Abstract
Excerpted From: Martin YC Kwan, Regional Discrimination as a Quasi-form of Racial Discrimination: Comparing the Protection under Anglo-American, International and Chinese Laws, 39 American University International Law Review 485 (2024) (113 Footnotes) (Full Document)
Regional discrimination is a problem in many different countries. This invidious act is based on a person's regional origin, which is an immutable trait and has nothing to do with one's ability to contribute to society. However, regional discrimination has not been addressed by the anti-discrimination laws currently in place in the United States and the United Kingdom. This article seeks to explore this issue from two perspectives.
First, this article explores whether it is possible to remedy the absence of direct protection by fitting regional discrimination within the scope of current anti-racial discrimination laws. There can be both significant conceptual and statistical overlap between race and region. Conceptually, for example, the term “White trash” is premised on the rural-urban region divide, so it is about regional discrimination. But there is also a racialized element in the emphasis of “White”. Even though the term “White trash” does not include all White people, but singles out only rural White people, it is difficult to ignore the intra-racial dynamics involved between urban White people and rural White people. There is an inseparable overlap between race, class, and region. Statistically, regional discrimination becomes even more akin to racial discrimination especially in regions or countries, which are less racially diverse (i.e. with the population substantially composed of the same race). Depending on the circumstances, regional discrimination can resemble racial discrimination.
As “region” is legally distinct from race, it is not possible address regional discrimination by filing suit for direct racial discrimination. The only option is to contend indirect discrimination, in the sense that the regional discrimination has a disparate impact of (intra- or inter-) racial discrimination. Such a claim can cover limited circumstances.
Second, this article highlights China's protection against regional discrimination and evaluates the Chinese laws' scope and gaps in protections. The Chinese policy-making process usually tests the feasibility of a socio-legal policy by first experimenting with small-scale implementation, and, if the small-scale implementation is successful, then full implementation of the policy. Therefore, the fact that this prohibition was introduced in 2019 and affirmed again in 2022 crucially indicates its effectiveness and suitability. In other words, the tested Chinese approach is ripe for academic consideration and is highly noteworthy for other countries. It is argued that dealing with regionalism helpfully avoids raising any politically incorrect suggestion of quasi-intra-racial discrimination.
One possible reason for the absence of protection in Anglo-American jurisdictions is the inaction of international law (and insufficient attention from international academia). Such inattention undermines the perceived urgency and importance of regional discrimination. However, the Chinese approach reminds us that there is no need to wait for international law when the problem deserves immediate attention and action.
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It is not clear why there is no protection against regional discrimination. In effect, the lack of legal protection implies that the shared national origin between the discriminator and the victim absolves the normative wrongfulness of the discrimination. However, this is not a compelling argument as it fails to account for other impermissible discrimination when being of the same race, gender, etc. is no defense to intra-group discrimination.
Rather, regional discrimination unquestionably fulfills all of the criteria for proscription. The major goal of anti-discriminatory law is to prevent differential and unfair treatment based on immutable traits. An immutable trait would be one that an individual cannot freely choose, such as an attribute that is inherent from birth and not subject to change. It also cannot be changed subsequently and has no relevance to “one's ability to contribute to society.” A person's regional origin would be a clear example of an immutable characteristic; therefore, it deserves legal protection.
Besides, there are other considerations which would support a ban on regional discrimination. Regional origin denotes an individual and collective identity that should be respected in order to uphold diversity. To undermine one's identity via discrimination would affect one's “personality.” Locational discrimination also affects one's right to a private life (pursuant to the rights to family life and privacy) in many ways. For example, one may refrain from choosing certain discriminated regions as the place to establish home and to start a new family; thus, the discrimination may prevent them from freely expressing their choice of regional origin.
Furthermore, regional discrimination can be used as a pretext for prohibited forms of discrimination. Although one may be able to find distinctions between this and racial discrimination, they resemble each other in many senses and situations, as highlighted in Section II. Moreover, Rhee and Scott highlighted that regional discrimination could worsen racism, because it (i) encourages the act of stereotyping, and (ii) it could also be used to whitewash White privilege by making fun of Whites through regionalism.
From another perspective, addressing regionalism has spillover benefits of dealing with other social issues. First, it will curb classism given their overlap. Second, it also helps avoid the politically sensitive issue of classifying an act as intra-racial discrimination.
Yet, there is, very disappointingly, no protection under Anglo-American laws despite the occurrence of regional discrimination. A possible reason for the lack of Anglo-American protection is the lack of coverage by international law, which undermines the perceived urgency and importance of such protection. The international momentum for regional discrimination protection is evidently growing, as academics have already been pressing for the elimination of the analogous problem of classism. Therefore, international law should include “region” as a protected characteristic, especially when regional discrimination happens in many countries. But there is no need to wait for international law to act first, especially considering that China has already taken the lead in sanctioning such invidious discriminatory acts based on region. Regional discrimination is undoubtedly a notable social problem, and the U.S. and other countries should not lag behind in promoting equality.
KWAN Yat Cheung Martin is an international scholar and consultant who is currently an Honorary Fellow at the Asian Institute of International Financial Law, University of Hong Kong; Affiliate, Center for Information, Technology, and Public Life, University of North Carolina at Chapel Hill; Associate, Centre for Development Economics and Sustainability, Monash University. In 2022, he was selected as a Associate in Research at the Fairbank Center for Chinese Studies at Harvard University.
