This blog-post is part of the project; Legislating Corona: Proportionality, Non-Discrimination and Transparency (PRONTO) funded by the Independent Research Fund Denmark (Grant number: 0213-00025B).
The division between freedom rights and socio-economic rights has long been debated and criticised. This division becomes incoherent if the policy goal is to ensure everyone effective human rights. The right to freedom of expression is of little use to a person without a home or going hungry. However – who is everyone when we talk about human rights – and who is left behind? And what are the underlying premises of freedom? Dramatic changes in the society – at least on the surface – may be used as an invitation to revisit old discussions in philosophy of law. As many non-discrimination law scholars have pinpointed, Covid-19 is a magnifying glass on the discriminatory mechanisms already at stake – also in the Nordic welfare societies like Denmark.
Suspect classifications in non-discrimination law, such as gender, age, disability and ethnicity represent historical and social subordination, social exclusion and discrimination. In order to achieve equality, the state´s (legal) responsibility is to both respect the individual´s freedom, and to ensure positive measures to break the discriminatory cycles in which both private and public sector risk generating and reproducing. Socio-economic rights, like social security and health, are a prerequisite for individual freedoms.
In Danish legal analyses on measures taken to address Covid-19, these discriminatory patterns have however, been neglected. Instead, freedom rights have been in focus, which may in itself prioritise certain groups (wealthy, “ethnic” Danes, “middle aged”-adults). This contribution seeks to bring socio-economic rights and the underlying discriminatory structures in the Danish welfare system to light,[i] which Covid-19 intensified but did not create. Examples of societal structures subjecting women, children and people with a foreign background other than Danish will be used in order to raise relevant foundational questions in an equality perspective.
Addressing women’s socio-economic rights in the private sphere
During Covid-19 an increase in violence against women by men was reported. Shelters are one obvious measure to ensure that women have a safe place to isolate from Covid-19 and violence. But what about the socio-economic discriminatory mechanisms already at play before Covid-19? They are part of the established and often indisputable legal relational rationales and structures in welfare law and society.
Firstly, the division of care and labour work between men and women is still gendered[ii]; women take more responsibility for unpaid care work.[iii] This risks negative social, emotional and economic consequences, like isolation and absence from the labour market, resulting in low pension contributions and wage stagnation.[iv] Further, the gendered wage gap remains a problem in the Nordics; men earn more than women. Third, more women than men have the sole responsibility for their children,[v] and are at risk of poverty traps.[vi]
In cases of gendered violence, the woman´s socio-economic rights are crucial both to escape violence, poverty traps and Covid-19. This can entail redirecting what is considered “his” and “her” property in the field of family law, for instance the division of pension rights when divorced. [vii] Further, regulation in the field of social law, based on spouses’ obligations to provide for each other, and the state’s subsidiary responsibility for public provision when the citizen cannot provide for herself, risk reproducing discriminatory mechanisms. The burden of proving that the spouse does not de facto provide for her, risks being too heavy – taking also into consideration the lack of solid free legal aid systems.[viii] Different ways of organising relations may be affected by different gendered possibilities and consequences, not only motivated by economic want.[ix]
Women’s economic independence creates and exacerbates vulnerability, especially when subjected to violence. The state’s stay home mandate to combat the global pandemic contributed to an outbreak of domestic violence – an endemic public health crisis. The failure of states to meet their legal obligations to address gendered violence under, for example, the Istanbul Convention, contributes to this situation and fails to ensure the rights and freedoms of women.
The question of comparison – rich and poor in the Nordics 2020
During Covid-19, and other situations understood as emergencies, arguments for prioritising between the different groups of people and needs are made using different legal models of legitimation. Such constructed discourses of needs should be critically assessed from an equality perspective; whose and what kind of needs are being compared? For instance, under social law it was made possible to limit social substantive and procedural rights, like visits for vulnerable children placed outside of their primary family to make public economic priorities, alongside protecting against transmission of Covid-19.[x] At the same time businesses got economic support from the state, which resulted in a dispute that implicitly raises foundational questions on what is considered as “contributions” to the Danish welfare society as a whole, and the questions of solidarity (EU, the national level).
It can be argued that economic priorities are – and should be – part of overarching political questions, and not legal questions. In order to combat socio-economic discrimination in the Nordics, actors in the legal discourses also have to critically discuss which disputes are made as the primary conflicts in the society, and how these conflicts are – and should be – recoded into law.
Vulnerable children placed outside their primary family, are at risk of being interlocked in the social system, where priorities between vulnerable groups are construed as the issue at stake. No transparent arguments were proposed to justify the restrictions of the children´s right to private and family life. The Government decided in April 2020 to give NGOs extra financial subsidies “Børnepakke” to reduce the negative effects of Covid-19 for vulnerable children.
However, as discussed in my Ph.D thesis in law April 2020 on poverty in the Nordics, legal structures and arguments are at risk of generating and reproducing poverty traps for vulnerable children and their families.[xi] That can be seen, for instance, in the national model, which lowers migrants’ social benefits based on their time spent in Denmark (compared to other citizens, mostly danes with a Danish background who have resided in the country for a longer time)[xii] and the relational legal structures and gender inequalities mentioned above.[xiii] These structures have not been critically revisited during the Covid-19 pandemic. Bearing in mind that the Covid-19 pandemic was not an unforeseen emergency[xiv] – many things could have been discussed and done to prevent the mentioned risks of discrimination before the “foggy” days in February-March 2020.
The risk of stigmatisation – poverty and ethnicity
The Danish Ministry of Social and Interior Affairs referred to the Danish Health Authority´s suggestions of different ways that vulnerable families of children placed outside their primary family could be together with distance (e.g. online, and games they could play with distance). The referral was made without any transparent justification, and regardless of the possibility that less restrictive measures could have prevented transmission of Covid-19 (like testing).[xv] Further, it was stated that when assessing the risk of transmission the family background and perceived behaviour by the family members should be taken into consideration.[xvi] This kind of individualising of the risk of transmission, is at risk of being stigmatising and may in itself be discriminatory, for instance, if related to ethnicity.
When it comes to ethnicity and Covid-19, there has been a focus on Covid-19 affected people with other ethnic backgrounds than Danish and transmission between people living in areas dominated by other backgrounds than Danish.[xvii] Statistical stereotypes may become stigmatising and discriminatory.[xviii] Lately, we have seen expressions related to distrust of people considered to belong to specific groups, like for instance with a foreign background.[xix] The risk of stigma and social exclusion is of concern in such a discourses.[xx]
Many of the people described bear a heavy burden on behalf of the society as front line workers (grocery shop workers, renovation personnel and cleaners, care workers etc.), and may have poorer living conditions compared to the average Dane, with a higher risk of transmission of Covid-19. Efficient legal tools must be available to address potential discrimination experienced by individuals.
The silence in the Danish legal discourses
With few exceptions, the silence in the Danish legal discourses on the discriminatory aspects mentioned above must in itself be brought to light.[xxi] The complex systemic elements contained within a discriminatory phenomenon are rarely assessed in the practice of (national) law, because of how the legal fields are structured and how the legal arguments are being framed. In the research project Legislating Corona: Proportionality, Non-Discrimination and Transparency (PRONTO) we seek to highlight questions of proportionality, transparency and non-discrimination in a Covid-19 context – striving to ensure the neglected voices in legal discourses are visible and heard.
Post.Doc. Ida Gundersby Rognlien, Ph.D.
[i] Drawing upon jurisprudential perspectives such as critical constructive feminist theories, see for instance Bartlett, T.K Feminist Legal Methods, 103 Harv. L. Rev 829 (1990).
[ii] For the development of the gendered labour market and social welfare system in Denmark, see Ketscher, K. Socialret : Principper – Rettigheder – Værdier. 4 utgave. København: Karnov Group, (2014).
[iii] Rognlien, Ida G. Hjemmehjelp i et likestilling- og diskrimineringsperspektiv Nordisk socialrättslig tidskrift, no. 17–18, pp. 9-38 (2018).
[iv]Albæk, K. Casier, F. & Larsen, M., Er kvindefag stadig lavtlønsfag?En analyse af sammenhængen mellem løn og andelen af kvinder i forskellige arbejdsfunktioner. Viden til Velfærd Det Nationale Forsknings- og Analysecenter for Velfærd (VIVE) (2019). Aune, H. Deltidsarbeid: vern mot diskriminering på strukturelt og individuelt grunnlag, 1. utgave. Oslo: Cappelen Damm Akademisk (2013). See also Hvidt, M. S. Danske sociale pensioner i EU-retlig og ligestillingsretlig belysning. 1. utgave. København: Djøf Forlag. (2016). CEDAW-komiteens Concluding Observations on Denmark 11 March 2015 CEDAW/C/DNK/CO/8
[vi] Rognlien, I. G. Fattigdom – Diskriminering – Relasjoner. Grunnleggende forsørgelsesrettslige problemer. PhD-avhandling. Det Juridiske Fakultet, Københavns Universitet (2020).
[vii] Rognlien, I. G. Skyggedom av enkepensjonsdommen : En feministisk gjenskrivning av dommen inntatt i Rettstidende 2006 side 262. The Woman Law Publication Series 101/2017, The Institute of Womens Law, University of Oslo. Rognlien, I. G. 2018, Hjemmehjelp i et likestilling- og diskrimineringsperspektiv, Nordisk socialrättslig tidskrift, no. 17–18, pp. 9-38. CEDAW committee Concluding Observations on Denmark 12 November 2019 E/C.12/DNK/CO/6. Sverdrup. T. Å skille seg til penger – eller gifte seg til fattigdom? In: Dette brenner jeg for: Festskrift til Hege Brækhus 70 år. Haugli, T., Gerrard, S., Hellum, A. & Svensson, E.-M. (red.) Bergen: Fagbokforlaget (2019).
[viii] Rognlien, I. G. Fattigdom – Diskriminering – Relasjoner. Grunnleggende forsørgelsesrettslige problemer. PhD-avhandling. Det Juridiske Fakultet, Københavns Universitet (2020).
[ix] CEDAW-committee General Recommendation no. 29 General recommendation on article 16 of CEDAW (Economic consequences of marriage, family relations and their dissolution) CEDAW/C/GC/29, 2013, and CEDAW-committee Concluding Observations on Denmark 11 March 2015 CEDAW/C/DNK/CO/8.
[x] Bekendtgørelse om mulighed for midlertidig fravigelse af forpligtelser for det offentlige og af privates rettigheder over for det offentlige på socialområdet som led i håndtering af Coronavirussygdom 2019 (COVID-19) § 1 BEK nr 559 af 30/04/2020 Now historical.
[xi] Rognlien, I. G. Fattigdom – Diskriminering – Relasjoner. Grunnleggende forsørgelsesrettslige problemer. PhD-avhandling. Det Juridiske Fakultet, Københavns Universitet (2020).
[xii] Andersen, L. G., Jacobsen, A. F. og Krusaa, N. M. (red.) Familier på integrationsydelse. En analyse af økonomi, afsavn og social eksklusion i et menneskeretlig perspektiv. Institut for Menneskerettigheder, (2018).
[xiii] For more information on how legal structures are at risk of producing and reproducing poverty traps in the Nordics, see Rognlien, I. G. Fattigdom – Diskriminering – Relasjoner. Grunnleggende forsørgelsesrettslige problemer. PhD-avhandling. Det Juridiske Fakultet, Københavns Universitet (2020).
[xiv] Experts have long warned that a global pandemic with devastating impacts for human health was certain. David P. Fidler, International Law and Infectious Diseases Oxford: Clarendon Press (1999) Bill Gates, The next outbreak? We’re not ready Tedtalk (2015) and Lawrence O. G. & Ó Cathaoir, K. E. Lurching from Complacency to Panic in the Fight Against Dangerous Microbes: A Blueprint for a Common Secure Future 67 Emory L.J. 337-396 (2018).
[xv] However, see discussions on priorities by Jakob Kjellberg Professor i sundhedsøkonomi, VIVE – Det Nationale Forsknings- og Analysecenter for Velfærd Øget testkapacitet er ikke (hele) svaret på coronaflaskehals, 24 September 2020.
[xvii] Information leder Den skæve smitte med COVID-19 fremhæver social ulighed – også i Danmark 18 May 2020 and Berlingske Vermund i kraftig kritik af smittede indvandrere: »Det er fuldstændig vanvittigt« Statens Serums Institut (SSI) 7 May 2020 Borgere med ikkevestlig baggrund udgør 9% af Danmarks befolkning men 18% af de COVID-19 smittede, Sundheds- og Ældreudvalget 2019-20SUU Alm.del – endeligt svar på spørgsmål 995 Covid-19 i Danmark. Epidemiologisk trend og fokus: Herkomst (ethnisitet): page 7-8.
[xviii] Timmer, A. Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law The American Journal of Comparative Law vol. 63 Nr. 1 pp. 239-284. (2015).
[xix] Danmarks Radio Mette F.: Indvandrerdrenge må ikke gøre det utrygt at tage S-tog 19 August 2020. Berlingske Vermund i kraftig kritik af smittede indvandrere: »Det er fuldstændig vanvittigt« 11 August 2020.
[xx] Lamont, M. Adressing Recognition Gaps: Destigmatization and the reduction of inequality American Sociological Review Vol. 83 nr. 3 pp. 419-444 (2018).
[xxi] With some exceptions, see for instance Professor in Social Law Kirsten Ketscher critiques on the previous Government’s socalled “ghetto”-policies. Jyllands-Posten Sådan vil Løkke aflive ghettoerne: Overblik over regeringens udspil 28 February 2018, and Alltinget.no Ny flygtningeydelse kan være i strid med grundloven: ”Man skal kunne leve et værdigt liv” 3 December 2018.