Editorial

Welcome to the International Journal of Discrimination and the Law. In this issue we bring you five articles which, although very different, share a central theme: the pursuit of justice using traditional anti-discrimination frameworks. Three of the articles - those by Khanzina et al, Saunders and Van de Graaf - consider the effectiveness of national anti-discrimination law and policy frameworks, De Vos’s contribution explores the provision of EU law and, in his article Coddou McManus seeks to situate anti-discrimination law within social and political theory. As all five of the articles clearly demonstrate, anti-discrimination law – even in its traditional guise – is still an important driver of social change with plenty of scope for further expansion and alternative application and interpretation.

In their consideration of gender equality in Kazakhstan, Zhanna Khamzina, Yermek Buribayev, Yerkin Yermukanov and Aizhan Alshurazova undertake an analysis of social and labour legislation. In common with many jurisdictions and despite the existence of an anti-discrimination framework, women in Kazakhstan continue to experience high levels of inequality evidenced by wage differentials and discrimination on the grounds of pregnancy, motherhood and marital status. Using the results of a complex analysis of existing data sets, laws and policies, and international comparative sources, the authors argue that targeted state action is necessary. Such intervention should consist of an in-depth gendered analysis of current provisions, equality impact assessment of all new law and policies and gender mainstreaming across all areas of social and labour legislation. Only by adopting this systematic approach will the lives of women in Kazakhstan be improved.

Hannah Saunders takes the UK’s 2010 Equality Act as the focus of her article in which she explores the extent of the provisions dealing with disability in the context of their application to cases of severe disfigurement. Saunders considers the modeling underpinning the current legislative approach and undertakes a detailed assessment of the relevant case law to argue that the term ‘disfigurement’ should encompass a broad range of appearance-altering conditions based on the extent to which a person’s appearance is affected by an impairment. This would require the currently disparate concepts of disability and appearance to be brought together in order to extend the reach of the Act’s protection to enable discrimination on the grounds of disfigurement to incorporate visible conditions such as obesity as a means of overcoming the stigmatisation experienced by affected individuals.

In her article Catherine Van de Graaf examines the out-of-court approach of Unia, Belgium’s National Equality Body (NEB), which is based on mediation in the form of dialogue between the parties to a dispute. The article presents the findings of empirical research consisting of interviews with individuals whose experiences of discrimination and hate speech were subject to mediation through Unia. In identifying and assessing the levels of satisfaction with the process and the factors that contributed to that satisfaction, the author uses a socio-psychological perspective drawn from the relational model of procedural justice. This model is founded on the assertion that an individual’s perception of whether they have experienced a ‘fair procedure’ is invested in what it tells them about their relationship with the entity enacting the procedure. Van de Graaf’s findings support similar research in showing how providing an individual with the opportunity to tell her own story impacts favourably on her perception of the fairness of the procedure. The extent and nature of the interpersonal interaction with Unia’s staff was transformational for some of the participants in Van de Graaf’s study and it is this finding that provides further food for thought regarding the role of the NEB and users’ perceptions and expectations of it.

Marc de Vos’s contribution considers the evolution of EU law’s conceptualisation of equality from a traditional formal approach towards a transformative substantive formulation. Using an analysis of the Court’s case law in the contexts of both direct and indirect discrimination, the author illustrates his claim that the trajectory of the Court of Justice of the EU’s jurisprudence has been towards substantive equality and argues that the CJEU has promoted substantive equality through its interpretation of the principle of non-discrimination and the appropriate application of positive action. De Vos suggests that this provides a wider scope for substantive positive discrimination as a limitation of, rather than an exception to, formal equality which should, for its future development, be harnessed to the EU’s adoption of a broad fundamental rights approach. Whilst recognizing the limitations of the Court’s ability to steer EU law’s expansion, De Vos shows how its ‘pragmatic flexibility’ could align with the legislature’s focus on fundamental rights to produce a more results-based approach for the EU’s equality law framework.

In his article, Alberto R Coddou McManus considers the place of anti-discrimination law within existing theories of social and political emancipation and explores the limits of the transformative potential of anti-discrimination law. The author uses insights from the work of Nancy Fraser to illuminate if and how current anti-discrimination frameworks contribute to progressive political projects which seek to challenge processes of modernisation that push towards social/political disintegration and systemic/market integration. In his conclusion Coddou McManus acknowledges that, in certain circumstances, anti-discrimination law can constitute ‘nonreformist reform’ and may provide an important first step in the development of progressive political projects.