PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation J. Discrimination and expression The relationship between expression and the law on the prohibition of discrimination is complex. Expression and communication can be components of conduct giving rise to ground-based harassment, a proscribed act within the law on the prohibition of discrimination. Expression and communication also play other roles in anti-discrimination law, including, potentially, as evidence of intention or motive, as well as in cases concerning an instruction to discriminate. States must prohibit incitement to violence, discrimination and hostility or hatred on all grounds recognized under international law, including, but not limited to, age, disability, gender expression and gender identity, nationality, race or ethnicity, religion, sex, sex characteristics and sexual orientation. International law also requires that States condemn all propaganda and all organizations that are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or that attempt to justify or promote racial hatred and discrimination in any form. Prohibition does not necessarily mean criminalization. States should distinguish between expression that requires criminalization, expression that requires civil or administrative penalties and expression that merits other forms of response. States should also ensure that the application of measures to combat hate speech does not result in any form of discrimination against any person or group. Courts at national and regional levels have ruled on cases involving hate speech under the law on the prohibition of discrimination. Regional tribunals have found that States have violated the right to non-discrimination in cases in which minorities and other marginalized persons or groups have been exposed to hate speech and the response by the public authorities has been inadequate. Hate speech should, inter alia, be addressed with positive interventions: education, awareness-raising, support for victims to enable counter-speech and the dissemination of positive narratives, including through public information campaigns with positive messaging celebrating diversity. K. Promoting equality, inclusion and diversity States’ international treaty obligations commit them not simply to prohibiting discrimination in law, but to eliminating it in fact. Taking positive, proactive measures to tackle the cultural and social drivers of discrimination are indispensable elements of these obligations. This requires a comprehensive programme of action, required and underpinned by enforceable duties and obligations within anti-discrimination legislation. Duties binding on a State include the adoption of proactive measures to combat prejudice, stereotypes and stigma including, but not necessarily limited to: • The empowerment and participation of rights holders. • Measures to promote diversity, inclusion and equal representation in institutions. • Measures to challenge prejudice, stereotypes and stigma and to promote diversity, inclusion and equality through education. • Informing public perceptions through the media, both mainstream media and social media, and wider awareness-raising efforts. • Training individuals, including public officials, and groups in all areas of life in equality and nondiscrimination law and principles, as well as in the situation and experiences of rights holders. If States are to fulfil their obligations and honour their commitments to eliminating discrimination and ensuring equality of participation, their efforts should encompass and go beyond combating prejudice, stereotypes and stigma. The focus should be not only on countering negative social forces, but on actively promoting equal, diverse and inclusive societies. xviii