Available via license: CC BY 4.0
Content may be subject to copyright.
Published with license by Koninklijke Brill |: ./-
© , |: - (print) - (online)
This is an open access article distributed under the terms of the 4.0 license.
Breaking the Vicious Circle between
Discrimination and Homelessness
Homelessness as a Protected Ground of Discrimination
Roxani Fragkou
Assistant Professor of Law, University of Groningen, Groningen,
the Netherlands
r.fragkou@rug.nl
Alexandros Tsadiras
Associate Professor of EU law, Open University of Cyprus, Nicosia, Cyprus
alexandros.tsadiras@ouc.ac.cy
Received: 15 May 2023 | Accepted: 18 August 2023 |
Published online: 7 December 2023
Abstract
Homelessness is without a doubt a global phenomenon, constantly increasing at an
alarming rate. Although discourse about homelessness is predominantly linked to
discourse about inadequate housing, homelessness does not only amount to a breach
of the right to housing, but furthermore constitutes a violation of a broad range of
human rights, including non-discrimination. This article discusses how homelessness
and discrimination mutually exacerbate and magnify one another, creating a vicious
circle. The article places homelessness in a human rights framework, arguing that
enhancing the anti-discrimination legislation is an essential component of breaking
this vicious circle. In particular, the article suggests acknowledging homelessness as
a protected ground under anti-discrimination law, illustrating how expanding the list
of protected grounds in anti-discrimination law in Europe is expected to reinforce
the efectiveness and coherence of the anti-discrimination legal framework and
encourage its implementation, by remedying some of its shortcomings vis-à-vis people
experiencing homelessness.
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
Keywords
homelessness – anti-discrimination – discrimination based on homelessness – equality
– indivisibility of human rights – protected grounds of discrimination – human rights
based approach
1 Introduction
Despite the considerable progress in economic and social development over
the past decades, homelessness still represents an enduring threat afecting
communities and individuals of all ages, genders and socio-economic
backgrounds across not only developing countries, but also some of the most
developed countries worldwide. Individuals who experience homelessness
face life course implications of housing insecurity, while communities struggle
to address the extensive array of needs within heterogeneous homeless
populations, including families, children, women and people experiencing
chronic homelessness. Homelessness is a lot more than a breach of the right to
housing though. Homelessness is a ‘global human rights crisis’. It constitutes
a widespread and severe violation of the full spectrum of human rights,
including the rights to life, to security of person, to health and, of course, of
the prohibition of discrimination. However, it has not yet been addressed with
the urgency and priority that ought to be accorded to such an extreme human
rights violation.
Against this background, this article discusses the vicious circle between
homelessness and discrimination, aspiring to explain how homelessness and
discrimination mutually exacerbate and magnify one another, creating a circle
of disadvantage which is dicult to escape. This analysis sheds light on the
issue’s complexity and emphasise the need for a comprehensive approach
to address it eciently. This article proceeds in two parts. First, it discusses
how the vicious circle between discrimination and homelessness is triggered
and operates. To address this, the article denes homelessness, overcoming
the barriers to reaching a commonly accepted inclusive and more exible
denition. Such a denition inevitably situates homelessness within a human
1 Report of the Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living, and on the right to non-discrimination in this context, Leilani
Farha, //31/54 (30 December 2015) para. 2.
2 Idem, para. 4. See also P. Kenna, ‘Housing rights: positive duties and enforceable rights at the
European Court of Human Rights’ (2008) 13(2) European Human Rights Law Review 206.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
rights framework and explores ways in which homelessness violates the
principle of equality and non-discrimination.
Next, this article suggests efective ways to break this vicious circle.
Thus, it becomes clear that what is at stake here is the potential expansion
of anti-discrimination legislation to include homelessness as a protected
ground, aiming at providing greater protection to individuals experiencing
homelessness against discrimination on the basis of their housing status. The
article reviews the principal literature regarding both topics: homelessness
and anti-discrimination, focusing mainly on the points where they intersect.
There is, indeed, a growing body of literature discussing the need to expand
the list of protected grounds to include socio-economic status or condition.
These outstanding studies, however, do not necessarily address homelessness
in particular as a protected ground. Homelessness is often viewed as a
consequence of poverty or other forms of socio-economic disadvantage,
rather than as a distinct category of discrimination. Overall, while there
may not be a large body of literature explicitly addressing homelessness as a
protected ground, there is certainly a case to be made for its inclusion in anti-
discrimination frameworks. Finally, emphasis is placed on the need to address
the discrepancy between law and practice, this approach aiming at ensuring
that human rights are safeguarded not just as theoretical concepts, but also as
legally binding and enforceable obligations.
2 The Vicious Circle Between Discrimination and Homelessness:
Architecture and Operation
In order to understand how discrimination and homelessness intertwine,
it is necessary to begin by dening homelessness. A clear denition of
homelessness will not only provide a solid foundation for this article, but it
will furthermore contribute to a better understanding of homelessness as a
human rights violation, which is essential to unearth the connections between
homelessness and discrimination and to develop efective and comprehensive
responses to homelessness, grounded in a human rights-based approach.
2.1 Attempting a Human Rights Denition of Homelessness
‘[T]here are as many classications and denitions of homelessness as there
are diferent points of view’. This section addresses the challenge of the lack
3 G. Tipple, S. Speak, ‘Definitions of homelessness in developing countries’ (2005) 29 Habitat
International 339.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
of a globally acceptable denition of homelessness, explaining its impact not
only on policy and program development, but also on data collection and
stressing the need for a comprehensive denition of homelessness.
2.1.1 Overcoming Barriers to a Universally Accepted Denition of
Homelessness
Dening homelessness is critical to exploring the extent and characteristics
of homelessness worldwide and to developing coherent strategies and policy
priorities. Put in diferent terms, who we dene as homeless determines
who we identify as such and, thereby, how we prevent and address the
phenomenon. However, although ‘[h]omelessness is perhaps the most visible
and most severe symptom of the lack of respect for the right to adequate
housing’, dening it proves to be a rather challenging task. Indeed, there
is no universally agreed denition of homelessness, with the established
denitions adopted by international agencies, governments, researchers or
civil society varying widely and ranging from the narrow (eg. deprivation of
physical shelter) to the broad (eg. adequacy of the dwelling, risk of becoming
homeless etc). This article, acknowledging the need for a more inclusive
4 Idem, 337.
5 As the Special Rapporteur, Miloon Kothari, has called homelessness in Report of the Special
Rapporteur on adequate housing as a component of the right to an adequate standard of
living, Miloon Kothari, /.4/2005/48 (3 March 2005) 2.
6 E. Cała–Wacinkiewicz, ‘Homelessness against the principle of indivisibility of human rights’
(2021) (1) Teka Commission of Legal Sciences 69; A. Ploszka, ‘A Homeless Bill of Rights
as a New Instrument to Protect the Rights of Homeless Persons’ (2020) 16(4) European
Constitutional Law Review 603.
7 S. Fitzpatrick, ‘The meaning of home and homelessness’, in S. Fitzpatrick, Young homeless
people (Palgrave Macmillan, 2000), 32–34. The UN has underlined that ‘the right to
housing should not be interpreted in a narrow or restrictive sense […]. Rather, it should
be seen as the right to live somewhere in security, peace and dignity’. The characteristics
of the right to adequate housing are clarified mainly in the ’s general comments No
4 (1991) on the right to adequate housing and No 7 (1997) on forced evictions. See ,
General Comment No 4: The right to adequate housing (art. 11(1) of the Covenant), adopted
13 December 1991, E/1992/23; , General Comment No 7: The right to adequate housing
(art. 11(1) of the Covenant): forced evictions, adopted 20 May 1997, E/1998/22. See also Tipple
& Speak (n 4), 342; /.4/2005/48 (n 5), 6–7; //31/54 (n 1) para. 7–18; Report of
the Secretary-General, Affordable housing and social protection systems for all to address
homelessness, /.5/2020/3 (27 November 2019) para. 3–4; , Typology on
Homelessness and Housing Exclusion (1 April 2005); UN , The Right to Adequate
Housing, Fact Sheet No. 21/Rev.1 (2009) 22.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
and exible denition, which would not simply focus on people lacking
physical housing, but would also capture the experience of people living in
temporary or crisis accommodations, those living in severely inadequate and
insecure accommodations, as well as people who lack access to afordable
housing, denes homelessness as ‘a condition where a person or household
lacks habitable space with security of tenure, rights and ability to enjoy social
relations, including safety’.
However, what is remarkable with the term ‘homeless’ – and this is
something fully endorsed by this article – is that it does not only indicate
the lack of housing, but also identies a particularly vulnerable social
group subject to stigmatisation, social exclusion and criminalisation. ‘[H]
omelessness is looked at as a question of privacy, but it is clearly also an issue
of identity and of space’. A constructed social group with such a strong link
between the deprivation of a home and the deprivation of a broad range of
rights as no other social group, that, once stigmatised, is further neglected
and discriminated against. A true vicious circle, as this article shows in the
following section.
2.1.2 The Adverse Impact of the Lack of a Globally Acceptable
Denition of Homelessness on Data Collection
The lack of a globally agreed denition of homelessness has also impacted
adversely on the disaggregated data collection regarding the scale of the
phenomenon, in turn impeding policymaking and holding governments
accountable. Measuring homelessness encounters serious challenges, both
8 As the definition of homelessness and housing exclusion, which was developed
by the European Observatory on Homelessness to provide a more consistent and
comprehensive typology of homelessness across Europe. The definition,
considering not only the physical absence of a home or shelter, but also the quality and
security of housing, defines homelessness as a process that encompasses four main
categories: rooflessness, houselessness, insecure housing and inadequate housing. The
typology of homelessness and housing exclusion has been widely adopted across
Europe as a tool for gathering and analyzing statistics on homelessness. However, it is not
universally applied. See further K. Amore et al., ‘The definition and classification
of homelessness: an analysis’ (2011) 5(2) European Journal of Homelessness 19; B. Edgar,
‘The definition and classification of homelessness and housing exclusion’ (2012)
6(2) European Journal of Homelessness, 219.
9 /.5/2020/3 (n 7) para. 4. See also this way //31/54 (n 7) paras. 15–18, where the
Special Rapporteur proposes a three-dimensional approach to defining homelessness
anchored in human rights.
10 //31/54 (n 7) para. 3.
11 J. Hohmann, The Right to Housing Law, Concepts, Possibilities (Hart Publishing, 2013), 143.
12 //31/54 (n 7) para. 19.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
within States and globally, including its less visible forms and its more
qualitative dimensions. Indeed, as conrmed by the UN Special Rapporteur
on adequate housing, it is much more challenging to identify and measure
homelessness among women, children and young people living temporarily
with family or friends or among those most marginalised and precariously
housed within informal settlements, who may be altogether left out of data
collection. In addition, very often, undocumented migrants or members of
ethnic minorities may not wish to be identied by authorities. Furthermore,
national authorities tend to be reluctant to collect and provide – and therefore
publicise – comparable statistical data on the number of people experiencing
homelessness, perceiving it to be contrary to their interests, particularly if they
seek to attract development or tourism or to host important events.
That being said, the absence of an overall gure determining the real extent
of homelessness worldwide would by no means suggest that the phenomenon
does not exist. It only indicates that it is not visible to its full extent.
Homelessness is without a doubt a global phenomenon, constantly increasing
at an alarming rate and afecting people with diverse economic, social and
cultural backgrounds, both in developing countries as well as in some of
the most economically developed societies. Figures and estimates reveal
13 See among others Cała–Wacinkiewicz supra note 6, 69; Ploszka supra note 6, 603;
European Commission, , Fighting homelessness and housing exclusion in Europe: A
study of national policies (I. Baptista, E. Marlier, 2019), 12–13, 18; J. Chamie, ‘As cities grow,
so do the numbers of homeless’ (2017) Yale Global Online (article updated in 2020, to
include data).
14 //31/54 (n 7) paras. 65–73.
15 //31/54 (n 7) para. 70. See also in this respect S. Dentzer, ‘Not counting homelessness
in all its forms is not acceptable’ (2022) 112(6) American Journal of Public Health 832–
833. For women see N. Pleace, ‘Exclusion by Definition: The Under-representation of
Women in European Homelessness Statistics’ in P. Mayock, J. Bretherton (eds), Women’s
Homelessness in Europe (Palgrave Macmillan, London, 2016) 105–125.
16 //31/54 (n 7), para. 70. See also H. Kaur, A. Saad, O. Magwood, Q. Alkhateeb, C.
Mathew, G. Khalaf, K. Pottie, ‘Understanding the health and housing experiences of
refugees and other migrant populations experiencing homelessness or vulnerable
housing: a systematic review using -CERQual’ (2021) 9(2) Canadian Medical
Association Journal Open, E681-E692.
17 //31/54 (n 7) para. 68.
18 /.5/2020/3 (n 7) para. 9; European Federation of National Organizations Working
with the Homeless and Foundation Abbé Pierre, Fourth Overview of Housing Exclusion in
Europe 2019, 15; European Commission, (n 13), 13, 45–51; M. Henry et al., The 2017
Annual Homeless Assessment Report () to Congress: Part 1 – Point-in-Time Estimates
of Homelessness (United States Department of Housing and Urban Development, 2017);
Chamie (n 13); , Integrating Social Services for Vulnerable Groups: Bridging Sectors for
Better Service Delivery (Paris, Publishing, 2015), 112.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
that at least 150 million people globally are considered homeless or without
adequate housing, which represents about 2% of the world’s population.
In addition, more than 20% of the world’s population, or approximately 1.6
billion people, may lack adequate housing, with millions of homeless or
inadequately housed persons located also in Europe and North America.
2.2 Acknowledging Homelessness as a Human Rights Violation
Typically, discourse about homelessness is predominantly linked to discourse
about inadequate housing. However, homelessness does not only amount
to the ‘failure of States’ to guarantee access to safe, afordable and adequate
housing for all. Homelessness is also a violation of a broad range of human
rights, such as the right to life, the right to an adequate standard of living,
the right to health, the right to education, the right to work or private and
family life, including the prohibition of discrimination. In short, ‘it ruins the
possibility of exercising human rights as such’ and ‘in extenso negates the
essence of human rights’. And this is essentially because the right to housing
itself is closely linked to the fullment of all those basic human rights. As the
Special Rapporteur has repeatedly stressed, taking a step further to what the
had stated in General Comment, ‘[h]omelessness is […] a prima facie
violation of the right to housing and violates a number of other human rights
19 Chamie (n 13).
20 Considering the challenges encountered in defining and assessing homelessness, it would
be safe to mention that actual numbers could be higher than this.
21 Chamie (n 13).
22 In the EU, at least 700,000 people experiencing homelessness are sleeping rough or in
emergency/temporary accommodations. See C. Serme-Morin, The State of Emergency
Shelters in Europe (Homeless in Europe. The Magazine of – The European
Federation of National Organisations Working with the Homeless , Spring 2019), 2.
Furthermore, there has been ‘a rapid increase of homelessness in most EU Member States’,
as pointed out in European Parliament Resolution of 16 November 2017 on combating
inequalities as a lever to boost job creation and growth, 2016/2269(), para. 60. In this
respect, Kena and Jordan stress that homelessness had increased dramatically across
the EU during the economic and financial crisis, especially in some EU Member States
such as Greece, the Baltic States, Ireland and Spain. P. Kenna, M. Jordan, ‘Housing Rights
in Europe: The Council of Europe Leads the Way’, In: P. Kenna, Contemporary Housing
Issues in a Globalized World (Routledge, 2014), 116. See also European Commission, EU
Employment and Social Situation, Quarterly Review (Brussels, June 2012), 43 et seq.
23 //31/54 (n 7) para. 11.
24 //31/54 (n 7) paras. 2, 28 and 85.
25 Cała–Wacinkiewicz (n 6) 75.
26 In General Comment No 4, the emphasises that ‘[t]he human right to adequate
housing […] is of central importance for the enjoyment of all economic, social and
cultural rights’. See E/1992/23 (n 7) para. 1.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
[…], including non-discrimination’. In pursuit of unraveling the interplay
between homelessness and discrimination, this article explores the correlation
between the principle of indivisibility of human rights and homelessness, to
then focus on the right to non-discrimination by explaining how homelessness
and discrimination mutually exacerbate and magnify one another. It will not
refer to the ways in which homelessness intersects with other human rights
violations.
2.2.1 Homelessness as a Violation of the Principle of Indivisibility of
Human Rights
This acknowledgement directs the thinking about homelessness towards the
concept of interdependence, indivisibility and interrelatedness of all human
rights, which has become a leading – and largely uncontested – axiom in
human rights discourse, recognising that the promotion and protection of one
right are closely linked to the promotion and protection of other rights, while,
conversely, the violation of one right can lead to the violation of other rights.
This principle is reected in international human rights standards, including
the Universal Declaration of Human Rights () or the International
Covenant on Civil and Political Rights () and has been conrmed
by a number of human rights instruments, such as the 1993 Vienna World
Conference on Human Rights, which states with great emphasis that ‘[a]ll
human rights are universal, indivisible, interdependent and interrelated’.
Interrelatedness of human rights emphasises the need for a comprehensive
27 Guidelines for the Implementation of the Right to Adequate Housing: Report of the Special
Rapporteur on adequate housing as a component of the right to an adequate standard of
living, and on the right to nondiscrimination in this context, //43/43 (26 December
2019) para. 30; //31/54 (n 7) para. 4.
28 For more information about the interdependence and indivisibility of human rights see
T. van Boven, ‘Categories of rights’, in D. Moeckli, S. Shah, S. Sivakumaran, and D. Harris
(eds), International Human Rights Law (Oxford University Press, 2018) 140–142; A. Eide,
‘Interdependence and indivisibility of Human Rights’, in Y. Donders, V. Volodin (eds),
Human Rights in Education, Science and Culture ( Publishing/Ashgate, 2007) 11–51.
29 Vienna Declaration and Programme of Action, /.157/23 (25 June 1993) para. 5. The
outcome document of the 2005 World Summit reaffirmed this statement, see , 2005
World Summit Outcome, //60/1 (24 October 2005) para. 13. The General Assembly
resolution of 2006 establishing the Human Rights Council again reiterated that ‘all human
rights are universal, indivisible, interrelated, interdependent and mutually reinforcing
and that all human rights must be treated in a fair and equal manner on the same footing
and with the same emphasis’, see , //60/251 (3 April 2006), preamble para. 3.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
approach to addressing human rights protection, rather than focusing on
individual rights in isolation.
This exact concept can also be identied in the very similar context of
extreme poverty. Indeed, the right of all persons living in extreme poverty to
the enjoyment of all human rights is a fundamental principle of the Guiding
Principles on Extreme Poverty and Human Rights. The Guiding Principles
emphasise that all human rights are indivisible, interdependent and universal,
meaning that the realisation of one right is dependent on the realisation of
other rights and that these rights apply to all individuals regardless of their
status or circumstances. Homelessness is mutatis mutandis a clear illustration
of how human rights are indivisible, interrelated and interdependent. This is
due to the fact that individuals who experience homelessness are subject to
ongoing violations of their civil, cultural, economic, political and social rights,
which are interconnected and reinforce each other, leading to devastating
consequences.
From this perspective, homelessness, as a phenomenon, state and process,
can be seen as a violation of the principle of indivisibility of human rights.
In other terms, ‘inability to ensure the full spectrum of human rights to
homeless persons is contrary to the indivisible nature of these rights’. Thus,
acknowledging homelessness as a human rights violation is of signicant
normative value and legal importance, among others, because this will not only
enable marginalised and disadvantaged people to assert their rights against
the State, but it will also open the door to exploring how this pervasive issue
intersects with the principles of non-discrimination and equality.
30 van Boven (n 28) 140–142, 190. For example, the protection and promotion of economic,
social, and cultural rights, such as the right to health or the right housing, are closely
linked to the protection and promotion of core rights, such as the right to life, prohibition
of torture or prohibition of discrimination.
31 Final draft of the guiding principles on extreme poverty and human rights, submitted by the
Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda Carmona,
//21/39 (18 July 2012) para. 16.
32 Cała–Wacinkiewicz (n 6) 75.
33 Ibidem.
34 P. Lynch, J. Cole, ‘Homelessness and human rights: regarding and responding to
homelessness as a human rights violation’ (2003) 4 Melbourne Journal of International
Law, 139–140. See also in this sense P. Lynch, ‘The utility of human rights to homeless
people and their advocates’ (2004) 17(1) Parity, 10–12; Ploszka (n 6), 607; M. Jackman, B.
Porter, ‘A Human Rights Context for Addressing Poverty and Homelessness’ (2012) 3(2)
Exchange Working Paper Series, <https://socialrightscura.ca/documents/publications
/HR-context-poverty-homelessness.pdf> accessed 31 August 2023; C.M. Semi, ‘Guilty of
Homelessness: Evaluating the Criminalization of Homelessness Through a Human Rights
Framework’ (2014) Departmental Honors Projects 20.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
2.2.2 Homelessness as a Violation of the Principle of Equality and
Non-Discrimination
Discrimination and homelessness are closely intertwined in various manners.
Discrimination plays a dual role, serving as a cause and a consequence of
homelessness. Discriminatory practices, both overt and covert, frequently
lead to homelessness, while people experiencing homelessness are also subject
to discriminatory attitudes and stigmatisation from public authorities and
private actors precisely because of their housing status. Indeed, in the context
of homelessness, discrimination can create signicant barriers to accessing
basic needs such as housing, employment and healthcare, leading to economic
instability and further perpetuating homelessness. Moreover, homelessness
itself can also increase the likelihood of discrimination, as individuals who
are homeless often face negative stereotypes and stigmatisation, either based
on their physical appearance, image and any other ground related to their
housing status or based on their representation as persons without rights
who are dangerous, violent and display other negative characteristics. It is
indeed a vicious circle. This anti-homeless stigma, which ignores the structural
inequalities and systemic barriers contributing to homelessness, can be
reinforced through various channels, including structural stigmatisation,
35 Paraphrasing para. 18 of the Guiding principles on extreme poverty and human rights. See
in this sense //21/39 (n 31) para. 18.
36 , General Comment No. 20 Non-discrimination in economic, social and cultural
rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural
Rights), /.12//20 (2 July 2009) para. 35.
37 G. Scambler, A Sociology of Shame and Blame. Insiders Versus Outsiders (Palgrave
Macmillan, 2020) 8, 9 and 87 et seq.; J. R. Belcher, B.R. DeForge, ‘Social Stigma and
Homelessness: The Limits of Social Change’ (2012) 22 (8) Journal of Human Behavior in the
Social Environment 929–946.
38 Structural stigmatisation refers to the ways in which societal institutions, including
the legal system, create and reinforce negative attitudes towards certain groups of
people. In the case of homelessness, structural stigmatisation is evident in legislation,
which criminalises activities associated with being homeless, such as sleeping, eating
and panhandling in public areas. For example, laws and policies which criminalise
homelessness, such as anti-vagrancy laws or laws which prohibit sleeping in public
spaces, can reinforce negative stereotypes and further marginalise people experiencing
homelessness. See for instance S.L. Canham, P. Moore, K. Custodio, H. Bosma, ‘Homeism:
Naming the Stigmatization and Discrimination of Persons Experiencing Homelessness’
(2022) 39(5) Housing, Theory and Society, 507; D. De Las Nueces, ‘Stigma and Prejudice
against Individuals Experiencing Homelessness’, In: R. Parekh, Ed W. Childs (eds), Stigma
and prejudice: touchstones in understanding diversity in healthcare (Springer International
Publishing Switzerland: Humana Press, 2016), 91–92; //31/54 (n 7) paras. 19–21.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
business practices or even more insidious ones, such as media portrayals,
as the prevalent societal narrative often portrays people experiencing
homelessness as morally inferior, ‘second class citizens’ and responsible for
their own situation.
In order to describe discrimination or prejudice towards individuals who
are homeless, a new term was introduced in literature: ‘homeism’. The term is
like other forms of discrimination, such as racism or sexism, in that it involves
negative attitudes and behaviours towards a particular group of individuals
based on a characteristic they possess. The protected characteristic, in this
case, consists in their housing status. In short, homeism is dened as ‘the
discrimination (behaviour) towards an individual who is homeless’ and ‘is
the result of negative stereotypes (stigmas) towards individuals who are
experiencing homelessness’. Like other forms of discrimination, it can have
severe consequences for those who experience it, including the exacerbation
of mental and physical health issues, barriers to accessing basic needs such as
housing and healthcare and economic instability.
Apart from merely fueling homelessness, discrimination can also be a
contributing factor to it and can occur in many forms, including on the grounds
of racial or ethnic origin, gender and gender identity, sexual orientation,
religion, nationality and residence, language, family status, migrant status
and other grounds. Individuals who experience discrimination may face
barriers to accessing education, employment and housing, which can lead
to economic instability and homelessness. For example, + persons or
migrants may face discrimination in housing, which can seriously afect their
ability to access safe and afordable housing and nancial stability and even
lead to homelessness. This is due not only to the fact that property owners
and housing providers may discriminate against them based on their sexual
39 Similarly, business practices, which exclude people experiencing homelessness, such
as refusing to hire or provide services to them, can perpetuate the circle of poverty and
homelessness.
40 Media stories can also play a role in reinforcing negative stereotypes and blaming people
experiencing homelessness for their own situation. Individuals who are homeless may be
portrayed as lazy, drug-addicted, mentally ill and basically undeserving of assistance and
respect. See in this respect Scambler (n 37), 35, 80, 92 et seq.
41 De Las Nueces (n 38) 86.
42 Canham et al. (n 38) 509.
43 Idem, 508.
44 In this respect see J.C. Benito Sánchez, Securing Housing for All in Diverse European
Societies Applying International and European Antidiscrimination Law to the Housing
Context (Thesis submitted with a view to obtaining the degree of Docteur en sciences
juridiques, Faculty of Law and Criminology Louvain December 2020), 67 et seq.,
68–70.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
orientation, gender identity or immigration status, but also to the diculties
they encounter in accessing nancial resources, such as loans or mortgages,
because of the above-mentioned grounds.
Finally, it is worth mentioning that, in some cases, it is rather dicult to
draw a clear line of distinction between discrimination on the ground of
homelessness and discrimination on the ground of socio-economic status.
Direct discrimination against people who are poor compounds the systemic
inequalities they already face, leading to precarious housing conditions,
including informal settlements or occupation of land. These settlements are
often located in unsafe and unsanitary conditions and lack basic infrastructure
and services, which can put residents at risk of eviction, displacement, further
discrimination and, ultimately, homelessness. The European Union Agency
for Fundamental Rights () reports, for instance, that, in the aftermath of the
outbreak of the -19 pandemic in 2020, in some countries, access to and
from Roma neighbourhoods was restricted as a measure to prevent the spread
of infection. This kind of targeted lockdown, based on the ethnic composition
of the population, is not an efective or ethical response to a public health crisis.
On the contrary, it perpetuates harmful stereotypes and discrimination against
marginalised communities. In addition, an exclusionary zoning, which in
many cases is implemented by municipalities to prevent the construction of
social or afordable housing in central locations, can perpetuate economic
and social inequality by preventing low-income individuals from accessing job
opportunities, social services and transportation infrastructure, which could
help them improve their situation. It can also lead to the concentration of
poverty and homelessness in certain areas, exacerbating the challenges faced
by people experiencing homelessness and making it more dicult for them
to reintegrate into society. This is referred to, in relevant literature, as ‘socio-
spatial stigmatisation’.
45 See very specific examples in Benito Sánchez (n 44), 69. In literature it is reported that
adolescents who are newly homeless, who identify themselves as + persons,
experience discrimination in the form of harassment from peers, family, or police.
See in this sense N.G. Milburn, G. Ayala, E. Rice, P. Batterham, M.J. Rotheram-Borus,
‘Discrimination and exiting homelessness among homeless adolescents’ (2006) 12(4)
Cultural Diversity and Ethnic Minority Psychology 658.
46 //31/54 (n 7) para. 25.
47 , Coronavirus Pandemic in the EU – Fundamental Rights Implications (Bulletin no. 1,
2020), 32.
48 See in this sense Benito Sánchez (n 44), 71.
49 //31/54 (n 7), para. 26.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
3 Breaking the Vicious Circle Between Discrimination and
Homelessness: the Human Rights Based Approach
While acknowledging that approaching homelessness from a human rights
perspective is not a panacea, this section demonstrates that it is essential to
insist on the human rights discourse when referring to homelessness. The human
rights framework provides a set of clear standards and principles for protecting
and promoting human rights for all individuals, including individuals who are
homeless. Bearing in mind the strong interconnection between discrimination
and homelessness, as discrimination often acts as a structural precursor to
homelessness and, in turn, the experience of homelessness can lead to being
discriminated against, this section examines, in particular, whether and how
anti-discrimination legislation in Europe currently addresses discrimination
based on homelessness, either explicitly or implicitly, with a view to exploring
and suggesting how anti-discrimination legislation can play an important
role, in the future, in addressing discrimination against people experiencing
homelessness. In this context, the need to stress the link between aspiration
and reality through human rights standards is even greater. Indeed, as human
rights are legally binding obligations and not just aspirational ideals, it is
crucial to constantly try to remedy the discrepancy between law and practice.
3.1 Challenging Homelessness in a Human Rights Anti-Discrimination
Framework
Anti-discrimination legislation prohibits discrimination based on specic
characteristics, which are often referred to as ‘protected grounds’ and aim to
address discrimination against specic groups that experience diferential
treatment. According to Khaitan, in his Theory of discrimination law, the
architecture of discrimination law is built on three elements: protectorate,
duty bearers and duties. The protectorate is a group of individuals who are
classied as such by specic characteristics called grounds. The protected
ground, in order to be called so, must possess two requirements: ‘(i) [i]t must
be a ground that classies persons into groups with a signicant advantage
gap between them; and (ii) [i]t must either be immutable or […] constitute a
fundamental choice’. Notwithstanding the failure to give a straightforward
answer to the question regarding which grounds should be prohibited by anti-
discrimination laws – an answer which is heavily inuenced by the political
50 Lynch & Cole (n 34), 166.
51 T. Khaitan, A theory of discrimination law (Oxford University Press, 2015), 45 et seq.
52 Idem, 50.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
and social context in which anti-discrimination law is being developed
– there has been broad consensus that certain characteristics, such as race,
colour, sex, national or social origin, religion and age, are not acceptable
criteria for diferential treatment. Over the years, there has also been growing
recognition that discrimination on the basis of other characteristics, such as
sexual orientation, gender identity, disability and socio-economic status,
should be prohibited by anti-discrimination laws. This being said, what is
perceived as unacceptable discrimination may evolve over time, as societal
norms and values shift and human rights standards reect these changes in
a very dynamic manner so as to address emerging forms of discrimination.
These lists of protected grounds might be exhaustive, referring to a limited
number of characteristics explicitly listed as protected grounds against
discrimination or open-ended, providing broader protection against
discrimination. The open-ended lists may either prohibit discrimination ‘on
any ground’ or begin with a non-exhaustive list of protected grounds, followed
by a catch-all phrase such as ‘or any other ground’ or ‘or other status’. There
is also a third model, according to which a broad open-textured equality
guarantee is framed, stating simply that all persons are equal before the law,
without specifying any particular grounds. Hence, this section attempts
a tour d’horizon of the protected grounds in anti-discrimination legislation,
related to homelessness, in Europe, starting from the international human
53 S. Fredman, Discrimination Law (Oxford University Press, 2022) 169.
54 D. Moeckli, ‘Equality and non-discrimination’, in Moeckli (n 28) 154.
55 Ibidem.
56 The comparison between the International Covenant on Civil and Political Rights
() and the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families () is a good example of how human rights
treaties reflect changes in what is considered unacceptable discrimination. The
was adopted in 1966 and prohibits discrimination based on certain characteristics, such
as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth, or other status. The was adopted two and a half decades later, in
1990, and expanded the list of prohibited grounds to include criteria such as conviction,
age, economic position and marital status, in addition to race, colour and national or
ethnic origin. See in this sense Moeckli (n 54), 154. Regarding the ‘Evolution of equality
law’ see A. McColgan, Discrimination, Equality and the Law (Hart Publishing, 2014) 101–134.
57 Art. 1 , for instance, prohibits only ‘distinction, exclusion or restriction made on
the basis of sex’.
58 Art. 7 prohibits ‘distinction of any kind such as to sex, race, colour, language,
religion or conviction, political or other opinion, national, ethnic or social origin,
nationality, age, economic position, property, marital status, birth or other status’, which
allows for more flexibility, since even distinctions made on grounds that are not explicitly
listed may engage these provisions. See in this sense Moeckli (n 54) 155.
59 For a presentation of all three models see Fredman (n 53) 171–205.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
rights standards, then proceeding to the regional level and completing this
section with the EU level.
3.1.1 International Anti-Discrimination Legislation
International human rights instruments, both general and specialised, such as,
for instance, the Universal Declaration of Human Rights () and the
International Covenant on Civil and Political Rights () guarantee the
right to equality and non-discrimination. The fact that none of the above-stated
provisions explicitly mentions homelessness might as well have been of minor
importance, as they are open-ended, and homelessness can, in principle, be
tted within one of the specic grounds or within the rubric of ‘other status’.
However, it is worth bringing attention to the fact that the Human Rights
Committee contains itself to applying only the listed grounds, often giving the
impression that it regards the list of Article 26 as exhaustive. Indeed,
not only has it never claried how it decides whether a diference in treatment
comes within the reference to ‘other status’, but furthermore it has clearly
stated that an applicant is required to show that the diference in treatment
was based on one of the enumerated grounds.
This article does not refer to the entire set of human rights instruments
regarding equality and non-discrimination, among others due to the absence
of explicit mention of homelessness within their lists of protected grounds. It is
worth referring though separately to the International Covenant on Economic,
Social and Cultural Rights () to point out that, despite being one of
the most relevant to homelessness human rights treaty, it does not contain
a concrete protected ground addressing homelessness. While Article 2(2) of
60 Art. 2 .
61 Art. 26 .
62 Franz and Maria Deisl v. Austria, //81/ /1060/2002 (23 August 2004), para. 10.5. See
also Moeckli (n 54) 155.
63 The International Convention on the Elimination of All forms of discrimination: the
International Convention on the Elimination of All Forms of Racial Discrimination
(), the Convention on the Elimination of All Forms of Discrimination Against
Women () and the Convention on the Rights of Persons with Disabilities ()
are specifically devoted to addressing specific forms of discrimination. The Convention
on the Rights of the Child () [Art. 2 and 28] and the International Convention on
the Protection of the Rights of All Migrants Workers and Members of their Families
() [Art. 1(1), 7, 18, 25, 27, 28, 30, 43, 45, 54, 55 and 70] contain explicit provisions
on equality and non-discrimination. On the contrary, the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment () and the
International Convention for the Protection of All Persons from Enforced Disappearance
() are the only international human rights treaties which do not contain explicit
non-discrimination clauses. See also Moeckli (n 54) 11–152.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
the prohibits discrimination based on various grounds, including
‘other status’, it is the term ‘other status’ that holds signicance. Indeed, the
Committee on Economic, Social and Cultural Rights (), in General
Comment No. 20, adopting an expansive approach, interprets the term ‘other
status’ exibly to capture ‘other forms of diferential treatment that cannot
be reasonably and objectively justied and are of a comparable nature to the
expressly recognised grounds’. This means that even if a particular ground
of discrimination is not expressly recognised in the , it may still be
covered under the term ‘other status’, if it involves a similar type of diferential
treatment which cannot be justied.
3.1.2 Regional Anti-Discrimination Legislation
At the regional level, anti-discrimination legislation encompasses a similar
list of protected grounds. Nonetheless, once again, what is interesting to
explore is how the term ‘other status’ is interpreted, by the European Court
of Human Rights (ECtHR) and the European Committee of Social Rights
(). Considering that the constituent elements of the term ‘discrimination’
are identical under both provisions of Art. 14 of the European Convention
on Human Rights () and Art. 1 of Protocol No. 12 to the Convention,
including the reference to ‘any ground’ and the use of the term ‘other status’,
one can reasonably assume that there is room for a conceptual expansion of
what constitutes discrimination. Indeed, the ECtHR has explicitly described
the other grounds in Art. 14 as ‘illustrative and not exhaustive’. The ECtHR
interprets the term ‘other status’ broadly in its case law, acknowledging that
it is not limited to personal characteristics that are innate or inherent and
ensures, thus, that individuals are protected from discriminatory treatment
regardless of the specic characteristic or status involved. It has used this
64 /.12//20 (n 36) para. 27.
65 Though it must be pointed out here that Protocol No. 12 extends this protection to the
enjoyment of any right set forth by law, regardless of whether it is included in the ,
which means that the scope of Art. 1 of Protocol No. 12 is broader than that of Art. 14
, as it applies to all areas of law, not just those protected explicitly by the .
See in this sense C.M. Buckley, K. Kamber, P. McCormick, The European Convention on
Human Rights. Principles and law (Council of Europe, 2022), 285; Fredman (n 53), 237–
240; S. Fredman, ‘Emerging from the shadows: substantive equality and Article 14 of the
European Convention on Human Rights’ (2016) 16 Human Rights Law Review 273.
66 ECtHR, Salgueiro da Silva Mouta v Portugal, App 33290/96 (21 December 1999), para 28;
Clift v United Kingdom, App 7205/07 (13 July 2010) para. 55.
67 ECtHR, Carson v the United Kingdom (2020) para. 70. See also in this sense W. A. Schabas,
The European Convention on Human Rights. A commentary (Oxford University Press, 2017)
582–584; Buckley, Kamber & McCormick (n 65) 283; Fredman (n 53) 196.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
non-exhaustive list to update the protected grounds in response to changing
circumstances. In particular, the ECtHR has found that the term can include
various grounds for discrimination, such as age, disability and other health
impairments, sexual orientation and gender identity, parental status,
marital status, immigration status, employment status and place of
residence. This approach, reecting the ‘living instrument’ doctrine, which
emphasises that the must be interpreted and applied in a dynamic and
evolving way to ensure its continued relevance and efectiveness in protecting
human rights, allows the ECtHR to adapt to social and legal developments
and ensure that the protection against discrimination remains relevant and
efective.
However, while the ECtHR has shown a willingness to adapt its
interpretation of the to evolving social and legal contexts, it has not yet
explicitly addressed homelessness in its case law. Although the ECtHR has
acknowledged that the provision may encompass other dimensions, which are
not explicitly mentioned in the but operate similarly, it remains to see
whether discrimination based on homelessness will be specically addressed
in the future.
Although the European Social Charter () and the Revised European
Social Charter () do not explicitly mention homelessness, both charters
provide a protective framework for social and economic rights and emphasise
the principle of non-discrimination. Indeed, the ’s preamble arms the
principle of non-discrimination as a core value of the Charter. Similarly,
the , which updated the in 1996, includes Article E that specically
addresses non-discrimination, ensuring the enjoyment of charter rights
without distinction based on various grounds. It is noteworthy that the
68 ECtHR, British Gurkha Welfare Society and Others v the United Kingdom (2016).
69 ECtHR, Guberina v Croatia (2016).
70 ECtHR, Hämäläinen v Finland (2014) [].
71 ECtHR, Weller v Hungary (2009).
72 ECtHR, Petrov v Bulgaria (2008).
73 ECtHR, Bah v the United Kingdom (2011).
74 ECtHR, Topčić-Rosenberg v Croatia (2013).
75 ECtHR, Carson and Others v the United Kingdom (2010) [].
76 ECtHR, Tyrer v the United Kingdom (1978), para. 31; Kress v France (2001) [], para. 70;
Christine Goodwin v the United Kingdom (2002) [], para. 75; v. France (2008), para. 92;
Sergey Zolotukhin v. Russia (2009) [], para. 80; Bayatyan v. Armenia (2011) [], para.
102. For the ‘dynamic and evolutive interpretation’ of the see Schabas (n 67) 47–49.
77 Sánchez (n 44) 127–132.
78 Stating that ‘the enjoyment of social rights should be secured without discrimination on
grounds of race, colour, sex, religion, political opinion, national extraction or social origin’,
Preamble to the 1961 .
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
also incorporates provisions relevant to addressing homelessness, potentially
ofering a framework to protect the rights of individuals experiencing
homelessness or at risk of homelessness, including the right to protection
against poverty and social exclusion, as well as the right to housing.
The approach of the European Committee of Social Rights () regarding
the interpretation of Article E in the is of interest. While acknowledging
that the inclusion of Art. E in the reects the heightened importance that
the drafters placed on the principle of non-discrimination in the enjoyment
of social and economic rights, the has clearly stated that ‘Article E
is of a diferent nature. Its role is comparable to Article 14 of the European
Convention on Human Rights. It has no independent existence and has to be
combined with a substantive provision of the Charter’. Its function is ‘to help
secure the equal efective enjoyment of all the rights concerned regardless of
diference’ and, therefore, ‘it does not constitute an autonomous right which
could in itself provide independent grounds for a complaint’. Rather, it must
be invoked and examined in conjunction with one of the substantive rights
enshrined in the Charter, such as the right to housing.
Despite the lack of autonomy in Article E of the , as well as its narrow
scope excluding certain grounds such as disability, sexual orientation, age and
homelessness, the has utilised the non-exhaustive nature of Article E to
extend the reach of the . The Committee has demonstrated a willingness
to interpret and apply the Charter in a way that protects a broader range of
human rights. Moreover, as the has highlighted, ‘the Charter is a living
instrument, whose purpose is to protect rights not merely theoretically but
also in fact […]. It therefore interprets the rights and freedoms set out in the
Charter in the light of current conditions’ and ‘in light of new emerging
issues and situations’. For instance, although disability is not explicitly
listed as a prohibited ground of discrimination under Art. E of the , the
considers that it is covered by the reference to ‘other status’, which
means that discrimination based on disability is prohibited under the .
79 , Art. 30.
80 , Art. 31.
81 , International Association Autism-Europe v France (4 November 2003) para. 51.
82 , Syndicat des Agrégés de l’Enseignement Supérieur () v France (15 June 2005)
para. 34.
83 , International Association Autism-Europe v France (4 November 2003) para. 51.
84 , International Commission of Jurists v Portugal (9 September 1999), para. 32;
Marangopoulos Foundation for Human Rights v. Greece (6 December 2006) para. 194.
85 , Transgender-Europe and -Europe v the Czech Republic (15 May 2018) para. 75.
86 , International Association Autism-Europe v France (4 November 2003) para. 51.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
In addition, the , aiming at addressing multiple and intersectional
forms of discrimination, has adopted a similar approach with respect to
grounds of discrimination closely linked together, constituting ‘overlapping’,
‘intersectional’ or ‘multiple’ discrimination, such as situations where the
combined efect of gender, health status, socio-economic status and the
territorial location of women prevent them from having efective access to
abortion services.
Recognising the intersectional and multidimensional nature of
discrimination, the emphasises the importance of considering various
barriers to the enjoyment of human rights. In this regard, the Committee
acknowledges the potential for discrimination based on poverty and social
exclusion. In particular, the recognises that discrimination can occur on
the basis of socio-economic status, as individuals who are living in poverty or
facing social exclusion may face barriers in accessing essential resources and
services, leading to marginalisation and limited participation in society. The
87 ‘Intersectionality’ refers to the idea that people’s disadvantage is composed of multiple
and interlocking systems of power. The term was coined by Kimberlé Crenshaw, in 1989,
to describe the complex and overlapping ways in which different forms of oppression,
discrimination and privilege intersect and interact with one another. She specifically
used the term to highlight the experiences of Black women who faced discrimination
and exclusion from both discrimination law and feminist theory, as well as from the civil
rights movement in the United States. Crenshaw argued that the experiences of Black
women were often marginalised and overlooked in discussions of gender discrimination
and racial discrimination separately and that an intersectional approach was needed to
fully understand and address their unique experiences of oppression at the intersection
of race and gender. See K. Crenshaw, ‘Demarginalizing the Intersection of Race and Sex:
A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist
Politics’ (1989) 1(8) University of Chicago Legal Forum 139–167. Since then, the concept
of intersectionality has been widely used as a framework to understand and address
various forms of social inequality and discrimination. See inter alia Fredman (n 53) 218–
232; S. Atrey, ‘The intersectional case of poverty in discrimination law’ (2018) 18 Human
Rights Law Review 415–418; A. Giannini, ‘An Intersectional Approach to Homelessness:
Discrimination and Criminalization’ (2018) 19(1) Marquette Benefits and Social Welfare Law
Review 29–31. It is also very interesting to see how the UN Committee on the Elimination
of Discrimination against Women () defines intersectionality. In this respect see
, General recommendation No. 28 on the core obligations of States parties under
article 2 of the Convention on the Elimination of All Forms of Discrimination against
Women, ///28 (16 December 2010) para. 18.
88 See in that sense , International Planned Parenthood Federation – European Network
( ) v Italy (10 September 2013) para. 190–194.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
further acknowledges the possibility of discrimination based on poverty
and social exclusion as a distinct ground of discrimination.
While the recognises the signicance of the non-discrimination
clause in Article E of the , encompassing discrimination on various
grounds including poverty, it has not specically addressed homelessness as a
distinct form of discrimination. Given that homelessness is a form of extreme
poverty and social exclusion, and denial of housing and essential services
based on someone’s homeless status can be seen as discrimination based on
socio-economic status, it remains to see how this ground is to be interpreted
in particular contexts.
3.1.3 EU Anti-Discrimination Legislation
Under the EU treaty anti-discrimination law, the protected grounds of
discrimination consist of the six grounds listed in Article 19 of the Treaty on
the Functioning of the European Union (), namely sex, racial or ethnic
origin, religion or belief, disability, age and sexual orientation. Discrimination
based on these grounds is prohibited in various areas, including employment,
education and access to goods and services. Thus, homelessness is not currently
listed as a protected ground of discrimination under the , nor are there
open-ended clauses allowing for a conceptual expansion of protected grounds.
The EU Charter of Fundamental Rights (), although legally binding,
does not grant new powers to the EU or change the division of competencies
between the EU and its Member States. It applies to EU institutions and
89 , Mental Disability Advocacy Center () v Belgium (16 October 2017); International
Planned Parenthood Federation – European Network ( ) v Italy (10 September 2013);
Confederazione Generale Italiana del Lavoro () v Italy (12 October 2015). In this respect
see also the interesting analysis in Sánchez (n 44) 132–138.
90 According to Art. 10 , ‘[i]n defining and implementing its policies and activities, the
Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual orientation’, while Art. 19 allows for appropriate
action to combat discrimination by the EU Institutions ‘based on sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation’.
91 See Art. 21 , according to which ‘1. [a]ny discrimination based on any ground
such as sex, race, colour, ethnic or social origin, genetic features, language, religion or
belief, political or any other opinion, membership of a national minority, property, birth,
disability, age or sexual orientation shall be prohibited. 2. Within the scope of application
of the Treaties and without prejudice to any of their specific provisions, any discrimination
on grounds of nationality shall be prohibited’.
92 As according to Art. 51(2) , ‘[t]he Charter does not extend the field of application
of Union law beyond the powers of the Union or establish any new power or task for the
Union, or modify powers and tasks as defined in the Treaties’.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
bodies and Member States only to the extent that they implement EU law.
It is mainly due to its limited scope, therefore, that it is widely argued that,
notwithstanding the critical role that the has played in developing EU
anti-discrimination case law, its impact has been modest.
Several anti-discrimination law directives have been adopted in this
respect. However, a proposed ‘horizontal directive’ aiming to extend
protection and establish a general prohibition of discrimination on the basis of
religion or belief, disability, age and sexual orientation, is still pending before
the Council. The EU anti-discrimination directives do not explicitly prohibit
discrimination on the grounds of homelessness and not all six prohibited
grounds apply to the same extent in all elds. Access to housing, for example,
is only protected against discrimination based on racial or ethnic origin and
gender under Directives 2000/43/ and 2004/113/, which apply to the
access to and the supply of goods and services. On the other hand, Directive
2000/78/, which contains more protected grounds, such as religion or belief,
disability, age and sexual orientation, only applies in the traditional labour
market arena and not in education or healthcare. This is problematic not
only in that it creates a hierarchy of grounds, but also due to intersectional
claims. The failure to extend protection against discrimination beyond the
labour market has left a patchwork of protections in place, with some areas
better protected than others. Without a comprehensive directive, individuals
93 Pursuant Art. 51(1)(a) , ‘[t]he provisions of this Charter are addressed to the
institutions, bodies, offices and agencies of the Union with due regard for the principle of
subsidiarity and to the Member States only when they are implementing Union law’.
94 See in this sense A. Ward, ‘The Impact of the EU Charter of Fundamental Rights on Anti-
Discrimination Law: More a Whimper than a Bang?’ (2008) 20 Cambridge Yearbook of
European Legal Studies 36; Benito Sánchez (n 44), 16, 125, 127; S. Ganty, J.C. Benito Sánchez,
Expanding the list of Protected Grounds within Anti-Discrimination Law in the EU (Equinet,
2021) 21. See also European Union Agency for Fundamental Rights () and Council of
Europe (CoE), Handbook on European Non-Discrimination Law – 2018 Edition (2008) 34–38.
95 See for instance: Council Directive 2000/78/ of 27 November 2000 establishing a general
framework for equal treatment in employment and occupation (2 December 2000) 303
303, 16–22; Council Directive 2000/43/ of 29 June 2000 implementing the principle
of equal treatment between persons irrespective of racial or ethnic origin (19 July 2000)
180 , 22–26; Council Directive 2004/113/ of 13 December 2004 implementing the
principle of equal treatment between men and women in the access to and supply of
goods and services (21 December 2004) 373 .
96 Proposal for a Council Directive on implementing the principle of equal treatment
between persons irrespective of religion or belief, disability, age or sexual orientation
{(2008) 2180} {(2008) 2181} (2 July 2008), (2008) 426 final-2008/0140 ().
97 & CoE (n 94) 22.
98 See this way Fredman (n 53) 235.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
in certain areas may still face discrimination based on their age, disability or
sexual orientation.
3.2 Enhancing the Anti-Discrimination Legislation
As this article has demonstrated, discrimination based on homelessness
occurs in various forms, such as in accessing housing, employment,
education and healthcare services and, vice versa, homelessness can often
be a result of discrimination and social exclusion. This notwithstanding,
discrimination based on homelessness is not specically addressed in
equality and anti-discrimination legislation. Typical guarantees of equality
and non-discrimination are framed as prohibitions of distinctions or impact
that perpetuate disadvantages based on recognised grounds such as race,
colour, religion, sex, gender, sexual orientation, disability, age and other
similar characteristics. Framed this way, grounds serve as the ‘gatekeepers
of discrimination law’ and do not admit homelessness in the inner circle of
protected characteristics. Thus, the quest to address homelessness through
discrimination law has been primarily about recognising homelessness as
an independent ground of discrimination. This sub-section rst answers the
question of whether homelessness can be dened as a protected ground and,
then, illustrates the added value of expanding the protected grounds’ list.
3.2.1 Dening Homelessness as a Protected Ground
Dening homelessness as a protected ground is a rather complex task, which
requires exploring whether and how homelessness may t into the traditional
categories of protected grounds. For this purpose, this article attempts to
answer the central questions related to this discussion, as they arise from
the literature review. In particular, the article rst examines whether
homelessness can be considered a ‘personal characteristic’. Then, it considers
whether homelessness is (or is required to be) immutable. And lastly, whether
homelessness is denable.
3.2.1.1 Is Homelessness a Personal Characteristic?
With regard to the rst question and bearing in mind that the term ‘personal
characteristic’ implies fundamental traits which are important to one’s
99 Ibidem.
100 See under subsection 2.2.2 above, 222 et seq.
101 Atrey (n 87) 411.
102 T. Skolnik, ‘Homelessness and Unconstitutional Discrimination’ (2019) 15 Journal of
Law and Equality 69; Giannini (n 87) 27; Khaitan (n 69) 51 et seq.; J.A. Clarke, ‘Against
Immutability’ (2015) 125 Yale Law Journal 2–102; McColgan (n 56) 52 et seq.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
identity, personhood or belonging, it is safe to conclude that, while not
an inherent quality like race or gender, homelessness has qualities closely
connected to personal characteristics. As it has been demonstrated already,
without access to housing, individuals are deprived of their right to enjoy a
broad range of human rights, such as the right to life, the right to an adequate
standard of living, the right to health etc. In short, as access to housing is a
core aspect of individual identity, because it protects interests such as privacy,
security, dignity and liberty, its lack negates the essence of human rights.
As Hohmann aptly explains, ‘the denial of the private space amounts to a
denial of the freedoms and rights provided by that space’. In addition,
not acknowledging homelessness as a personal characteristic would suggest
that it might be a personal choice, thus shifting the weight of responsibility
from the State and its duty to protect the person from homelessness onto the
marginalised individuals or groups of individuals, who would then be expected
to improve their situation on their own. Hence, building on the stereotype
that homelessness is a personal choice might actually have the opposite result,
leading to greater marginalisation and reinforcing this anti-homeless stigma.
3.2.1.2 Is Homelessness an Immutable Characteristic?
The second question that must be answered has to do with whether the
discriminatory practice is a ‘result of an immutable characteristic or whether
there are choices available to an individual’. It is the so-called ‘immutability’
concept. Homelessness is quite clear that is not, strictly speaking, immutable,
to the extent that it is changeable and not generally stable, such as other
enumerated grounds. Nonetheless, it is also quite clear that being without a
home may not be immutable, but it is something over which individuals who
are homeless have no control. Along with immutable characteristics, therefore,
there is another category of traits, which includes traits or characteristics, that
are in theory changeable. However, they can only be changed at an unacceptable
personal cost, such as, for instance, drug addiction. This is a nuanced form
of immutability, called ‘constructive immutability’ and it remains entirely
unclear whether homelessness can t within this framework, especially if one
103 See under subsection 2.2.1 above, 220 et seq.
104 M.J. Radin, ‘Property and Personhood’ (1982) 34 Stanford Law Review 991–992.
105 Hohmann (n 11) 152.
106 Skolnik (n 102), 85–86; Clarke (n 102) 10–11.
107 See under subsection 2.2.2 above, 222 et seq.
108 Fredman (n 53) 206–207.
109 As, for instance, race or colour.
110 Skolnik (n 102) 87; Fredman (n 53) 208–209.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
compares it to other situations which t within the ‘constructive immutability’
concept. Indeed, although they are both complex and challenging experiences
leading to stigmatisation and discrimination, one would barely compare
escaping homelessness to escaping addiction. Escaping homelessness could
hardly be seen as an ‘unacceptable personal cost’, but rather as a benet.
Furthermore, Skolnik proposes a third category of quasi-immutable traits
which are central to one’s identity and result in discrimination, but do not t
within any of the aforementioned categories of immutable and constructively
immutable personal characteristics. They may include traits such as poverty,
homelessness, being overweight or possessing a criminal record. The author
calls these characteristics ‘complex personal characteristics’, that is traits
which are ‘relatively stable and can only be changed incrementally and with
great diculty over a prolonged period of time’.
Hence, the question arising here is whether it is imperative to t
homelessness in one of those categories, so as to protect individuals who
are homeless from discrimination. In other words, is immutability the key
to understanding discrimination or should we bypass it? The concept of
immutability suggests that a characteristic must be innate and unchangeable
in order to qualify as a protected characteristic. However, this ignores the fact
that many people may face discrimination based on characteristics that are
not necessarily innate but are still deeply ingrained in their identity or culture.
Refusing to recognise discrimination based on these personal traits fails to
acknowledge that individuals not only sufer discrimination but are also told
that they cannot experience such discrimination.
In this respect, Balkin prefers status to immutability, arguing that ‘[f ]ocusing
on immutability per se confuses biological with sociological considerations. It
confuses the physical existence of the trait with what the trait means in a social
system […] The question is not whether a trait is immutable, but whether there
has been a history of using the trait to create a system of social meanings, or
dene a social hierarchy that helps dominate and oppress people’. On the
111 J. Sealy-Harrington, ‘Should homelessness be an analogous ground? Clarifying the
multi-variable approach to Section 15 of the Charter’ (2013) ABlawg.ca: The University of
Calgary Faculty of Law Blog on Developments in Alberta Law 7.
112 Skolnik (n 102) 87–90.
113 Ibidem; Clarke (n 102) 53–61, 76–84.
114 Skolnik (n 102) 88. See also M.S. Gerber, ‘Equal Protection, Public Choice Theory, and
Learnfare: Wealth Classifications Revisited’ (1993) 81 Georgetown Law Journal 2154, at
2162; D. Gibson, ‘Analogous grounds of discrimination under the Canadian Charter: too
much ado about next to nothing’ (1991) 29 Alberta Law Review 787–788.
115 Skolnik (n 102) 90.
116 J.M. Balkin, ‘The Constitution of Status’ (1997) 106 Yale Law Journal 2366.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
same note, McColgan stresses that ‘[e]schewing any demand for immutability
as a criterion for protection […] sidesteps entanglement in sterile and
(at least currently) unwinnable arguments about the extent to which, for
example, sexual preference is the product of nature or nurture, or religion a
question of choice’. To this end, as Clarke suggests, rather than focusing on
the immutability of certain traits, it would be more constructive to focus on
how biases based on specic traits perpetuate systemic inequality. Besides,
judicial reliance on immutability, as the only test for selecting a protected
ground, has been severely criticised for a number of reasons, including its
too restrictive nature, leaving out certain groups of people who might also be
in need of protection from discrimination.
3.2.1.3 Is Homelessness a Denable Characteristic?
Lastly, what has been questioned in literature is whether homelessness
can be dened or, in more concrete terms, whether people experiencing
homelessness consist of a denable group. This article has already answered
this question, to the extent that it has already dened homelessness as a
process encompassing four main categories: rooessness, houselessness,
insecure housing and inadequate housing, following the typology of
homelessness and housing exclusion. The approach adopted in this article
considers not only the physical absence of a home or shelter, but also the
quality and security of housing. Therefore, homelessness encompasses
various circumstances and situations, from people sleeping on the streets to
those living in temporary accommodations, such as shelters or transitional
housing. This heterogeneity makes homelessness challenging to dene, but
it can be dened in a very precise manner, albeit not universally agreed.
Besides, many already enumerated grounds of protection, such as race or
religion, lack both denability and homogeneity, indicating that none of
the proposed requirements is conclusive concerning the question of protected
grounds.
117 McColgan (n 56) 60.
118 Clarke (n 102) 98.
119 K. Yoshino, ‘Assimilationist bias in equal protection: the visibility presumption and the
case of “Don’t ask, don’t tell”’ (1998) 108 Yale Law Journal 510–515, at 530–536; Khaitan
(n 69) 58.
120 See (n 8) 217.
121 See under subsection 2.1.1 above, 216.
122 See in this sense also Skolnik (n102), 90; Giannini (n102) 33.
123 Sealy-Harrington (n 111).
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
3.2.2 Added Value of Including Homelessness in the List of Protected
Grounds
Discrimination on the ground of homelessness has rarely been addressed
efectively or subjected to efective judicial or administrative remedies.
Indeed, as this article has strived to show, anti-discrimination legislation in
Europe has limitations in terms of the protected grounds of discrimination,
entailing an important gap in the protection of some individuals or groups of
individuals when they are victims of discrimination and creating signicant
barriers for them to access their fundamental human rights. Most importantly,
this can perpetuate systemic discrimination and further marginalise
already vulnerable groups in society and, particularly, people experiencing
homelessness.
To this end, this article aligns with the recommendation of the UN
Secretary-General encouraging Member States to ‘[c]ombat discrimination
and stereotypes against people experiencing homelessness, including by
strengthening anti-discrimination laws’. And what better and more efective
way to enhance anti-discrimination legislation than to expand the list of
protected grounds in order to include homelessness. Expanding the list of
protected grounds in anti-discrimination law in Europe is expected to reinforce
the efectiveness and coherence of the anti-discrimination legal framework
and encourage its implementation. The present section looks at how this
can be accomplished.
The rst and most obvious advantage such an expansion would ofer
is (additional) protection against discrimination. While many anti-
discrimination laws include a general clause which prohibits discrimination
based on ‘other status’, this may not always be sucient to provide complete
legal protection for individuals experiencing homelessness, and facing unique
challenges and forms of discrimination. Practice has shown that, without a
specic statutory protective framework to prohibit discrimination based on
homelessness, individuals who experience such discrimination may be left
without a legal remedy or means of seeking redress, which can, in turn, lead to
further marginalisation of those afected.
The ‘Street Lawyering project’, an innovative pilot program of legal aid
on the street launched in 2020 on the streets of Athens by HumanRights
124 //31/54 (n 7) para. 27.
125 /.5/2020/3 (n 7) para. 72(h).
126 Ganty & Benito Sánchez (n 94), 21 et seq.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
360 inv partnership with Steps, is illustrative of this reality. Identifying
the need to ofer legal assistance to people in a state of marginal survival, such
as among others people who are homeless, the project ofers legal counselling
to people who are in homelessness, in transitional hosting facilities or in
inappropriate, inadequate or precarious housing conditions. Among the
notable ndings of the project is that the lack of adequate housing for these
people afects their integration process and leads to their exclusion from social
services. In addition, when it comes to recording discriminatory practices or
incidents of racist violence experienced by those people, lawyers have to rely
on other enumerated protected grounds, such as for instance national or ethnic
origin or gender identity – if, of course, such ground applies to the person in
question – as homelessness per se is not acknowledged by the legislator.
Thus, without a statutory prohibition of discrimination on the ground of
homelessness, people experiencing homelessness are left without any legal
remedy and often nd themselves powerless and further marginalised.
Of course, one would argue that, when a ground is not explicitly named,
it is often covered by judicial interpretation, policy and decision-making.
However, as this article has shown, even under an open-ended clause,
courts may be reluctant to nd discrimination on grounds which are not
explicitly enumerated, because of a lack of boldness. To address this issue,
expanding the list of protected grounds to include new grounds, such as for
instance discrimination based on homelessness, is expected to provide legal
certainty and precision regarding the scope of anti-discrimination law. This
will also relieve courts from having to develop a protracted justication on why
a certain characteristic or situation should be retained as a prohibited ground
of discrimination. In other terms, ‘the existence of the protected ground as
part of the scope of anti-discrimination law would be impossible to contest or
doubt as such’.
127 Both of them are Civil Society Organisations active in the field of human rights
promotion and protection in Greece.
128 HumanRights360, Steps, Street Lawyering, provision of legal aid to homeless persons –
defending and promoting the rights of people living on the streets. Action Report August
2020–March 2021.
129 Idem, 2.
130 Idem, 18.
131 Idem, 14.
132 See under subsection 3 above, 225 et seq.
133 Ganty & Benito Sánchez (n 94) 26.
134 Ibidem.
135 Idem, 26–27.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
The second advantage, which not only strongly relates to the previously
mentioned but also enhances it, consists in the fact that expanding the list
would give people experiencing homelessness visibility. Rough sleeping
is the most common experience of homelessness and, at the same time, its
most visible manifestation. However, as this article has already demonstrated,
homelessness is a lot more than a lack of physical housing. It might also
capture the experience of people living in severely inadequate and insecure
accommodations or lacking access to afordable housing. Therefore, it is safe
to conclude that a signicant proportion of people experiencing homelessness
remain invisible. On top of that, these people are subjected to stereotyping,
stigma and discrimination, which also remain primarily invisible, raising the
question of prohibiting discrimination against them more than ever. The
expansion of the list of protected grounds to include discrimination based
on homelessness allows for the identication and acknowledgment of people
experiencing homelessness as in need of protection. Additionally, increased
awareness of the human rights violations they encounter is facilitated and
their empowerment is promoted. Though ‘not a magical formula’, this is
particularly important for groups that face intersecting forms of discrimination,
such as people experiencing homelessness.
In addition to providing visibility and, hence, protection from discriminatory
treatment, adding a ground for discrimination based on homelessness would
serve the broader educational and deterrent function of the law. Indeed,
recognising homelessness as a ground of discrimination would have a
powerful educative efect and would serve as a deterrent to discriminatory
treatment. In particular, bearing in mind that ‘[t]he most extraordinary power
of the law is its ability to transform the use of force into a legitimate exercise
of authority’, a law prohibiting discrimination based on homelessness would
send a clear message and enable discriminatory treatment of persons who are
homeless to be recognised, named and addressed. In addition, it would
most probably challenge stereotypes about people experiencing homelessness
in policymaking, sending a signal to legislators and policymakers about
assumptions and biases that can lead to detrimental social attitudes.
Finally, and taking into consideration the serious challenges that data
collection on homelessness encounters, explicit recognition of homelessness
136 Idem, 26.
137 M. García-Villegas, The Powers of Law: A Comparative Analysis of Sociopolitical Legal
Studies (Cambridge University Press, 2018) 23.
138 P. Lynch, B. Stagoll, ‘Promoting equality: homelessness and discrimination’ (2002) 7(2)
Deakin Law Review 295.
139 Ibidem.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
as a protected ground can indeed be helpful in combatting structural
discrimination, as it enables researchers and data collectors to identify
and measure the extent of discrimination experienced by people who are
homeless. This data can then be used to inform policymaking and create
targeted interventions to address the root causes of discrimination based on
homelessness.
4 Conclusion
Anti-discrimination law does not explicitly address discrimination based
on homelessness per se. Which, of course, does not mean that it does not
occur. Discrimination based on homelessness can have multiple causes and
consequences that go beyond lack of economic resources. Homelessness is
both a consequence and a potential cause of severe deprivations in education,
health, housing, dignity and social inclusion. These deprivations can, in turn,
perpetuate and exacerbate the experience of homelessness. Homelessness
can also intersect with other protected grounds of discrimination like race,
gender and disability. This can result in a compounding efect, exacerbating
the already disadvantaged position of those belonging to these marginalised
groups, such as migrants, women or people with disabilities.
This article delineates the ways in which anti-discrimination law has bypassed
this crosscutting and complex ‘intersectional’ nature of homelessness. Starting
by adopting a more inclusive and exible denition, which does not limit itself
only to rooessness, it demonstrates that homelessness does not only relate to
a breach of the right to adequate housing – despite its obvious link to the topic
– but furthermore constitutes a profound assault on a broad range of human
rights and principles, including prohibition of discrimination. By highlighting
the complex and interrelated nature of discrimination and homelessness,
it then illustrates how discrimination plays a dual role in homelessness,
functioning both as a cause and a consequence. Taking examples regarding,
for instance, + persons or migrants facing discrimination in housing,
it demonstrates, in particular, how apart from perpetuating homelessness,
discrimination can also contribute to it.
The article places the issue of homelessness and discrimination in a human
rights framework, emphasising the importance of addressing homelessness and
140 See also in this sense Ganty & Benito Sánchez (n 94) 26.
141 Along the same lines, see the discussion about discrimination and poverty in Atrey
(n 101) 439.
breaking the vicious circle between discrimination
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/
discrimination as human rights violations. As aptly pointed out in literature,
‘[u]tilising the human rights discourse when referring to homelessness allows
the articulation of rights for the individual and the collective […] and most
importantly highlights the link between the aspiration and the reality through
standards, benchmarks and indicators’. To this end, the article argues that
enhancing the anti-discrimination legislation is an essential component
of breaking the vicious circle between homelessness and discrimination. In
particular, it suggests acknowledging homelessness as a protected ground
under anti-discrimination law. Another point this article makes is that there are
several ways to work within anti-discrimination law without demanding that a
ground of discrimination ts exactly into the traditional categories of protected
grounds. Looking forward, the article conceptualises that discrimination based
on homelessness should receive heightened scrutiny, not because homelessness
is immutable, but because people should not be discriminated against based
on their housing status. In practice, the determination of protected grounds
is a dynamic and evolving process that involves multiple sources of inuence,
including political activism, constitutional instruments, statutes, judicial
interpretation and international or regional instruments. These sources
can interact and inuence each other, shaping the legal framework for the
protection of various rights and freedoms.
Such a concrete choice by policy and lawmakers would not only align with
international human rights standards, reecting a commitment to human
rights promotion and protection, but it would, furthermore, contribute in
practice to addressing discrimination encountered by individuals experiencing
homelessness. This action would increase their visibility and provide them
with legal protection. In addition, adding a ground for discrimination based
on homelessness would serve the broader educational and deterrent function
of the law. It would convey a very powerful symbolic message about the
protection granted by the legislator to specic vulnerable groups, fostering
awareness and promoting social inclusion among marginalised communities.
Finally, explicitly naming and recognising homelessness as a separate protected
ground is expected to make the judges’ task easier, to the extent that they
would no longer need to resort to protracted arguments to protect individuals
with reference to other less obvious grounds.
142 C. Austin, ‘Rights for the Homeless’ (1996) 16 Australian Housing and Urban Research
Institute, Working Paper No 5.
143 Fredman (n 53) 170.
144 Ibidem.
fragkou and tsadiras
() –
Downloaded from Brill.com 12/14/2023 01:03:19PM
via Open Access. This is an open access article distributed under the terms
of the CC BY 4.0 license.
https://creativecommons.org/licenses/by/4.0/