PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation refers to the “relevance, appropriateness and effectiveness” of a measure to its stated goal of ensuring equal participation,305 rather than the cost or feasibility of making a requested accommodation. This assessment – of whether an accommodation imposes a “disproportionate or undue burden” – is a second stage of the analysis,306 focusing on whether failure to accommodate can be justified, as discussed further in section I.A.4(a) of part two of the present guide. (e) Segregation SUMMARY • Comprehensive anti-discrimination legislation must prohibit segregation. It should be defined as follows: Segregation occurs when persons sharing a particular ground are, without their full, free and informed consent, separated and provided different access to institutions, goods, services, rights or the physical environment. There can be no consent for racial segregation. Although the term “segregation” is not explicitly defined in any of the core United Nations human rights treaties, it has been widely recognized as a grave form of discrimination, which occurs when individuals sharing a particular characteristic are coercively separated and provided different access to institutions, goods, services or rights compared with another group or to the general population. Segregation generally – though not always – implies some degree of forced or compelled separation, isolation or exclusion. In practice, coercion or compulsion in this context means the absence of full, free and informed consent of the person or group involved. Full, free and informed consent must itself be secured without a coercive environment and consent may be withdrawn at any time. While segregation is often considered in spatial terms it may also involve legal, policy or customary measures designed to enforce other forms of separation. Thus, for example, in the famous case of Loving v. Virginia, the Supreme Court of the United States ruled that laws banning interracial marriage – and so enforcing racial segregation in family relations – violated constitutional equality, equal protection and non-discrimination guarantees.307 The ban on segregation was developed primarily in the context of racial segregation and it is clearly established that segregation is prohibited on this basis and related grounds, including caste.308 There is also now a broad recognition that segregation is a form of prohibited conduct that can arise in respect of various grounds of discrimination or on multiple or intersectional grounds. In addition to racial discrimination, United Nations human rights mechanisms have raised segregation-related concerns with respect to the grounds of age,309 disability,310 gender identity and gender expression,311 sex312 and sexual orientation.313 The Independent Expert 42 305 Ibid., para. 25 (a). 306 Ibid., para. 25 (b). 307 Loving v. Virginia, 388 U.S. 1, 1967. 308 On grounds of descent, including caste, see, in particular, Committee on the Elimination of Racial Discrimination, general recommendation No. 29 (2002), paras. (a) and (n)–(q). 309 See, inter alia, A/HRC/39/50, as well as A/HRC/30/43. In its general comment No. 6 (1995), the Committee on Economic, Social and Cultural Rights recalled principle 7 of the United Nations Principles for Older Persons (General Assembly resolution 46/91, annex), namely that: “Older persons should remain integrated in society, participate actively in the formulation and implementation of policies that directly affect their well-being and share their knowledge and skills with younger generations” (para. 39 of the general comment). 310 See, for example, A/71/314, para. 6; CRPD/C/HUN/CO/1, para. 33; Committee on the Rights of Persons with Disabilities, general comment No. 5 (2017), in particular para. 16 (c); Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), paras. 56 and 64; Committee on the Rights of Persons with Disabilities, general comment No. 4 (2016), paras. 11 and 13; CRPD/C/TUR/CO/1, para. 48 (a); CRPD/C/IND/CO/1, paras. 6 (b) and 50 (a); CRPD/C/IRQ/CO/1, para. 43 (a); CRC/C/PSE/CO/1, para. 54 (b); CRC/C/MDA/CO/4-5, para. 29 (c); CRC/C/QAT/CO/3-4, para. 29 (c); CRC/C/BRA/CO/2-4, para. 51; CERD/C/CZE/CO/12-13, para. 17; CCPR/C/AZE/CO/4, para. 10; E/C.12/MEX/CO/5-6, paras. 65 (e) and 66 (e); E/C.12/VNM/CO/2-4, para. 15; and CEDAW/C/AUL/CO/7, para. 38. 311 See, for example, CAT/C/BLR/CO/5, paras. 29–30. See also OHCHR, Living Free & Equal: What States are Doing to Tackle Violence and Discrimination against Lesbian, Gay, Bisexual, Transgender and Intersex People (New York and Geneva, 2016), p. 42. 312 See, for example, CEDAW/C/KOR/CO/8, paras. 30–31; and CEDAW/C/EST/CO/5-6, para. 29; and CEDAW/C/SVK/CO/5-6, paras. 20, 28 and 30. 313 See CAT/C/BLR/CO/5, paras. 29–30. See also OHCHR, Living Free & Equal, p. 42.