Resistance to anti-discrimination law in Central and Eastern Europe – a post-Communist legacy?

Abstract

Post-communist Central and Eastern European (‘CEE’) legislators and judges have been resistant to equality and anti -discrimination law. This Article argues that these negative attitudes can be explained in part by the specific trajectory that EAL has taken in CEE during and after state socialism, which has differed from Western Europe. In the UK/EU, the formal guarantees of equal treatment and prohibitions of discrimination of the 1960s and 1970s were complemented by a more substantive understanding of equality in the 1990s and 2000s. This development was reversed in CEE—substantive equality, of a certain kind, preceded rather than followed formal equality and anti -discrimination guarantees. The State Socialist concern with equality was real, and yet the project was incomplete in several significant ways. It saw only socio-economic, but not socio-cultural inequalities (relating to dignity, identity or diversity). It was transformative with r egards to class, but not other discrimination grounds, especially not gender. While equality was a constitutionally enshrined principle, there was an absence of any corresponding enforceable anti discrimination right. Finally, the emphasis on the “natural ” differences between the sexes meant that sex/gender discrimination was not recognized as conflicting with women’s constitutional equality guarantees. Today, the lack of anti-discrimination legal guarantees has been remedied. However, equality and anti-discrimination law has been weakened by the fact that anti-discrimination rights have no indigenous history to draw upon, nor has substantive and transformative equality any fertile domestic conceptual ground within which to grow in relation to any protected characteristics other than class or socio -economic status.</p