Working toward Anti-Discrimination Legislation in Europe and Germany

By Swantje Koebsell (swantje_koebsell@magicvillage.de)
 

"Anti-Discrimination Now!" was the slogan of the 8th European Day for Disabled Persons, always taking place on May 5th. This day was introduced in 1992 to enable disabled people all over Europe to act in unison for anti-discrimination legislation. With a different slogan every year, disabled people in many European countries organize various activities to
make the public and the media aware of their situation. In Germany, in 1999 70,000 disabled people took part in 220 activities in 150 towns - the biggest turnout since the introduction of the day. Activities can be every type: demonstrations as well as handing out flyers, concerts, street theatre and other performances.

Anti-discrimination Legislation in Europe

An estimated number of 35,000,000 disabled people live in Europe and their legal situation differs from country to country. Oddly, some countries where one wouldn't expect it at all - like Hungary- do have the respective laws whereas Germany does not. To make sure that all disabled persons in Europe will be legally protected against discrimination disabled people in Europe fought for the inclusion of an anti-discrimination clause in the Amsterdam Treaty which sets the standards for all social legislation in the member states of the European Union. They were successful, in  a way. Article 13 is a non-discrimination article which specifically mentions disability. Unfortunately, this article has no direct impact on the legal situation of disabled people, it merely gives the European Union the permission to act against discrimination if it wishes to do so - and it might well be that we'll have to wait a long time for this to happen.

Situation in Germany

Something similar has happened in Germany. There is no anti-discrimination law yet, but still the German disability rights movement has had one critical success in this respect: We forced the federal government to include an anti-discrimination clause in the new German constitution. It became necessary as, after the reunification of  East and West Germany, certain parts of the old Western constitution became obsolete, in particular the main political goal stated therein: the pursuit of reunification.

The old constitution already included an anti-discrimination clause. Adopted in 1949 it focused basically on those groups whose, sometimes lethal, discrimination during the 3rd Reich had already been publicly acknowledged, such as Jews, Gypsies and Jehovah's Witnesses. Accordingly it stated that nobody must be discriminated against on the grounds of ethnic or racial origin, belief and, of course, gender. Disabled people were not mentioned. Surely they could refer to another statement made in the constitution: "The dignity of all Human beings is inviolable". Unfortunately the definition of
"dignity" proved to be as open for interpretation as the term "inviolable" and no protection could be gained from this.

Success of the Disability Movement

When the discussion about the new constitution arose, the German disability rights movement seized the opportunity to have their right to anti-discrimination included and the biggest coalition of disabled people's organisations ever known in Germany was established for this cause. It was a difficult process and until the very end nobody dared to predict the
outcome of the vote. In the end it was a close one but since 1994 the German constitution in article 3 paragraph 3 includes the words "There must be no discrimination against anybody because of her or his disability". This was a
major success for the German Disability Movement in two aspects: First in having it included at all, disabled people became more visible and their experience of discrimination acknowledged. Secondly it brought forth a change in
perspective. With the inclusion of this clause it became obvious that disabled people are not any longer the objects of charity but self-determined citizens.

Court Ruling Limits Impact

But even though the German disability rights movement is proud of this achievement, in daily life it has not proved to be very helpful, especially as the constitutional court, the legal authority to be called upon if violation of the constitution is suspected, is not very partial to the interests of disabled people. And when this court ruled that the anti-discrimination clause in the constitution does not entitle disabled children to the right to be educated in mainstream schools it became more than evident that special anti-discrimination action was needed.

Federal/State System

Disability rights activists have been fighting for this since 1991 when a mass petition was presented to the vice-president of the Bundestag, the German parliament. In Germany progress on this front requires fighting simultaneously on two different levels: on the federal  as well as on the level of the 17 Bundesländer (states). This is because under the German legal system many issues which are relevant for disabled people lie within the responsibility of the states, like education and building regulations. Presently only one of them - the state of Berlin - has its own law against discrimination of disabled people. Some of the others have been considering it for some time now, but usually claim that they can't afford it because it would cost  them too much money. So Berlin has made the first step in the right direction and even though its law is far from perfect, it is setting standards and other states will hopefully follow this lead.

New Possibilities at Federal Level

On the federal level there might soon as well be light at the end of the tunnel. The red-green government ( a coalition of the Ecologic and the Social-Democratic parties) proposed in their coalition paper the introduction of federal anti-discrimination legislation. To make it easier for them as well as to make sure our needs are met, disabled lawyers wrote a bill and presented it to the government for discussion. Until now nothing has emerged from this and it looks like disabled people in Germany as well as in Europe have to have great staying power, and time will tell who has the greatest.