Breathe
By Fabiana Estrada
In its formal sense, the right to equality refers to the fact that all persons must be treated equally in law and before the law. This means that, on the one hand, legal norms must not make arbitrary distinctions between persons or be discriminatory and, on the other, there must be no unequal treatment in the application of such laws. This dimension of the right to equality is fundamental and protects essential values of the rule of law, such as freedom and non-arbitrariness: the ideal of living under a government of laws and not of persons.
However, our society was primarily built from the vision and contributions of a very small sector: white, heterosexual, cisgender, cisgender, able-bodied, able-bodied, cisgender men. The needs and aspirations of those who do not meet such parameters have historically been invisibilized and undervalued.
This calls into question the ability of law to ensure freedom and fair treatment, which are its raison d'être. What real freedom can we women aspire to, imprisoned by stereotypes that bind us in every aspect of our existence? What real possibility do young racialized people living in contexts of poverty and violence have of pursuing their dreams? How to be an active part of community life when living with a disability that hinders the most elementary tasks of daily life?
For historically discriminated groups, being taken into account has been a tireless struggle and what today is scornfully labeled as "wokeism" or despised as identity politics are nothing more than minimal achievements to make real and effective the principle of human dignity and that all people have fundamental rights, just because they are human beings.
Faced with this reality, the limitations of the principle of formal equality are evident. It is not enough for laws to be neutral and non-discriminatory; it is not enough for judges to be objective in their application of the law. Something more is required for rights to be truly universal. Positive measures, public policies and affirmative actions are needed to actively put on an equal footing those people for whom everything has always been more difficult. This dimension of the principle of equality is known as substantive equality.
It is about taking measures to correct disadvantages, break down barriers, banish stereotypes or eradicate violence, as a prerequisite for ensuring equal access to rights and opportunities. It is about creating the conditions for the choice of a life project to be a real possibility and for it to depend on merit, talent and personal effort.
In the case of persons with disabilities, the struggle for their rights led to the adoption of the Convention on the Rights of Persons with Disabilities and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, which completely revolutionized the understanding of disability.
According to the social model enshrined in these international treaties, disability is not merely identified with a person's physical, mental, intellectual or sensory impairments, but with the way in which these factors interact with the environment; that is, with the barriers erected when a person is confronted with physical spaces, rules and procedures or social attitudes.
This model emphasizes accessibility, i.e., the need to break down these physical, legal or social barriers, which is achieved through two types of measures: universal design and reasonable accommodation. The former refers to the construction of a world that takes into account the diversity of those of us who inhabit it. In access to services, information, political participation, mobility, in all environments, we should think of designs that do not leave anyone out. Reasonable accommodations, on the other hand, are the modifications and adaptations that are necessary in each particular case, when the design does not allow equal access to the environment in question.
Of course, all this must necessarily be done in consultation and collaboration with people with disabilities, under the slogan they have coined: "Nothing about us without us".
On this International Day of Persons with Disabilities it is vital to reaffirm our commitment to this vision that places dignity and human rights at the center. Working for substantive equality and an accessible world is not a favor or a passing fad, it is an international obligation of the Mexican State and a historical debt to millions of people who have been unjustly excluded.
*Federal judge in the 24th Collegiate Court in Administrative Matters. She was General Coordinator of Advisors of the Presidency of the SCJN and, for 15 years, Secretary of Study and Account in such Court. She focuses on gender, equality and non-discrimination issues.
The opinions expressed are the responsibility of the authors and are absolutely independent of the position and editorial line of the company. Opinion 51.
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