Kampen om diskrimineringsdiskursen

Sammanfattning: Sweden currently has a civil law against discrimination (2008:567) that covers several aspects of society and seven different grounds for discrimination. This law is the product of the consolidation – and to some extent modification – of a number of laws primarily passed between 1999 and 2006. The law contains prohibitions against discrimination and proscribes certain active measures to foster equality. The stated purpose of the law is to "combat discrimination and in other ways promote equal rights and opportunities.", and the purpose of the consolidation was to make the law more forceful and effective. Despite the reform and despite broad political support for measures to combat discrimination there are few signs that societal discrimination and inequality have been reduced as a consequence of the new law. Judgments in the field of discrimination are rare compared to the number of complaints. This paper explores if possible causes for this discrepancy can be found in the Swedish discourse on discrimination in the time period when the current laws were developed. In the paper the government's formulation of the problem of discrimination – stated in conjunction with the passing of the law against discrimination – is compared to some alternative legal and judicial formulations. The paper also explores what significance is ascribed to the prohibition against discrimination in comparison with other political measures. The analysis is aided by readings of theoretical analyses of anti-discrimination law, whereby three dominating judicial perspectives are identified: the individual perspective, the group perspective and the structural perspective. In addition to these dominant perspectives, a market-critical theoretical perspective is applied in the analysis of anti-discrimination law. The paper shows that the process leading up to the law contained a struggle between proponents of the individual perspective (primarily the government) and the group- and structure-based perspectives (primarily other texts) for interpretative prerogative in discrimination discourse. Points of contention were found in all factors addressed, such as the purpose, function, focus and scope of anti-discriminatory law/politics. The fundamental question was found to be whether the courts should ascertain equal treatment of individuals irrespective of specific traits or if laws should be aimed at protecting certain groups and combating certain destructive societal structures. With the passing of the law against discrimination in 2009 the formulation of discrimination as an individual problem was consolidated in Swedish discrimination discourse. When applying a market-critical perspective to the discourse of anti-discrimination law, the conclusion becomes that the fundamental conflict is ideological, and rooted in differing views of the market. Should politics be used to liberate the market from external disturbances to its competitive logic? Or should politics be used to combat (problems within) a dysfunctional market system? The problem formulation provided by the government can be said to focus on the former, which is made apparent by what is suggested and preferred (prohibitions against discrimination, promotion of equal rights for businesspeople, deregulation or soft-law-regulations) and what is not suggested (measures that affect business negatively, primarily demands to accommodate people with disabilities). The analysis points to a possible contributing factor to the meager results of anti-discriminatory law: the discourse preceding the law and the resulting conflation of anti-discriminatory law with neoliberal ideals like depoliticisation, a focus on the individual and on competition. The end result of these factors is a contemporary Swedish anti-discrimination law that does not challenge the conflicts that produce unfair structures.