Age Discrimination Exceptionalism?

Age discrimination exceptionalism?

Wouter Vandenhole[*]

Discrimination on the basis of chronological age (in short: age discrimination) is an under-researched dimension of human rights discrimination law. In what follows, I will explore some of the conceptual challenges that age discrimination may pose. My background is in children’s rights law and human rights law. I approach children’s rights as the human rights of children, and children’s rights law therefore as part and parcel of human rights law.[1] Hence, my point of departure is that the approach to age discrimination in children’s rights law should be aligned as much as possible with the approach taken to (age) discrimination more generally in human rights law. This means that there is no absolute prohibition of differential treatment on grounds of age: differential treatment is permissible if a reasonable and objective justification can be offered. Such a justification requires a legitimate aim and proportionality between the differentiation and the aim pursued.

Non-discrimination and equality human rights treaty provisions contain a long list of grounds on which discrimination must be prohibited. The grounds that the general United Nations core human rights treaties have in common are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.[2] Except for the Charter of Fundamental Rights of the European Union (Article 21(1)), age is typically not included in such a list. However, most lists of prohibited grounds are semi-open: the open category of “other status” allows for inclusion of age. The European Court of Human Rights (ECtHR) – a regional human rights court that monitors the European Convention on Human Rights – seems to accept at least implicitly that age (difference) also comes under the category of ‘other status’.[3] The Court of Justice of the European Union (CJEU) considers non-discrimination on grounds of age as a general principle of EU law.[4]

In principle, I see no reason for age discrimination exceptionalism, that is, for treating age discrimination differently than discrimination on other grounds. Two counterarguments may be advanced against this position. First of all, reference could be made to the particular case law of the ECtHR, in which some grounds of differentiation are dealt with more strictly than others. Secondly, it could be argued that the difference dilemma, as epitomized by the best interests of the child principle, trumps the general human rights logic of addressing differential treatment. Both counterarguments are examined in turn below.

 

Does age differentiation require very weighty reasons?

 

All grounds are generally considered to be of equal importance. A different approach is taken by the ECtHR, which has accepted that some grounds of differentiation are particularly suspect. These particularly suspect grounds include gender, sexual orientation, birth out of wedlock, nationality, disability and ethnic origin (for the latter ground, the ECt.HR applies an even stricter approach).[5] Age has not been included in this list of particularly suspect grounds.

 

The consequence of considering a ground as particularly suspect is that ‘very weighty reasons’ are required in order to be able to justify differential treatment based exclusively on such a ground.[6] For now, the ECtHR has not yet held that differentiation on grounds of age requires weighty reasons – which is the logical consequence of not including age in the list of particularly suspect grounds.

 

Should the ECtHR require ‘very weighty reasons’ for age differentiation? Arguably, that depends on what unites the particularly suspect grounds The unifying element in the words of the ECtHR in the Guberina case is a concern with a:

 

“particularly vulnerable group in society that has suffered considerable discrimination in the past […]. The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice could entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs.”[7]

 

While Guberina concerned differentiation on grounds of disability and sought to address ableism, a similar reasoning could arguably be applied with the same force to ageism as well.

 

Under EU law, age receives different treatment compared to other non-discrimination grounds too, but then in the sense of less favorable treatment. Next to the Charter of Fundamental Rights of the European Union as a human rights instrument (comparable to a national constitution), EU law on non-discrimination also comprises of a number of equality directives (comparable to national legislation). To justify direct age discrimination, Article 6 of the Employment Equality Directive allows for a wide range of age exceptions from the principle of non-discrimination though.[8] It is therefore unlikely for the CJEU to consider age (in addition to gender, which receives strict scrutiny)[9] as a differentiation ground that would require particular justification.

 

In sum, even if the ECtHR were to accept age as a particularly suspect ground that requires ‘very weighty reasons’ for justified differentiation on grounds of age, that would not mean that age discrimination should be treated as an exceptional case in human rights discrimination law more generally, since the latter typically does not attribute more importance to some grounds over others.

 

Does the difference dilemma trump the general human rights logic?

 

A second counter-argument against treating age discrimination as any other discrimination, specifically with regard to children, could be based on the difference dilemma.[10] The difference dilemma, as coined by Minow,[11] is about the tension between the acknowledgement that children are equal to all other (adult) human beings, and the need for a child-specific approach. The dilemma lies in the fact that, “both neutral strategies that ignore difference and special treatment strategies that explicitly acknowledge difference backfire and curiously end up reinforcing or recreating the stigma of being different.”[12] Elsewhere, we have argued that drawing on the difference dilemma, children’s rights can be grouped in three categories: the equal rights that children share with adults; their differentiated (often enhanced) rights; and their special (protection) rights.[13] Special protection of children is epitomized by the best interests principle. So, could it be argued that the best interests principle requires special treatment of children (exceptionalism) in non-discrimination and equality law?

 

Article 3.1 of the Convention on the Rights of the Child (CRC) requires States to ensure that the best interests of the child are a primary consideration in all decisions regarding children, including in questions of differential treatment. The CRC Committee has assigned the best interests of the child a threefold status: that of a substantive right, an interpretative legal principle, and a rule of procedure.[14] However, the weight that is to be given in the abstract to the best interests of the child is unclear: does it imply prioritisation or does it trump the other rights and interests? Prioritisation of the child’s best interests means that, “[i]f a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen.”[15] In general, the best interests of the child do not trump other rights and interests. Article 3 CRC clearly reads that the best interests of the child shall be (only) ‘a primary consideration’, not the primary or paramount consideration. The best interests of the child are therefore to be balanced with other interests,[16] although they enjoy “a larger weight.”[17] In specific cases, where the child’s best interests are the paramount or primary consideration, for example in the context of adoption (see Article 21 CRC), the best interests of the child go beyond prioritisation, and become the decisive factor. Instead of an abstract approach, we have suggested a case-by-case best interests test, accompanied by three safeguards: the best interests of the child cannot be defined without hearing and taking into account the views of the child; the best interests needs to be defined by reference to all other human rights of the child; and the best interests of the child must be considered chronologically prior to and as hierarchically higher than other interests.[18] In this case-by-case approach, the best interests of the child do enjoy prioritisation, but they do not categorically trump other rights and interests.

 

What does this mean for the question of age discrimination? The CRC Committee has mainly emphasized that the best interests principle may require States to take, “appropriate proactive measures…to ensure effective equal opportunities for all children to enjoy the rights under the Convention. This may require positive measures aimed at redressing a situation of real inequality.”[19] In other words, in the CRC Committee’s view, the best interests of the child principle takes us beyond negative obligations of non-discrimination, and mainly necessitates differential treatment of children to bring about substantive equality. This may be the case between children and adults, and between children of different age ranges.

 

The ECtHR has argued that differential treatment is required if someone finds themselves in a relevant different situation, unless an objective and reasonable justification for equal treatment can be given.[20] It accepts that, “with regard to all actions concerning children with disabilities the best interest of the child must be a primary consideration.”[21] Even more so, where a family tie is established between a parent and a child, “particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent.”[22] In other words, sometimes the best interests of the child may trump the rights and interests of the parents. However, this argument was accepted in a case about differential treatment of adults; the Court has not extended this reasoning to questions of differential treatment of children so far.

 

It came closest to that position in juvenile justice cases about placement of children in detention pending placement in a suitable institution. In those cases, the ECtHR held that a difference in treatment between children in provisional placement in a remand prison and adults held in custody pending trial does not amount to discrimination, because, “it stems from the protective – not punitive – nature of the procedure applicable to juveniles.”[23] There was therefore an objective and reasonable justification for any such difference in the treatment.[24] A similar decision was reached in D.G. v. Ireland, where the Court held that in case, “there would be a difference in treatment between minors requiring containment and education and adults with the same requirements, any such difference in treatment would not be discriminatory stemming as it does from the protective regime which is applied through the courts to minors in the applicant’s position.”[25]

 

In sum, in the context of juvenile justice, children may be treated differently compared to adults in their best interests, for the sake of their protection. The ECtHR has not yet established in the context of juvenile justice that they must be, but it did so in a migration detention case. In that case, the Court had to assess the deprivation of liberty of an unaccompanied, five year old child that was irregularly on the territory of Belgium, in a detention center for adults. The ECtHR held that in view of, “the absolute nature of the protection afforded by Article 3 of the Convention [the prohibition of torture, inhuman and degrading treatment or punishment], it is important to bear in mind that [her being in an extremely vulnerable situation] is the decisive factor and it takes precedence over considerations relating to the [young girl]’s status as an illegal immigrant.”[26] In assessing the lawfulness of her detention, the Court found that the young girl’s detention, “in a closed centre intended for illegal immigrants in the same conditions as adults [took place in] conditions [which] were consequently not adapted to the position of extreme vulnerability in which she found herself as a result of her position as an unaccompanied foreign minor.”[27] In other words, differential treatment was required for protection reasons, given the position of extreme vulnerability.

 

A similar approach was taken by the Belgian Constitutional Court (BCC) on the question of the permissibility of euthanasia for children. In 2014, euthanasia was made possible in Belgium for children at their own request. The BCC held that heightened protection measures to safeguard the right to life were to be offered to children in comparison with adults, because of their vulnerability.[28] Those protection measures include a more restrictive scope of application (psychological suffering cannot justify euthanasia for children, nor suffering that will not lead within a short time span to death), a binding assessment of the competence of the child by a child or youth psychiatrist or psychologist is needed, and consent of the child’s legal representatives is required).

 

In conclusion, general human rights law principles on non-discrimination and equality can also be applied to children’s rights law. There are no strong reasons for age discrimination exceptionalism. Age differentiation does not require “very weighty reasons” to be justifiable in the current case-law of the ECtHR, and even if it were, that would not mean that age discrimination should be treated as an exceptional case in human rights discrimination law more generally, since the latter typically does not attribute more importance to some grounds over others. That does not mean that children are let down in general human rights discrimination law, since age differentiation in favor of children may be justifiable or even mandatory in light of the different situation of vulnerability or the best interests of the child.

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[*] Wouter Vandenhole holds the chair in human rights at the faculty of law of the University of Antwerp. Between 2007 and 2018, he also held the UNICEF Chair in Children’s Rights. Since 2018, he serves on the Faculty’s executive board as vice-dean of research. He chairs the academic working party of the University Foundation for Poverty Alleviation, and is the chair of the non-governmental north-south organization Broederlijk Delen. Wouter Vandenhole is a human rights and law-and-development scholar. His research interests include children’s rights, economic, social and cultural rights, and the relationship between human rights law and development. He is the lead convenor of an intensive training programme on sustainable development and human rights law, SUSTJUSTICE.

[1] Wouter Vandenhole, Children’s Rights from a Legal Perspective: Children’s Rights Law, in Routledge International Handbook of Children’s Rights Studies (Wouter Vandenhole ed., 2015).

[2] For more details and a thorough comparison, see Wouter Vandenhole, Non-Discrimination and Equality in the View of the UN Human Rights Treaty Bodies (2005).

[3] D.G. v. Ireland, App. No. 394/74/98, ¶ 115 (May 16, 2002); Schwizgebel v. Switzerland, App. No. 25762/07, ¶ 90 (June 10, 2010), https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-3160737-3518754&filename=003-3160737-3518754.pdf

[4] Case C-144/04, Werner Mangold v. Rüdiger Helm [GC], 2005 E.C.R. I-09981

[5] D.H. and others v. Czech Republic, App. No. 57325/00, ¶ 176, 196 (Nov. 13, 2007), https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-2439%22]}

[6] Guberina v. Croatia, App. No. 23682/13, ¶ 73 (March 22, 2016), https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-5332264-6646797&filename=Judgment%20Guberina%20v.%20Croatia%20-%20failure%20to%20take%20account%20of%20handicapped%20child%27s%20need%20in%20application%20of%20tax%20legislation.pdf. Note that the suspect nature of the ground of differentiation is not the only element that defines the scope of the margin of appreciation a state enjoys in assessing whether different situations justify differential treatment. Other elements that impact on the breadth of the margin of appreciation are “general measures of economic or social strategy”. When it comes to such measures, the margin of appreciation allowed to a State will usually be a wide one (Stec and others v the United Kingdom [GC], Nos. 6531/01 and 65900/01, ¶ 52 (March 22, 2016)). However, “even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination.” (J.D. and A. v the United Kingdom, Nos. 32949/17 and 34614/17, ¶ 83 (October. 24, 2019)).

[7] Id.

[8] See, e.g., Handbook on European Non-Discrimination Law, 192-196 (European Union Agency for Fundamental Rights and Council of Europe eds., 2018) [hereinafter Handbook].

[9] Philippa Watson, The European Court of Justice: Creative Responses in Uncharted Territory, in Social Rights Jurisprudence: Emerging Trends in International and Comparative Law 453, 468-73 (Malcolm Langford ed., Cambridge University Press, 2008).

[10] See generally Wouter Vandenhole and Gamze Erdem Türkelli, Advanced Introduction to Children’s Rights (2022).

[11] Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (1990).

[12] Martha Chamallas, Making All the Difference: Inclusion, Exclusion, and American Law by Martha Minow (Book Review), 18 Signs: Journal of Women in Culture and Society, 678, 679 (1993).

[13] Vandenhole and Erdem Türkelli, supra note 10, at 3.

[14] General Comment No. 14 on the Right of the Child to Have His or Best Interests Taken as a Primary Consideration (art. 3, para. 1), U.N. Doc. CRC/C/GC/14, para. 6 (2013).

[15] Id at para. 6(a).

[16] Id at para. 60.

[17] Id at para. 39.

[18] Wouter Vandenhole and Gamze Erdem Türkelli, The Best Interests of the Child, in The Oxford Handbook of Children’s Rights Law 203, 216-17 (Jonathan Todres and Shani M. King eds., 2019).

[19]  General Comment No. 14 on the Right of the Child to Have His or Best Interests Taken as a Primary Consideration (art. 3, para. 1), U.N. Doc. CRC/C/GC/14, para. 41 (2013).

 [20] Thlimmenos v. Greece, App. No. 34369/97, ¶ 44 (April 6, 2000); Stummer v. Austria [GC], App. No. 37452/02, ¶ 88 (July 7, 2011)

[21] Guberina v. Croatia, App. No. 23682/13, ¶ 73 (March 22, 2016).

[22] Schwizgebel v. Switzerland, App. No. 25762/07, ¶ 95 (June 10, 2010).

[23] Bouamar v Belgium, App. No. 9106/80, ¶ 67 (Feb. 29, 1988).

[24] Handbook, supra note 8, at 191.

[25] D.G. v. Ireland, App. No. 394/74/98, ¶ 115 (May 16, 2002).

[26] Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, App. No. 13178/03, ¶ 55 (Oct. 12, 2006).

[27] Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, App. No. 13178/03, ¶ 103 (Oct. 12, 2006)

[28] CC [Constitutional Court], Oct. 29, 2015, n  ̊153/2015, ¶ B.18.