PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW PART TWO – I The European Court of Human Rights has indicated that the term “other status” should be given “a wide meaning”,136 and should not be limited to characteristics “which are personal in the sense that they are innate or inherent”.137 Likewise, the Inter-American Commission on Human Rights has recommended that the term “any other social condition” established under article 1 (1) of the American Convention on Human Rights be construed broadly and “interpreted in the context of the most favourable option for the human being and in light of the evolution of fundamental rights in contemporary international law”.138 SOUTH AFRICA: THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT The Promotion of Equality and Prevention of Unfair Discrimination Act of South Africa provides a test for identifying additional grounds of discrimination. In addition to those grounds expressly listed under the legislation, the term “prohibited grounds” is taken to include “any other ground where discrimination based on that other ground[:] (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on [an explicitly listed] ground”.139 As one of the earliest comprehensive equality laws, the South African model has proven influential and has informed the development of subsequent best practice approaches.140 Through their consideration of individual communications, general comments and concluding observations, the human rights treaty bodies have identified a broad range of personal characteristics as forms of “other status”. This includes, inter alia, the grounds of sexual orientation,141 gender identity142 and – in recognition of the particular harms affecting intersex persons143 – sex characteristics.144 Developments in these areas have been largely captured at the regional level,145 as well as in national legislation adopted pursuant to States’ human rights obligations.146 The Committee on Economic, Social and Cultural Rights and the Committee on the Rights of Persons with Disabilities have issued general comments on equality and non-discrimination, which reflect developments at the international level and provide a (non-exhaustive) list of grounds that have come to be recognized 136 European Court of Human Rights, Carson and others v. the United Kingdom, Application No. 42184/05, Judgment, 16 March 2010, para. 70. 137 European Court of Human Rights, Clift v. the United Kingdom, Application No. 7205/07, Judgment, 13 July 2010, paras. 56–59. 138 Inter-American Commission on Human Rights, Duque v. Colombia, Case 12.841, Report No. 5/14, Merits, 2 April 2014, para. 64. 139 Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, sect. 1. 140 Equal Rights Trust, Declaration of Principles on Equality, principle 5; and Parliamentary Assembly of the Council of Europe, resolution 1844 (2011) on the Declaration of Principles on Equality and activities of the Council of Europe, para. 10. 141 See, for example, Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 32; CRC/C/BLR/CO/5-6, para. 15 (a); Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010), para. 18; CRPD/C/IND/CO/1, para. 19 (b); Committee against Torture, general comment No. 2 (2007), para. 21; CERD/C/KGZ/CO/8-10, para. 16; CMW/C/LKA/CO/2, para. 27 (c); and Human Rights Committee, Young v. Australia (CCPR/C/78/D/941/2000), para. 10.4. 142 See, for example, E/C.12/UKR/CO/7, paras. 10–11; CCPR/C/UZB/CO/5, paras. 10–11; Committee on the Elimination of Racial Discrimination, general recommendation No. 36 (2020), paras. 18 and 60; CEDAW/C/NZL/CO/8, para. 12 (a); CRPD/C/MMR/CO/1, para. 12; CMW/C/LKA/CO/2, para. 27 (c); CRC/C/LVA/CO/3-5, para. 27 (c); and CAT/C/UZB/CO/5, para. 64. 143 Member States, United Nations entities, regional mechanisms and civil society organizations use different terms to describe the ground of discrimination on the basis of which intersex persons face human rights violations, including “sex characteristics”, “intersex status” and “bodily diversity”. In the present guide, the term generally used is “sex characteristics”. 144 See, for example, E/C.12/ECU/CO/4, paras. 25–26; CRC/C/LVA/CO/3-5, para. 27 (c); CEDAW/C/NZL/CO/8, para. 12 (a); CRPD/C/IND/CO/1, para. 19 (b); CAT/C/BLR/CO/5, para. 30 (b); CERD/C/ARG/CO/21-23, para. 36; CMW/C/GTM/CO/2, paras. 26 (a) and 27 (d); and CCPR/C/TUN/CO/6, paras. 19–20. 145 For instance, in relation to the ground of sexual orientation, see African Commission on Human and Peoples’ Rights, Zimbabwe Human Rights NGO Forum v. Zimbabwe, communication No. 245/02, Decision, 11–15 May 2006, para. 169; Inter-American Court of Human Rights, Atala Riffo and Daughters v. Chile, Case, Judgment, 24 February 2012; and European Court of Human Rights, S.L. v. Austria, Application No. 45330/99, 2003, para. 37. For further discussion on this point, see African Commission on Human and Peoples’ Rights and others, Ending Violence and Other Human Rights Violations based on Sexual Orientation and Gender Identity: A Joint Dialogue of the African Commission on Human and Peoples’ Rights, Inter-American Commission on Human Rights, and United Nations (Pretoria, Pretoria University Law Press, 2016). Available at www.ohchr.org/Documents/Issues/Discrimination/Endingviolence_ACHPR_IACHR_ UN_SOGI_dialogue_EN.pdf. 146 See, for instance, Malta, Gender Identity, Gender Expression and Sex Characteristics Act, 2015. 21