Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law

Abstract

The concept of stereotype is novel in the case law of the European Court of Human Rights. The ECtHR has started to refer to stereotypes in several recent judgments concerning, notably, race and gender equality. In contrast, anti-stereotyping has long been a central feature of both American and Canadian equal protection law. Offering a comparison of the legal reasoning of the ECtHR and the U.S. and Canadian Supreme Courts, this Article uncovers both the pitfalls and the potential of the stereotype concept to advance transformative equality. It is hard to develop a proper legal response to stereotyping, as not all stereotypes are bad and, moreover, laws are inevitably based on generalizations. At a minimum, this Article argues, courts should name stereotypes well and carefully examine their harm. This comparative analysis shows that, at its best, legal reasoning can expose and target the invidious cycle wherein stereotyping and discrimination perpetuate each other. Both the U.S. Supreme Court and its Canadian counterpart, however, show a tendency to equate stereotypes with unfair generalizations. This Article cautions against that. Stereotypes can indeed be inaccurate or negative, but they can also be statistically correct, or prescriptive. When stereotypes are conceived of too narrowly (as only raising issues of accuracy), the concept loses its ability to strengthen a transformative equality analysis. This Article first charts and critiques the emergent ECtHR case law on stereotypes. It then offers a fresh analysis of the strengths and weaknesses of the U.S. and Canadian Supreme Courts' treatment of stereotypes. Two deceptively simple questions will form the leitmotif throughout the comparison: (i) how do these courts conceive of stereotypes, and (ii) given that stereotyping is not necessarily always negative or problematic, how do these courts determine whether the application of a stereotype is invidious? It concludes by exploring what the ECtHR can borrow from American and Canadian equal protection analysis.