Ethnic identity as a challenge to antidiscrimination law: protection, positionality and liminality

Abstract

ABSTRACT Constitutions and antidiscrimination provisions tend to compartmentalise and operationalise ethnicity through religion, ethnic origin or country of origin, nationality, language and race. The growing focus on religion and race contributes to the entrenchment of ethnicity in religion and race, and this is not always fruitful. This article argues that antidiscrimination law should explicitly and robustly integrate ethnic identity as a protected (personal) characteristic in domestic law, independent of any other descriptors that may be recognised, and independent of existing group-based protections. Furthermore, this article argues that anti-discrimination infrastructure needs a provision of positionality and liminality. The concept of positionality facilitates the recognition of power dynamics present in the ascription of otherness, as well as the potential incongruences between identity ascription and actual self-identification. The concept of liminality enables the consideration of fluid and more flexible forms of self-identification across multiple public and private spaces.