sou · GUB322 · 2007-01-01 00:00:00 — According to this Article, everyone is entitled to all of the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, col- our, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Prohibitions against discrimination are also contained in Articles 2.1 and 26 of the UN Convention on Civil and Political Rights, Article 2.2 of the UN Convention on Economic, Social and Cultural Rights, Article 2 of the UN Convention on the Elimination of All Forms of Discrimi- nation of Women, Article 5 of the UN Convention on the Elimi- nation of All Forms of Racial Discrimination, Article 2 of the UN Convention on the Rights of the Child, Article 2 of the Interna- tional () Convention (no 111) concerning Discrimination in Respect of Employment and Occupation, and of Article 14 of Convention for the Protection of Hu- man Rights and Fundamental Freedoms (Conven- tion). Union (EU) is founded on the principles of respect for human rights and fundamental freedoms. This is provided by Article 6.1 of the Treaty on European Union (or the ). According to Article 6.2, the Union shall respect fundamental rights as guaranteed by Convention for the Protection of Human Rights and Fundamental Freedoms. Court of (ECJ) has declared that human rights constitute an integral part of the general principles of law and should be safeguarded by the courts, and that the protection of human rights also embraces the rights contained in Convention.1 Through Article 13 of the , the Council, acting unanimously on a proposal from the Commission and following consultation with Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic ori- gin, religion or belief, disability, age or sexual orientation. Accord- ing to Article 21.1 of the Charter on Fundamental Rights of Union (the EU Charter), any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. We conclude that discrimination constitutes a violation of fun- damental human rights. Legislation is one means of combating dis- crimination and thereby supporting fundamental human rights. Proposals for such measures are made in this final report. for example, case 149/77 vs. Anonyme Belge de Navigation Aé- , 1978, p. 1365 (Celex 61977J0149), Swedish special edition IV, p. A new law against discrimination The situation as it currently stands, where there are numerous laws against discrimination, is difficult to comprehend overall. It could almost be described as patchwork legislation. Our aim is that the statutory proposals submitted in this final report will make the leg- islation both more effective and more comprehensible. We therefore propose the introduction of a new Prohibition and other Measures against Discrimination Act. The Act shall have the purpose of combating discrimination and in other ways promoting equal rights and opportunities regardless of sex, sexual identity, ethnic background, religion or other religious belief, disability, sexual orientation or age. The Act will apply to working life, education, labour market pol- icy activities, the setting-up or running of business operations, practising professions, membership, etc., of employee, employer and professional organisations, goods, services and housing, public meetings and public events, social welfare services, etc., the social insurance system, unemployment insurance, health and care services, public study support, compulsory military and com- pulsory civilian service, and also regarding public appointments and public assignments. The Act also contains provisions on measures and prohibi- tions of discrimination. The Act is divided into four chapters. Chapter 1 contains introductory provisions, including the defini- tion of what is meant by discrimination. Chapter 2 on working life deals with the relationship between employers and employees. Education and other areas of society are dealt with in Chapter 3. Chapter 4 deals with how the supervision of compliance with the Act should be arranged. Simultaneously with the introduction of the new Act, the fol- lowing will be repealed: The Equal Opportunities Act (1991:433); the Act (1999:130) on measures against discrimination in working life because of ethnic background, religion or other religious belief; of People be- cause of Disability Act (1999:132); the Act (1999:133) on a against Discrimination in Working Life because of Sexual Orienta- tion; the Equal Treatment of Students at Universities Act (2001:1286); the Prohibition of Discrimination Act (2003:307); and the Prohibition of Discrimination Act and other treatment that is unfair against children and pupils. treatment that is unfair other than discrimination at school are dealt with by a new Chapter 14 a of the Education Act (1985:1100). A new, merged ombudsman authority We propose that the current four ombudsmen against discrimina- tion – the Equality Ombudsman (JämO), the Ombudsman against Ethnic Discrimination (DO), the Disability Ombudsman (HO) and the Ombudsman against Discrimination because of Sexual Orientation (HomO) – be amalgamated into one authority, the Office of the Ombudsman against Discrimination (the Ombuds- man). The new Ombudsman will exercise supervision of discrimi- nation based on sex, sexual identity, ethnic background, religion or other religious belief, disability, sexual orientation and age. The Office of the Childrens Ombudsman (BO) should not however be amalgamated with the other ombudsmen. The new authority should be headed by an ombudsman collec- tive (comprising at least five). One of these should be the adminis- trative manager and the head ombudsman. We conclude that an important aspect of the issue of the Om- budsmans autonomy and independence is that the areas of respon- sibility and the functions of the Ombudsman should be clearly de- fined by statute and not by ordinance. It is consequently the Riks- dag that should determine the mandate and the Government would thereby not be empowered to unilaterally change the functions of the Ombudsman. In accordance with this, the areas of responsibil- ity and functions of the Ombudsman should be included within the Act. In this way, a better safeguard is provided for the author- itys autonomy and independence, as any amendments in the areas of responsibility and functions of the Ombudsman must be pre- sented to the Riksdag. Through the areas of responsibility and functions of the Ombudsman being regulated by law, emphasis is also placed on the importance of the Ombudsmans activities, first for those who are subjected to discrimination, second for the gov- ernment powers. The areas of responsibility and the functions of the Ombudsman should be regulated first in the new Prohibition and other Measures against Discrimination Act and second in a special Discrimination Ombudsman . The Ombudsman should ensure compliance with the new Pro- hibition and other Measures against Discrimination Act. budsman should, in the first instance, try to persuade those who are subject to prohibitions against discrimination and victimisation, and to the provisions on measures, to voluntarily comply with the Act. Those who are subject to the prohibition against dis- crimination and victimisation or to the provision on meas- ures should, upon request by the Ombudsman, be liable to 1.provide information about the circumstances regarding the operation that may be relevant to supervision, 2.provide information when the Ombudsman supports a request by an individual for the disclosure of information about credentials (working life and school), 3.give the Ombudsman access to workplaces and other premises where operations are conducted for investigations that may be relevant to supervision, and 4.attend deliberations with the Ombudsman. The duty to provide information according to item 1 and 2 does not apply if there are special reasons against doing so in the indi- vidual case. A party who fails to comply with a request, according to the above, may be ordered (subject to a default fine) by the Ombuds- man to fulfil the obligation. The Ombudsman shall, according to the Discrimination Om- budsman , 1.work to eliminate discrimination based on sex, sexual identity, ethnic background, religion or other religious belief, disability, sexual orientation or age does not occur in any areas of society, 2.also work generally to promote equal rights and opportunities, regardless of sex, sexual identity, ethnic background, religion or other religious belief, disability, sexual orientation or age, 3.work to promote equality between men and women and pre- vent and counteract racism, xenophobia and homophobia, 4.through advice and in other ways assist in ensuring that those exposed to discrimination can exercise their rights, 5.within their operational area –propose statutory amendments and other measures to the Government that can counteract discrimination, –provide information, –mould public opinion, –consult and have other contacts with authorities, business, in- dividuals and organisations, –monitor international developments, –monitor research and development work, and –take initiatives for other appropriate measures. The Ombudsman against Discrimination should for the time be- ing be an authority reporting to the Government. The Government should observe great restraint in the terms of reference for the Ombudsman. The Ombudsman should be given an autonomous power to par- ticipate in the Governments reporting to Discrimination, United Nations Commission on Human Rights, United Nations Commit- tee on Economic, Social and Cultural Rights and against Women and also be given powers to communicate independently with the convention body. It is proposed that the issue of a possible constitutional regula- tion of the status of the Ombudsman, and similarly the further constitutional deliberations on the answerability of the Ombuds- man, be investigated separately. It may be suitable to conduct this investigation within the framework of on the Constitution. It is important that the new authority is given sufficient re- sources to ensure that the work against discrimination can be strengthened and improved. As a comparison, it may be mentioned that the framework appropriation for JämO for the budget year 2006 amounts to , of which con- stitutes a framework appropriation for (Government 2005/06:01, area of expenditure 14, Report 2005/06:AU1, . 2005/06:109). For the DO, the framework appropriation for the budget year 2006 amounts to , of which constitutes the framework appropriation for the Board against Discrimination (Gov- ernment 2005/06:01, area of expenditure 8, Report 2005/06:SfU2, 2005/06:68). For the HO, the framework appropriation for the budget year 2006 amounts to (Government 2005/06:01, area of expenditure 9, Report 2005/06:SoU1, 2005/06:111). For HomO, the framework appropriation for the budget year 2006 amounts to (Government 2005/06:02, area of expenditure 14, Report 2005/06:AU1, 2005/06:110). Be- sides the tasks that currently lie with JämO, DO, HO and HomO, the new cohesive authority will be allocated responsibility for su- pervision of a number of new provisions contained in the new Act, including matters relating to new grounds of discrimination, pro- hibitions in new areas of society, protection of legal persons, ex- tended provisions on measures, measures for enhanced ac- cessibility, etc. Significant increases in resources will be required. Penal provisions on unlawful discrimination We consider that the penal provisions on unlawful discrimination contained in Chapter 16, Section 9 of the Penal Code should not be repealed. Decriminalisation would, in our opinion, be inappro- priate, both from the general preventive perspective and owing to the symbolic function of criminalisation. The fact that the govern- ment uses what may be regarded as the strongest expression of dis- sension – criminalisation – has a symbolic value and constitutes a means of emphasising that the government in views this issue as a matter for common concern. As we see the matter, gov- ernment responsibility and the resources that the government pro- vides via the and prosecutor service cannot be replaced by a system where work against discrimination is entirely transferred to the private sphere. An opposite stance, where discrimination would only be combated via damages in civil cases, could possibly be per- ceived to mean that the government has abandoned its interest in the issue of discrimination. We are also of the opinion that from the protective perspective it is not reasonable to decriminalise unlawful discrimination, as a pri- vate law regulation can never provide the same kind of protection for citizens. Despite problems regarding deficiencies in effective- ness and duplicity of regulation, we therefore consider that there is insufficient reason to repeal this penal provision. The question as to whether the provision on unlawful discrimi- nation should be made more stringent should be further investi- gated separately. Provisions in the new Act on Prohibition of Discrimination The grounds of discrimination Discrimination should be prohibited according to the following grounds of discrimination: sex, sexual identity, ethnic background, religion or other religious belief, disability, sexual orientation and age. Of these, discrimination on the grounds of sexual identity and age are new in Swedish discrimination legislation. is not defined in the statutory text. However, sexual identity refers to "a persons identity, appearance or behaviour as regards sex, regard- less of whether the identity, appearance or behaviour differs from what is traditionally deemed to constitute the norm for men and women respectively". Sex, as a ground of discrimination, is defined as "the biological sex as registered for a person at birth or the sex that is later deter- mined for her or him". Through the discrimination grounds sex and sexual identity, the discrimination legislation will cover the group transpersons. The group transpersons can generally be described as individuals who at times or always have been perceived to have or express or be perceived as expressing a sexual identity that at times or always differs from the norm for the sex that is registered for them at birth. This includes, for example, those who are or who are per- ceived to be transsexuals, transvestites, intergenders, intersexuals, transgenderists, drag kings or drag queens. Ethnic background, as a ground of discrimination, is defined, in the same way as the current regulation, as "that someone belongs to a group of people who has the same national or ethnic origin, race or skin colour". The term race should not be eliminated from the legislation where it appears. We conclude that there are no scien- tific grounds for dividing people into different races, nor is there consequently, from a biological perspective, any grounds for using the word race for people. However, the term race is used in inter- national conventions and EC directives to protect people from conduct that is based on a perception that there are different races and not because it is believed that various races exist or to underpin such a view. must satisfy its international obligations. In addition, there is a risk that protection against discrimination would be impaired if this term were to be eliminated. Disability, as a ground of discrimination, is defined, in the same way as the current regulation, as the permanent physical, mental or intellectual limitation of the functional capacity of a person as a consequence of an injury or an illness that existed at birth, having arisen thereafter, or which may be expected to arise. Sexual orientation has been used with various meanings in dif- ferent acts. We propose that the meaning that the term has in dis- crimination legislation – homosexual, bisexual or heterosexual ori- entation – is used consistently also in Chapter 5, Section 5 and Chapter 16, Section 9 of the Penal Code, but replaced by sexual life in the Act (2001:617) on Processing of within the Prison and . Protection for legal persons So far, the discrimination acts have only involved protection for natural persons. We now propose that the discrimination prohibi- tion in the new Prohibition and other Measures against Discrimi- nation Act should also apply to discrimination against legal persons in the areas of society where this is justified (cf. immediately below on the discrimination prohibitions). The term discrimination in Swedish law is essentially taken from EC law.2 The Equal Treatment Directive (76/207/EEC), the Direc- tive implementing the principle of equal treatment between per- sons irrespective of racial or ethnic origin (2000/43/EC), the Di- rective establishing a general framework for equal treatment in em- ployment and occupation (2000/78/EC) and the Directive imple- menting the principle of equal treatment between men and women in the access to and supply of goods and services (2004/113/EC) state that discrimination means direct discrimination, indirect dis- crimination, harassment and sexual harassment and instructions to discriminate. The various forms of discrimination are defined in the same way in the various Directives. The terms thereby have the same meaning, regardless of the grounds of discrimination. Government 1997/98:177 p. 23, Government 1997/98:179 p. 39, Government 1997/98:180 p. 27, Government 1999/2000:143 p. 28 and Government 2002/03:65 p. One of the Committees points of departure is that protection against discrimination should resemble each other as far as possible in relation to the various grounds of discrimination. It may be as- sumed that a uniform formulation of the definitions of fundamen- tal principles can contribute to the protection against discrimina- tion being of equal strength, regardless of the grounds of discrimi- nation. The meaning of direct discrimination, indirect discrimina- tion, harassment and sexual harassment and instructions to dis- criminate in the new Prohibition and other Measures against Dis- crimination Act should consequently be the same regardless of the grounds of discrimination. Direct discrimination means that someone is being disfavoured through being treated worse than somebody else is treated, has been treated or would have been treated in a comparable situation, provided the disfavour is related to sex, sexual identity, ethnic background, religion or other religious belief, disability, sexual ori- entation or age. Indirect discrimination means that someone is being disfavoured through the application of a provision, a criteria or a means of pro- ceeding that appears to be neutral but which is likely to disfavour particularly someone of a particular sex, particular sexual identity, particular ethnic background, particular religion or other religious belief, particular disability, particular sexual orientation or particu- lar age, unless the provision, criteria or means of proceeding can be objectively supported by a justified goal and the means to achieve the goal are appropriate and necessary. Harassment means conduct that is related to sex, sexual identity, ethnic background, religion or other religious belief, disability, sexual orientation or age, and which violates the integrity of a per- son. Sexual harassment means behaviour of a sexual nature that vio- lates a persons integrity. Instructions to discriminate means orders or instructions to dis- criminate against someone that are given to someone who has a subordinate or dependent relationship to the person who gives the order or instruction or who, in relation to such a person, has un- dertaken to perform a task. A failure to implement reasonable measures for accessibility for people with disabilities is also deemed to constitute discrimination. The Equal Treatment Directive (76/207/EEC), which relates to discrimination on the grounds of sex, the Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (2000/43/EC), which relates to discrimina- tion on the grounds of race and ethnic background, and the Direc- tive establishing a general framework for equal treatment in em- ployment and occupation (2000/78/EC), which relates to dis- crimination on the grounds of religion or beliefs, disability, sexual orientation and age, prescribe different levels of protection for dif- ferent grounds of discrimination. For instance, the EC provisions require more extensive protection for race and ethnic origin than, for example, for sex, disability and sexual orientation. However, the EC regulation is a minimum regulation. There is consequently no impediment for a going further than required by the Directives. There is reason to do so. One of the points of de- parture of the Committee is that protection should be as equal as possible for the various grounds of discrimination. For the grounds of discrimination covered by the current dis- crimination legislation – sex, ethnic background, religion or other religious belief, disability and sexual orientation – the protection is relatively similar as regards the areas of society that are currently within the ambit of the legislation. The gaps found in the current discrimination legislation are that sex is not subject to a discrimina- tion prohibition as regards the social services, etc., and also health and care services, and that disability is not covered by the discrimination prohibition as regards the social services, etc., the social insurance system, unemployment insurance and health and care services. As yet, there is no discrimination prohibition for sexual identity and age. We propose that the discrimination prohibitions in working life, as regards education, labour market policy activities, the setting up or running of business operations, practising a profession, mem- bership, etc., of employee, employer and professional organisa- tions, goods, services and housing, public meetings and public events, the social services, etc., the social insurance system, unem- ployment insurance, health and care services, public study support, compulsory military and compulsory civilian service, pub- lic appointments and public assignments. As regards the areas of society of goods, services and housing, public meetings and public events, the social services, etc., the so- cial insurance system, unemployment insurance, health and care services, public study support, compulsory military and com- pulsory civilian service, public appointments and public assign- ments, further investigation is required before the discrimination prohibition based on age can be formulated. Otherwise the dis- crimination prohibitions apply to all the discrimination grounds dealt with in the final report: that is sex, sexual identity, ethnic background, religion or other religious belief, disability and sexual orientation. Some of the discrimination prohibitions are carried over from current discrimination legislation. Some of the discrimination pro- hibitions are new. In particular, discrimination prohibitions relat- ing to the new grounds of discrimination, sexual identity and age, can be mentioned here. Moreover, discrimination prohibitions as regards certain parts of the education sector, public meetings and public events, compulsory military and compulsory civilian service, public appointments and public assignments, are not currently cov- ered by any prohibition rules. As regards sex, a discrimination pro- hibition has been lacking in the areas of society of social services, etc. and health and care services.