter 6, the author discussed issues of intersectional discrimination and how a correct understanding of the dynamics of stigmatization can allow such issues to be better conceptualized.
In chapters 7 and 8, the author applies her ‘anti-stigma’ principle to two concrete cases of discrimination in order to demonstrate that while it may demand the application of anti-discrimination law to certain categorizations, it will not do so in other cases. In her book, the author opted for the examples of obesity (chapter 7) and having a tattoo (chapter 8). As the author demonstrates, these two examples are useful in showing the limits of anti-discrimination law, given the common use of exhaustively defined lists in order to determine the groups deserving of protection. It is strangely only at this point that the author opts to describe her anti-stigma principle in a concise (and hence memorable) manner – consisting of a number of questions that should be asked in a particular instance to determine whether a particular categorization should be covered by anti-discrimination law. Using these questions, the author argues that obesity should be a protected category while having a tattoo per se should not.
Ultimately, the author deserves praise for daring to tackle this subject in depth – something that has not been common amongst legal scholars until now (Quinn, 2017). In doing so, she has aided not only in highlighting the importance of the concept of stigma to questions regarding legal issues but also in encouraging others to follow suit. The author has furthermore done much to discuss the link between the phenomena of stigmatization and discrimination from a legal perspective, hopefully stimulating such discussions within the contexts of legal cases themselves.
The usefulness of the author’s anti-discrimination principle is however less certain. Perhaps the greatest problem is the reliance on a number of statements that, in the opinion of this reviewer, rely upon generalizations that have been selectively taken from particular theories and approaches towards stigmatization. Assumptions that ‘stigmatisation always involves discrimination’ and that ‘stigma has an objective purpose’ (p. 37, p. 110) are prime examples. While the author’s preferred model of stigma (Link and Phelan, 2001) does make such an assumption others do not. There is for example much work available concerning the subjective nature of stigmatization including, for example, how depending upon such aspects as personality, personal experience and personal beliefs, an individual may or may not find a particular behaviour to be stigmatizing (Crocker, 1999). Similar questions arise concerning statements such as stigmatization ‘is always intentional’ (p. 37, p. 211) given that, as is frequently discussed in the literature, unintentional behaviours such as body language or simply averting gaze can be construed as stigmatizing (Dovidio et al., 2000). Elsewhere the author states that there is nothing at ‘all natural at all about stigma’. While this may or may not be true, there is a body of literature which argues that stigma is a ‘bio-cultural’ or ‘biosocial’ phenomenon, i.e. it has at least some biological component (Neuberg et al., 2000; Phelan et al., 2008). While the author is entitled to disagree with such augments (as a number of stigma scholars do), it would have been preferable to have at least acknowledged their existence when making such a profound statement.
This book could also have benefited from further discussion of the sensible and realistic limits of anti-discrimination approaches in general. Reducing discrimination necessarily entails reducing the liberties and freedoms of certain actors in society. Where laws forbid a certain type of discrimination, it is usually because history has shown that a particular group or minority has been the subject of harms that are serious enough to warrant the restrictions upon the liberty of individuals to act in a way that is discriminatory to that group. In (many) other instances, groups may not be seen as vulnerable enough to warrant such protection and the restriction of personal liberty that would come with such restrictions (on discrimination) (Quinn and De Hert, 2014). A consideration of the potential implications of such potential restrictions on individual liberty would have made a valuable addition to this book, given the potential breadth of application of the author’s anti-stigma principle, including but not limited to public discourse, something of essential importance to the democratic and liberal nature of the societies in which we live.
On reflection, the critiques above should not be seen as a direct criticism of the author but rather serve to show the worthwhile venture that this book represents. Tackling a subject as broad and as complex as stigmatization, and its implications for the field of discrimination in one work is a difficult challenge. The possibility of covering all theories, implications and viewpoints is in reality limited. In writing this book, however, the author (as evidenced by this review) may have contributed towards one of her most important goals – promoting the relevance of the concept of stigma (and the many theories behind it) to the development and implementation of anti-discrimination law. In doing so, the author will no doubt open up important debates on how the phenomena of stigmatization should affect the understanding of the more traditionally legal concept of discrimination. This book therefore can be recommended as a worthwhile and thought-provoking read for anti-discrimination scholars.