Equal access to the highest attainable standard of physical and mental health of persons with cumulative vulnerabilities

By Ádám Nagy, student LLB International and European Law, nagy student.rug.nl 

“I’m black, gay and a woman” says the iconic Cynthia-Rose Adams in the 2015 motion picture ‘Pitch Perfect 2’, wittily remarking that she is a person more likely to experience discrimination than her more privileged peers. While she is certainly the butt of the joke here, this supposedly funny example of cumulative vulnerabilities is the actual reality some people have to face on a daily basis. Certain groups have been identified as vulnerable to discrimination when it comes to equal access to health services and their protection is somewhat being ensured.[i] But what happens when someone belongs not only to one, but more of these vulnerable groups?

Some legal scholars like Martha Fineman have already suggested that the approach to vulnerability should be a more holistic one; each individual has various vulnerabilities and categorising them into strictly defined groups simply would not reflect reality.[ii] Hence, being a member of one vulnerable minority does not preclude being part of another. Following sheer logic, it can be deduced that in case someone belongs to more than one of these groups, there will be more grounds on which they can be discriminated against, thus they are more at risk of being the victims of health inequalities, too.

Even though the right to health has long been internationally recognised and enshrined in numerous conventions[iii], and there are specific standards present to ensure everyone can exercise this right[iv], unfortunately many groups are still subjected to health inequalities. For instance, members of the lesbian, gay, bisexual and transgender (LGBT) community have to face discrimination when accessing the healthcare system. Even though they are at higher risk of certain diseases and generally suffer from more chronic conditions[v], LGBT people are more likely to be refused services and be harassed by medical personnel based on bias.[vi] A survey conducted by the European Union’s Agency for Fundamental Rights (FRA) on discrimination experienced by the LGBT community found that one in ten respondents experienced discrimination when accessing healthcare services, with the level of discrimination being twice as high among transgender people.[vii] Similarly, people of colour are more likely to face discrimination when they interact with healthcare providers, and systemic racism itself can have negative consequences on their health.[viii]

Theoretically, when someone belongs to more of these vulnerable groups, they can experience intensified marginalisation and discrimination. Reality tends to confirm this logic: the FRA LGBT survey found that “discrimination is exacerbated by being female”[ix], and lesbian and bisexual women are more likely to experience discrimination when accessing services than gay and bisexual men. The hardest situation is the one that black sexual minority women have to face: they are triply marginalised and an American study affirmed that compared to their white sexual minority counterparts, discrimination against black LGBT women is more frequent and has a greater scope resulting in poorer social and psychological well-being.[x] The same study also found that black LGBT women had more severe depressive symptoms, poorer social well-being and more discrimination bases than black sexual minority men.[xi]

Hence, it can be concluded that Cynthia-Rose was right: people with cumulative vulnerabilities are indeed more susceptible to discrimination as clearly they have more grounds on which they can be treated worse. This implies that extra protection should be provided for doubly or triply marginalised groups, so that health inequalities could be done away with and the right to health of everyone could be ensured. But how could that envisaged protection function in real life? As with all attempts to eliminate discrimination, it might be best to start with spreading awareness. Even in academia, there is a rather scarce amount of studies and research conducted on cumulative discrimination. Healthcare personnel should be trained to recognise and acknowledge the existence of doubly or triply marginalised groups and they should learn how to approach them more sensibly. It is not enough to have general discrimination trainings – if that even exists in the particular system – but healthcare employees should be taught that e.g. a black man will have a different story and different issues than a black woman, and even amongst black women the experience of heterosexuals, lesbians or the disabled differs greatly. Moreover, victims of discrimination should actively be encouraged to turn to anti-discrimination services, and said services should give due importance to cumulative discrimination: they should not downplay the role of vulnerability in the non-equal treatment of victims and should explicitly address each issue when condemning discriminatory conduct.

In conclusion, it has been established that equal access to healthcare services for people with cumulative vulnerabilities can indeed more easily be hindered, and acknowledging this fact is the first step to do something about it. As these people are doubly or triply marginalised, it is important to guarantee them extra protection, but the question of how exactly to do that remains open.

[i] UN, Economic and Social Council, General Comment 14, The Right to the Highest Attainable Standard of Health, 2000, paras. 20-27.

[ii] Martha Albertson Fineman, 'Vulnerability and Inevitable Inequality' [2017] 4 Oslo Law Review 133-149.

[iii] See e.g. the International Covenant on Economic, Social and Cultural Rights; European Social Charter; Charter of Fundamental Rights of the EU; the Convention on the Elimination of All Forms of Discrimination against Women; etc.

[iv] UN, Economic and Social Council, General Comment 14, The Right to the Highest Attainable Standard of Health, 2000, paras 20-27.

[v] David J Lick et al, 'Minority Stress and Physical Health Among Sexual Minorities' [2013] 8(5) Perspect Psychol Sci 521-548.

[vi] Jaime M Grant et al, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (National Center for Transgender Equality and National Gay and Lesbian Task Force 2011).

[vii] European Union Agency for Fundamental Rights, EU LGBT Survey [2013] 20.

[viii] ST Bird and LM Bogart, 'Perceived Race-based and Socioeconomic Status (SES)-based Discrimination in Interactions with Health Care Providers' [2001] 11(3) Ethnicity & Disease 554-563.

[ix] European Union Agency for Fundamental Rights, EU LGBT Survey [2013] 18.

[x] Sarah K Calabrese et al, 'Exploring Discrimination and Mental Health Disparities Faced By Black Sexual Minority Women Using a Minority Stress Framework' [2015] 39(3) Psychology of Women Quarterly 287-304.

[xi] Ibid.