PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation
A. Prohibition of discrimination
To be comprehensive, anti-discrimination legislation must define and prohibit all forms of discrimination on
the basis of an extensive and open-ended list of characteristics, in all areas of life regulated by law. The right
to non-discrimination can be understood as having four dimensions: (a) the personal scope of the right; (b) the
forms of prohibited conduct; (c) the material scope of the right; and (d) justification. Anti-discrimination law
should provide clear definitions in each of these areas.
1. Personal scope
To meet the requirements of international law, comprehensive anti-discrimination legislation must prohibit
discrimination that occurs on the basis of an extensive and open-ended list of protected grounds. This requires
the explicit protection of all characteristics recognized in international law, as well as any other grounds that
require protection in a given society. Comprehensive anti-discrimination law must permit the possibility
of recognizing additional grounds of discrimination, through the inclusion of an “other status” or similar
provision. Anti-discrimination law may also include criteria for the identification and recognition of new
grounds of discrimination.
Discrimination is prohibited on the basis of age; birth; civil, family or carer status; colour; descent,
including caste; disability; economic status; ethnicity; gender expression; gender identity; genetic or
other predisposition towards illness; health status; indigenous origin; language; marital status; maternity
or paternity status; migrant status; minority status; national origin; nationality; place of residence;
political or other opinion; pregnancy; property; race; refugee or asylum status; religion or belief; sex;
sex characteristics; sexual orientation; social origin; social situation; or any other status.
Anti-discrimination legislation must ensure that discrimination is prohibited in situations in which: (a) it arises
on the basis of a person’s association with a group or another person possessing a particular characteristic; and
(b) it arises due to a perception (whether accurate or not) that a person possesses a particular characteristic.
Discrimination must also be prohibited when it arises on the basis of a combination of characteristics (multiple
discrimination).
The prohibition of discrimination includes discrimination based on association and perception.
Discrimination based on perception occurs when persons are disadvantaged on the basis of a perception –
whether accurate or not – that they possess a protected characteristic. Discrimination based on association
occurs when persons are disadvantaged on the basis of their association with another person or persons
possessing a protected characteristic.
The prohibition of discrimination includes multiple (intersectional and cumulative) discrimination and
recognizes the particular harm involved.
Cumulative discrimination takes place when discrimination occurs on two or more, separate, grounds.
Intersectional discrimination takes place when discrimination occurs based on a combination of grounds
that interact with each other in a way that produces distinct and specific discrimination.
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