ABSTRACT
One of the main themes in human rights jurisprudence concerns the duty of States to treat citizens with equal concern and respect. This does not mean that no differentiation between citizens may occur, but that inequality of treatment should not be based on factors which do not justify it. Thus, discrimination may be defined as morally unjustifiable as opposed to justifiable differentiation.1 It may be said that the latter occurs when a difference in treatment is accorded owing to behaviour which is the result of voluntary choice, the former when it is based on an attribute over which the individual has no control, such as sex or skin colour. Thus, in a society that allows or imposes discrimination in this sense, the groups affected will be entirely frustrated in pursuing their objectives in all areas of life because the disadvantage they are under cannot be removed. These statements alone, however, are inadequate as failing to deal with behaviour which may in a sense be the result of voluntary choice, but might also be said to be determined by social conditioning. Further, they do not explain whether differentiation would be justified if based on behaviour to which a person is morally committed owing to her membership of a certain group. Thus, it should also be argued that morally unjustifiable differentiation would also occur, at least presumptively, if different treatment was based on behaviour over which the individual had little real choice. Finally, this argument should encompass the notion that the physical attribute or behaviour in question may, exceptionally, be objectively relevant to the differential treatment and thereby could justify it. As Chapter 16 will demonstrate, anti-discrimination schemes tend to begin by outlawing discrimination on the basis of sex, race or skin colour. They then move on to a more developed conception of equality, which understands that discrimination occurs on the basis of a number of other factors, including sexual orientation, transsexuality, religion or disability.
