Sunday, 29 September 2013

Institutional Discrimination - Call it Out

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In February 1999, Sir William Macpherson published his report into the Metropolitan Police ("the Met") and their handling of the murder investigation of the late Stephen Lawrence.

At that time, one of the controversial assertions made in his report, was that the Met was "institutionally racist".  This is the definition used by Sir Macpherson:

"The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people."
(Home Office, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny, February 1999, para 6.34)

While the Macpherson Report had "race" as its focus, the definition provided can easily be expanded to encompass the other protected characteristics within the Equality Act 2010.

"The collective failure of an organisation to provide an appropriate and professional service to people because they share a Protected Characteristic, whether directly or indirectly. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and stereotyping which disadvantage people because they share a Protected Characteristic, whether directly or indirectly as the case may be."
Or words to that effect, replacing reference to "race" with "disability" or "age" and so on.  

The wide ranging application of Macpherson's definition has already been realised by a number of public authorities.  The definition has been used to inform their training in and understanding of equalities within their own policy framework.

However, nearly fifteen years on, the same cannot be said of every public service.    

In this article, I will examine the term institutional discrimination with reference to various Protected Characteristics.  I will also demonstrate where more work needs to be done in order to engender that cultural change, in "processes, attitudes and behaviour..." as identified by Sir Macpherson when addressing institutional racism within the Met. 

Example 1 - The Bedroom Tax

Readers may not be fully familiar with the full application of the policy described by the current UK Government as "the spare room subsidy" or more popularly coined as "the bedroom tax".

This policy cut the level of housing benefit paid to single people, couples or families with adult children who lived in public sector housing with more bedrooms that their assessed need.  In the case of a couple (without children) one double bedroom was deemed suitable.  This was also the case for single people or single parents who may only have their children stay with them for part of a week.

Disabled people were also covered by the new policy decision.  However, what was not taken on board by the UK Government was the lack of suitably sized and suitably located accommodation for disabled people, single people without children or couples living alone.  There was also a lack of appreciation to what purpose the extra bedroom was put.

For example, in the case of a disabled person who is a Kidney patient - and awaiting a transplant - the extra bedroom may be used to store essential medical equipment, including a hospital bed (or re-laxer chair), sink, dialyses machine, filters and other associated paraphernalia required by that patient for their day to day living.  It is also likely that that machine, together with its filter technology will have been permanently plumbed into the cold and waste water mains. 

The extra bedroom, in this case, is being used for a specific purpose.  It is also being used as an alternative to the patient taking longer term stays in hospital.  The patient's partner is usually the full time carer of the patient and will have received specialist training to assist their partner through their dialyses.  This approach is saving the NHS and also the Taxpayer money.

In the case of a single parent, estranged from their former spouse, but retaining full parental responsibilities and rights, the extra bedroom may be necessary to accommodate the children when they stay with that parent.   

In this scenario, the blind classification system adopted by the UK Government, a kidney patient, despite saving the Taxpayer money, will no longer be entitled to financial support to fund the spare room.  The single parent, who relies on the spare room for their children, will no longer be entitled to financial support for that room.  In both cases, the room will be classified as a bedroom, an extra room, surplus their assessed requirements.

Example 2 - Non Binary Gender

It is a common assumption that there are only two categories of gender - male and female.

To a certain extent, this assumption follows the sexing of a child at birth and the continued assumption that that sex will lead to a particular gender identity.

However, as a child grows and becomes more conscious of their own identity, they may find both the cultural gendering and their prescribed biological sexing difficult to reconcile.  The conflict may present at any age and in no particular prescribed manner.

Some people may grow up biologically female and yet identify more closely with the male gender.  Other people may grow up biologically male and identify themselves as female.  In both cases, some people may not identify with either the male or female gender, nor accept their prescribed sex given at birth.

The legal system has evolved - following a number of Human Rights challenges - to recognise that someone may wish to have their gender reassigned.  The law also protects someone, at whatever stage in their gender reassignment process, from discrimination.

Taking this into account, toilet and changing room facilities remain prescribed in many cases as either male or female.  Additionally, passports and birth certificates, both require a gender identity to be provided as either male or female.  It is noted, that in some cases, this culture has begun to change.  Nepal was one of the first countries to recognise another gender "X" in formal documents and other some venues have at least considered introducing some gender neutral toilets.

However, despite greater understanding and legal changes, the culture remains predominately discriminatory against non-binary gender people.

Example 3 - The Court System

The legal system is full of tradition and established models of work.  This culture extends to features, facilities and institutions through which the legal system operates.    

Court Rooms traditionally see the Judge sitting on a stepped, higher level, than the well of the Court or the Public Gallery.  Witnesses are usually required to enter a "Box", swear an Oath before God and stand to give evidence.

The majority of buildings are not fully accessible through the main entrance, host Court rooms in inaccessible locations and predominately contain features to accommodate the utility of the majority - namely able bodied, non disabled people.

To a certain extent, one has to acknowledge legacy issues, particularly concerning buildings and facilities built to a standard not accepted today.  However, this explanation has to be taken in context of legislative, jurisprudential and societal change.

The European Convention on Human Rights ("the Convention") was written with an Article 6 absolute right to a fair hearing.  The Disability Discrimination Act was passed by Parliament in 1995 followed by the Equality Act 2010 (disability and religion / belief are protected characteristics within the Equality Act).  The Human Rights Act 1998, brought the Convention into domestic law and the Scotland Act 1998 provided for the Scottish Parliament to encourage equal opportunities.

In addition, disabled people have featured more heavily in social policy and policy development.  A new societal understanding of disability has been encouraged and people who do not hold any specific religious conviction have their views recognised too, in addition to any traditional religious systems of belief.

Institutional Discrimination in Context

Bedroom Tax

In the first example, we see that both the disabled person (the kidney patient) and the single person (the parent) face discrimination against their own particular circumstances.

The Government has approached the Policy decision to withdraw financial support for extra bedrooms from the perspective of cost.  The policy primer; cut the cost of housing benefit, save the tax payer money and cut the budget deficit - look good to the voters.

Although the UK Government did consult concerning their policy, they ignored the representations made.

The policy discriminates against disabled people, who require a spare bedroom, as a consequence of their disability.

The policy also interferes with the respect for family and private life.  This is a Human Right found in Article 8 of the Convention.  It also likely indirectly discriminates against men, as single parents, who are statistically less likely than women to hold "full time" caring responsibilities for any children.  (Indirect discrimination occurs where an apparently neutral policy, criteria or practice has a disproportionate effect on one group of people more so than others).

The UK Government was aware of these policy impacts.  Yet, despite being made aware, the policy continues under the auspices of expediency.  In this case, the need to save money.

The policy is an example of institutional discrimination for that reason.      
Non Binary Gender

As described above, non binary gender people are protected from discrimination at any stage in their gender reassignment process or if they are perceived to be undergoing a gender reassignment process.  Yet, the Passport still requires to bear either a Male of Female gender identity.  Toilets and changing rooms remain focused on either male or female gender roles.

If you do not subscribe to either a male or female gender identity, what do you do about your Passport or which set of changing rooms do you use?

The culture of expediency is found here as well.  It is easy to use only male or female gender identities, that reduces the need for training of staff around the issues, the redesign of Passport form and booklets or changing the policy around toilet designs.  It is also easier to accept and go with the pre-existing convention, than seek to challenge it and thus have to face questions from the curious public about new ways of working.

This is institutional discrimination.  

The Court System

Direct disability discrimination can not be justified in law.

Almost 20 years have passed since the advent of the Disability Discrimination Act.

Public services have been put on notice for some time that old ways of working - which excluded disabled people - were not acceptable.

Similarly, public services should have also been aware that their legal duties do not stop with a limited range of reasonable adjustments.

The legal duty is both anticipatory and continuing.

Yet, disabled people, with a range of mobility related impairments are routinely discriminated against in both the facilities and accommodation they are presented with.

If someone is in a wheelchair, how is that person to give evidence from a "Box" if it features a step and is not wide enough to accommodate a wheelchair user?  Are lawyers with mobility impairments able to apply for the role of Sheriff (Judge) knowing that the working environment is largely inaccessible?

Of course, it is possible to make reasonable adjustments.  However, the crux is that it would not be necessary to do this if our Court buildings were made accessible in the first place.

The situation is further compounded when new facilities are built or when existing facilities are refurbished and the old, discriminatory, inaccessible practices continue.

This is institutional discrimination.

A similar story is found concerning the swearing of a witness' Oath.

The Law recognises and prevents discrimination against people with religious beliefs or people without religious beliefs.  This is a qualified right, in that it is not possible to claim religious discrimination when providing public services (for example, for a Christian couple to refuse B&B accommodation to a Gay couple).

Yet, the standard Oath used in Court is the religious Oath.

It is assumed, almost entirely, that this Oath will be used because it has formed standard practice for so many years.  An alternative is available, however it is not readily used or advertised.

This too, is institutional discrimination.
Going Forward

It is easy to discriminate.  That is self evident. 

It is more difficult, perhaps because of cost, resource allocation, or some other reason not to discriminate.

It is also too easy to provide passive acquiescence to the discriminatory status quo.    

However, both society and the law accept that discrimination is unacceptable.

Just as Sir Macpherson found in his report concerning the Met, institutional discrimination needs to be exposed for what it is.  It requires public scrutiny, it needs to be talked about and services have to be aware of how their organisation operates, at an institutional level, in generating an acceptable culture of discriminatory practice.

It is important, that where institutional discrimination is identified as a problem that no attempt is made to cover it up, silence complainers, or apply selective memory to recording particular incidents because of "...processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and  stereotyping..."

The UK Parliament held a Committee investigation into the progress made by the Police, in the ten years following the publication of the Macpherson Report. 

It was noted here that all but a few of the recommendations made had been implemented and had it not been for Sir Macpherson drawing attention to the problem through the label "institutional racism" little if any, progress would have been made. 

This is why it remains important to "call it out" wherever "institutional discrimination" is found. 

Only then can we move forward to generate positive solutions for overall cultural and thus institutional change.