Four years in the making, the Equality Bill is proving to be one of the most controversial pieces of legislation in recent Maltese history. Heralded by the government as a tool to mainstream equality across all levels of society, it has been equally lambasted by doctors, teachers, pharmacists and religious activists alike and has even prompted a hunger strike outside Parliament.
There seems to be consensus that this law will change society as we know it, only no agreement as to how.
What is the Equality Law proposing?
Malta already has a state entity intended to safeguard equality, the NCPE, but its remit is mainly that of an equality promoter and advisor.
The proposed Equality Law will replace the NCPE with a more powerful Human Rights and Equality Commission, which will be given the added responsibility of looking into discrimination complaints from the general public and deciding whether or not to forward them to the Equality Board.
An entirely new body, the board will be chosen by the Prime Minister and will be chaired by a retired judge or magistrate or by an experienced lawyer, and also include three lawyers and a non-legal person with five years experience in human rights.
It will have the power to order remedial action and damages ranging up to €10,000.
How does the law define discrimination?
Seeing as the law intends to “mainstream” equality, it intends to protect people from all kinds of discrimination – from the oft-spoken-about ones like gender, nationality, age and sexual orientation to the less obvious ones like genetic features, health status, language or social origin.
People can also complain that they were discriminated against on a combination of protected characteristics, such as if someone claims a restaurant refused to serve her because they’re a Muslim woman.
Discrimination can be direct, such as refusing to hire someone because they’re gay, or indirect, such as unnecessarily imposing a minimum height requirement on job applications simply because men tend to be taller than women. It also covers harassment, attempts to stir up hatred or violence against someone on the basis of a protected characteristic, and victimisation, such as if an employer treats an employee less fairly for having disclosed information on corruption.
Are there any exceptions?
There are several clauses intended to prevent abuse, such as allowing banks to refuse its services to people if they pose a genuine financial risk, allowing religious schools to only hire believers as religion teachers, allowing less favourable treatment in the army on the basis of age and disability, allowing schools and workplace to adopt measures to favour the integration of students with disabilities, and allowing the government to set its own migration laws without the risk of being sued for discrimination.
Workplaces will also be allowed to implement positive discrimination practices if the aim is to achieve equality in practice.
Crucially, the burden of proof lies with the accused, meaning anyone sued for discrimination will have to prove that their actions weren’t discriminatory. However, if the board deems a report to be frivolous, vexatious or filed in bad faith, it can order the plaintiff to pay the judicial costs as well as fine them up to €500.
What about the supremacy clause?
A bone of contention, which has been flagged by doctors, pharmacists and Church schools, is a clause which dictates this law will be supreme to all laws of the land, except the Constitution, the European Convention Act and any future Act of Parliament which amends the law.
This supremacy clause has been inserted just in case any present or future laws are found to be discriminatory in terms of characteristics not protected by the Constitution offers, such as genetic features and social origin.
It will also be much cheaper to file a case with the Equality Board than to open a constitutional case.
However, some people have warned that this clause could create unwanted side effects. Former EU Commissioner Tonio Borg has postulated that people will be able to appeal for the legalisation of abortion on the grounds of discrimination based on social origin, ie. “Rich people can get an abortion in the UK but poorer people cannot, therefore the lack of abortion in Malta is discriminatory”, and that homosexual couples will be able to appeal for the legalisation of surrogacy on the grounds that the current IVF laws discriminate against them.
The Medical Association of Malta has warned that doctors will risk getting sued if they refuse to provide euthanasia, while the Pharmacy Council has claimed it will reduce pharmacists to robots, unable to take decisions according to their conscience.
Why doesn’t it allow for conscientious objection?
Critics of this law, specifically doctors and pharmacists, have proposed legal safeguards for their professions in the form of clauses which will allow them to refuse to provide services that go against their conscience.
Conscientious objection is already a feature of Maltese law; pharmacists are allowed to conscientiously object to stock the morning after pill and doctors were allowed to register as conscientious objectors when amendments to the IVF law passed a few years ago.
However, including such a clause in the Equality Law (as opposed to laws regulating individual services) risks opening up a can of worms as it would allow doctors to “conscientiously object” to treating people on the basis of their sexual orientation, nationality, political beliefs or other protected characteristics.
While the Code of Ethics for doctors already prohibits such discrimination, the Equality Law will be supreme, meaning the insertion of conscientious objection clauses could defeat its entire purpose.
If Malta ever legalises abortion, chances are doctors will be allowed to register as conscientious objectors, which means they won’t carry out this practice on anyone. Meanwhile, the Equality Law will allow people to claim damages from doctors who refuse to give them an abortion on the basis of a protected characteristic, such as because they’re black, Catholic or bisexual.
Doesn’t this law threaten our freedom of choice?
Despite all the talk about supremacy clauses and conscientious objections, it is here that the Equality Law is likely to face its real test.
Discrimination is still a sad fact of life in Malta, and the people who are most discriminated against are often also the most disenfranchised, limiting their options to seek redress, but the line between Person A’s right to personal freedom and Person B’s right not to be discriminated against can be a very blurry one.
Derek Spiteri recently staged a two-day hunger strike in front of Parliament for precisely this reason, telling Lovin Malta he’s scared the new law will see him get fined for publicly preaching the Bible’s views against homosexual intercourse and parents forbidden from speaking against the way homosexuality is taught at school.
And while these views should certainly be challenged head-on in modern society, the moment fines start being issued is the moment society risks slipping into dangerous waters.
Take the recent case of anti-irregular migrant protestors who reported a Black Lives Matter activist for hate speech because she raised the middle finger at him. Could the Board interpret the activist’s reaction as abusive behaviour which instigated hatred on the basis of the protestors’ political beliefs?
What if someone speaks out in favour of abortion? Will the Board be obliged to listen to complaints that this amounts to instigating violence on the basis of an embryo’s age? Some people may well believe so, but if the Board takes these complaints seriously, it will have a seriously chilling effect on free speech.
It’s not only hate speech either. Life isn’t always that clear cut and people can feel that they were discriminated against when it isn’t actually the case.
For example, what if two equally qualified candidates, a man and a woman, apply for the same job, leaving the employer to base their decision on who was more impressive during the interview? Will the rejected candidate be able to claim damages from the employer on the basis of gender discrimination? How will the employer explain in a court of law that the chosen candidate just had a better vibe?
What if a man walks into a convenience store and passes lewd comments to the salesperson? Will the salesperson have to serve him or risk getting sued for discrimination?
And what if two people get into a fight over something completely unrelated to discrimination? Can one of them claim discrimination and force the other party to prove him wrong?
While people who file frivolous complaints risk getting fined, the law makes it clear that the burden of proof lies with the accused. If the case involves one person’s word against the other, things can get very blurry very quickly.
The proof of the pudding is in the eating and all eyes will be on the Equality Board to see how it uses its powers. If it uses them well, it could help usher in a new era of rights for people made to suffer through no fault of their own, but if it slips up, there’s a real risk that it can create entirely new injustices.
Cover photo: Left: Opposition MP Edwin Vassallo joins a recent rally against the Equality Bill (Photo: Edwin Vassallo: Facebook) ; Right: Parliamentary secretary for equality Rosianne Cutajar addresses the ‘Sexual Orientation, Gender Identity, Gender Expression and Sexual Characteristics (SOGIGESC) Unit’s Annual Conference (Photo: DOI)