PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW on the enjoyment of all human rights by older persons, for instance, has stated that spatial planning should “facilitate the participation of older persons … and avoid segregation”.314 The Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity has recommended that States review and update “gender-based policies on the use of public space, and of policies guiding access to segregated spaces such as sanitation facilities and locker rooms”.315 PART TWO – I SEGREGATION IN THE UNITED STATES Legal challenge to forced separation based on race was a central issue for the United States civil rights movement. There, legal doctrine – affirmed in particular in the 1896 Supreme Court case Plessy v. Ferguson, allowed so-called “separate but equal” provisions: A statute which implies merely a legal distinction between the white and colored races … has no tendency to destroy the legal equality of the two races.316 Nearly 60 years later, this discriminatory precedent was overturned in the landmark case of Brown v. Board of Education of Topeka (1954), which concerned racial segregation in public education. The question addressed by the Court in Brown was: “does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?”317 The Court held: “we believe that it does”,318 continuing that “in the field of public education, the doctrine of ‘separate but equal’ has no place”.319 The Court held that “separate educational facilities are inherently unequal” and the plaintiffs were, “by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”320 Segregation is explicitly prohibited under article 3 of the International Convention on the Elimination of All Forms of Racial Discrimination, under which States “particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction”.321 The Committee on Economic, Social and Cultural Rights, in its general comment No. 20 (2009), noted that, under article 2 (2) of the International Covenant on Economic, Social and Cultural Rights, States “must adopt an active approach to eliminating … segregation”.322 The Convention on the Rights of Persons with Disabilities uses the word “segregation” explicitly in article 19 on independent living and article 23 on children with disabilities.323 More broadly, article 3 lists “inclusion” as one of eight “general principles” of the Convention;324 pursuant to this, the Committee on the Rights of Persons with Disabilities has stated that “the right to non-discrimination includes the right not to be segregated”325 and has stated that segregation in areas such as employment and education violates the general obligations of States parties relating to nondiscrimination and equality.326 314 A/HRC/39/50, para. 30. The General Assembly has mandated the Open-ended Working Group on Ageing to consider the existing international framework of the human rights of older persons and identify possible gaps and how best to address them, including by considering, as appropriate, the feasibility of further instruments and measures. See General Assembly resolution 65/182, para. 28. 315 A/74/181, paras. 7 and 101 (e). 316 Plessy v. Ferguson, 163 U.S. 537 (1896), p. 543. 317 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), p. 493. 318 Ibid. 319 Ibid., p. 495. 320 Ibid. 321 In addition to this provision, apartheid is a crime for the purposes of international criminal law. The crime of apartheid is defined in the Rome Statute as “inhumane acts … committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups”. Rome Statute of the International Criminal Court, art. 7 (2) (h). 322 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 39. 323 Convention on the Rights of Persons with Disabilities, arts. 19 (b) and 23 (3). 324 Ibid., art. 3 (c). 325 Committee on the Rights of Persons with Disabilities, general comment No. 4 (2016), para. 13. 326 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), paras. 30, 64, 67 (a) and 73 (c). 43