The Malta Independent 22 October 2020, Thursday

Equality and Freedom — truly for all

Claudette Buttigieg Thursday, 24 September 2020, 06:58 Last update: about 27 days ago

How can a law that promises equality for everyone, at no cost to anyone, worry many people from a wide spectrum of society?

Easy: draft a law that is silent in terms of what will happen to some basic rights; refuse to address the concerns of the various professional associations and institutions; and, instead of treating them with respect, say that they are a privileged few (when they are anything but), determined to keep everyone else down.

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Then you get the Equality Bill tabled in July, and the attitude of Rosianne Cutajar, the junior minister.

Some amendments have been proposed by the government. But, to date, they have not been circulated among the stakeholders.

The worries focus on four sticking points. They look as though they revolve around detail, but each is also about a major democratic issue.

‘Superiority’

Clause 32(3) of the Bill states that if there is a conflict between the Equality law and any other law, other than the Constitution, then the Equality law trumps everything.

Why have the Opposition and others objected to this clause? Briefly, because it can be used to bypass Parliament.

In a democracy, voters elect the people who pass the laws. But, as written, the Equality law could see laws effectively rewritten or overturned by people who are not elected.

Lobbyists and adjudicating bodies will begin to read rights into the Equality bill that are not explicitly mentioned, but which they will say are implied.

In the latest amendments, Government added that the Equality law will not be superior to the European Convention on Human Rights, either. A good step.

But it does mean that the Equality law will be superior to the Criminal Code. Why?

And why will it be superior to the Embryo Protection Act? What kind of fundamental rights for embryo protection are we recognising if they can, in principle, be overturned — not by voters, or Parliament on their behalf, but by people who are unelected?

This is not just a question about one issue. It is a question about democracy itself.

‘Ethos’

Clause 6 of the Bill focuses on the exceptions, where this law will not apply. In most cases, people must be treated equally. But sometimes the spirit (‘ethos’) of an institution calls for exceptions. When recruiting, for example, the army and police can discriminate according to height, weight and even disability.

Such cases are clear. Others require debate. For example, the ethos of schools with a special character, like Church schools, or schools focusing on sport or the performing arts.

If the government can impose an ‘ethos’ on such schools, aren’t we saying a future government can practically take them over in all but name?

The question, therefore, is - how are we going to respect ‘ethos’ without allowing it to be used as a pretext to discriminate against individuals, not because they do not follow the ethos of that institution but because of other characteristics?

‘Ethos’ should not be used to discriminate against minorities or individuals. As legislators, we must guarantee the ethos while protecting against discrimination.

At the moment, however, parliamentary discussion on this point is suspended.

‘Conscientious Objection’

The draft law does not include any reference to conscientious objection, nor do the amendments proposed by the Government.

Yet conscientious objection is a fundamental right. It protects individuals from violating their conscience.

This issue is of serious concern to doctors, nurses, and pharmacists. They’ve proposed amendments. One concern is that since the Equality Bill is superior to the criminal code, they may end up obliged to handle procedures, such as abortion or surrogacy, which are currently illegal, under the pretext of equality.

The doctors have been constructive. They have suggested that Government should provide a directory of those doctors who offer services which may not be offered by all doctors. Hormone replacement for transgender persons (especially children) is a case in point.

This idea of a directory was recently put forward by LGBTIQ+ Gozo. It is a good idea. It offers choice without creating embarrassment, either for those who are not comfortable offering certain services or for those needing such services.

Of course conscientious objection should not be abused. It should not be used to refuse to bake a wedding cake for a gay couple.

And it certainly does not cover the scandalous case that came to my attention recently, when a patient, already lying on the bed of an operating theatre, was refused the operation because the surgeon read that the patient was HIV positive (something that had been clearly listed in the pre-operation file).

‘Religious Freedom’

The notion of religious freedom is totally absent from the Bill. There is a growing concern that a clear guarantee of religious freedom is needed.

It is a fundamental European freedom, granted by secular free societies, and a basic requirement in European legislation. Its exclusion may be interpreted as intent to undermine this right.

Let us be clear. This is not a zero-sum game between, say, Church schools and LGBTIQ+ NGOs. I am in touch with many stakeholders and what I wrote here reflects their general position.

To sum up, the Equality Bill deserves more dialogue and open-mindedness from everyone. We should all champion equality, but unless the Bill is handled with sensitivity and attention to detail, we will not be able to guarantee equality and freedom for all.

 

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