The Interpretive Compass Part 2: Theories of Equality and Non-Discrimination

Abstract

Chapter 6 explains the second limb of the interpretive compass—equality and non-discrimination. The concepts of equality and discrimination are highly complex and contested in law, politics, and philosophy. This Chapter argues that the text of the CRPD is based on a wide-ranging, eclectic, and under-developed conception of equality and discrimination which is prone to inherent tensions, especially in relation to the proposed abolition of mental health law. That is, it notes conflict between formal equality in abolishing mental health law to treat everyone the same and achieving substantive equality which is sufficiently sensitive to difference, as well as conflict between direct and indirect discrimination. I describe all of the different types of equality and non-discrimination which underpin the model of equality and non-discrimination in the CRPD. I argue in accordance with my overarching contention that a meaning of equality and non-discrimination which is consistent with the overall purpose of the CRPD to ensure the enjoyment of all of the rights of persons with mental impairments is to be preferred. That is, in accordance with international human law, all rights are seen as ‘universal, indivisible, interdependent and interrelated’. I propose a holistic vision of equality in which persons with disabilities are able to live a meaningful life with housing, education, employment, family, and leisure taking into account their impairments and where realization of one right should not be at the cost of sacrificing others.