Antidiscrimination clauses and prohibited grounds of discrimination in European Constitutions

Abstract

Summary

1.- Introduction. 2.- The comparison of antidiscrimination clauses in Constitutions: methodological difficulties. 3.- Antidiscrimination clauses in European Comparative Constitutional Law. 3.1.- Models and structures. 3.2.- Existing prohibited grounds of discrimination. 3.3.- Evaluation and new challenges. 4.- Conclusions 5.- References.

Abstract

Almost all European constitutions include explicit references to the prohibition of discrimination, usually through the inclusion of exclusive and specific clauses In addition, most of these constitutional dispositions include a list of the factors or elements that can lead to discrimination.

The current paper offers a comparison and systematization of the protected grounds of discrimination mentioned by the European constitutions, and which entail a number of methodological difficulties. Beyond the linguistic obstacles that analysing texts in very different languages present, it is necessary to define the scope of analysis, both from a legal and geopolitical perspective. Once the conceptual limits are defined, we can observe common patterns in respect to both the wording and structure of the antidiscrimination constitutional clauses as well as to the lists of prohibited grounds of discrimination.

Nowadays most European constitutions make explicit reference to the principle of equality between men and women, as well as to the inclusion of the factor of sex or gender as one of the explicitly mentioned prohibited grounds. As for these prohibited grounds, the most widely mentioned antidiscrimination prohibited grounds of discrimination in European constitutions are religion, sex or gender, phenotypical features, language, opinions and convictions, social or economic conditions and national or ethnic origin. The fact that over 75% of the explicit grounds fall within the aforementioned groupings provide support for the need to analyse existing common patterns in European constitutions. At the same time, only some of the constitutions include open clauses or grounds and this factor may hinder the determination of multiple or intersectional discriminations. It is also necessary to adapt these clauses and their interpretation to face possible future discriminations based on the massive use of personal data referring simultaneously to several discrimination grounds.