The Equality Bill meant to widen anti-discrimination laws could end up encroaching on fundamental human rights, give rise to legal uncertainties and fuel frivolous claims, a lawyer working for a Christian conservative NGO has warned.
Unveiled last December by the Civil Rights Ministry following a public consultation period, the Bill was hailed by the government as being testament to its commitment to strengthen human rights and equality laws.
However, Adina Portaru, a Romanian legal counsel working in Brussels for the organisation ADF International, has urged legislators to reject the Bill, saying it would have a significant detrimental impact on citizens’ everyday life freedoms.
ADF International is a global partner of Alliance Defending Freedom, an American conservative Christian non-profit organisation with the stated goal of "defending the right to hear and speak the Truth through strategy, training, funding, and litigation".
Alliance Defending Freedom has gained notoriety in the US for its legal efforts to criminalise sodomy, make it legal for shop owners to refuse to serve gay people and allow organisations such as the Scouts to discriminate against gays. ADF has also actively defended a law in Belize that made gay sex punishable by a 10-year prison sentence.
Dr Portaru's conclusion was reached in a study that was recently submitted to the Chamber of Advocates. It is based on EU and domestic anti-discrimination legislation. The study stresses the Bill would reduce diversity and legal certainty and would undermine basic freedoms such as those affecting expression, association and religion.
In her critical analysis, Dr Portaru points out that the Bill fails in terms of its foreseeability, predictability and legal certainty due to the use of vague terms open to a wide range of interpretations. The study highlights numerous examples, starting from the definition of harassment.
It states that such abuse shall be deemed to occur “where an unwanted conduct related to one or more of the protected characteristics(…) has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment
“It shall not be lawful for persons to publish, display or broadcast (…) any advertisement which (…) might reasonably be understood as indicating an intention to discriminate.”
The Bill also prohibits discrimination on vague and subjective grounds, among which family responsibilities, gender expression, gender identity or sex characteristics.
“The law should always be clear and easy to interpret. The proposed Equality Bill, however, contains many vague paragraphs. How should the regular citizens know if they are acting according to the law,” Dr Portaru asks. “This would create a climate of suspicion and mistrust, of ‘you can’t say’ and ‘you can’t do that’, unless you want to end up in court.”
Another major concern flagged by Dr Portaru refers to the “presumption of guilt”, which the Bill would establish. It is being proposed that anyone accused of a breach would be assumed to be guilty and would have to prove his/her innocence and not vice versa.
“There is no way a defendant can prove that their actions did not intimidate or offend the alleged victim. If we base law on subjective perceptions and sentiment, there will be abuse and exploitation,” Dr Portaru stresses.
She notes that the presumption of innocence is one of the basic procedural guarantees representing an essential element of the right to a fair trial.
The proposed law could also pose threats to religious freedom and freedom of conscience, the expert argues. Such conclusion, also raised by Dr Portaru in the renowned Oxford Human Rights Hub, relies on the fact that it would become unlawful to refuse to provide goods and services even if such provision would be in direct violation of one’s deeply held moral or religious beliefs. In view of this, the Bill would create irresolvable moral conflicts by forcing citizens to choose between their business and their belief, she warns.
This could give rise to a number of awkward situations, she adds.
“Could a printer refuse to print pornographic material because this contradicts his deeply-held moral beliefs? Would a Catholic school be allowed to hire only Catholic teachers and staff in order to maintain its identity? Would that be considered discrimination on the basis of religion or ethnic origin?”
The study concludes that the Bill is a one-size–fits-all-approach that reduces diversity in the name of so-called equality.
“It would actually cause the disease it wants to cure: it would create some specially protected groups in society while putting every citizen and business owner at risk of being sued on vague and subjective grounds,” Dr Portaru warns.
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