The prevalence of equalities legislation in various Westernised settings, particularly the US and UK has been used to give credence to the idea that these settings are post-racial, and conversations about structural racism now redundant. Afroze F. Zaidi argues that this is not only far from the lived realities of minoritized peoples, but can also be instrumentalised against them.
When people suggest that we live in a post-racial world, one of the key supporting elements for their argument is equality legislation which currently exists in most Western nation states. Racial equality, along with equality for religious belief, gender, disability etc. is ostensibly enshrined in law. In the case of both the US and Britain (England, Scotland, and Wales), ‘protected characteristics’ have been defined in order to provide a framework for equality legislation.
Characteristics such as race, religious belief, disability, sexual orientation and gender are ‘protected’ under both British and American law. And yet in both British and American society, people belonging to any of these marginalised groups will confirm that their experience of living in these societies has been far from equal. While these laws exist in order to theoretically proclaim equality for people of all races, faiths etc, they fall short in terms of the protection they afford to marginalised groups in practice. While claiming the existence of a utopian ‘equality’, these laws fail to take into account privilege and power imbalances of hegemonic/majority groups over subaltern/minority ones. Moreover, by not taking these imbalances of power and structural advantage into account, these laws absolve the hegemon of accountability for the power that it possesses.
For instance, when it comes to race as a protected characteristic, a white person is as protected because of their race as a Black person. While this may appear to be a glaring shortcoming, in equality legislation, it is equally as immutable. In this situation the law is a blunt instrument that may in fact fail to protect the very groups because of whom protected characteristics were defined.
In a society where ‘reverse discrimination’ is effectively enshrined in law, what recourse do minoritised groups have to justice? This article aims to examine the implications of this understanding of protected characteristics, not just in a legal context but also in society at large. It starts by looking at what the law says and who it claims to protect. But moreover, it is important to consider how this understanding of protected characteristics is reflected in wider society. While focusing on ‘race’, two pertinent case studies help to problematise the treatment of race as a protected characteristic in the US and Britain.
What the law says
Equality legislation in British and US law is markedly different, but it shares the reliance on protected characteristics as a framework. In British law, the Equalities Act of 2010 specifically lists the following protected characteristics:
• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation
The Equalities Act broadly applies to employment opportunities and access to public services. It doesn’t apply to online spaces, and the Online Safety Bill currently being scrutinised in parliament is intended to counter online abuse. Separately, the Racial and Religious Hatred Act of 2006 sets out the conditions in which an act can be described as being motivated by racial or religious hatred and whether it therefore counts as a hate crime.
Meanwhile in the US, while several protected characteristics come from the Civil Rights Act of 1964, below is a complete list, along with the applicable laws, from an article by Robert Langley:
| Protected Characteristic | Federal Law Establishing Protected Status |
| Race | Civil Rights Act of 1964 |
| Religious belief | Civil Rights Act of 1964 |
| National origin | Civil Rights Act of 1964 |
| Age (40 years and up) | Age Discrimination in Employment Act of 1975 |
| Sex | Equal Pay Act of 1963 and Civil Rights Act of 1964 |
| Pregnancy | Pregnancy Discrimination Act of 1978 |
| Citizenship | Immigration Reform and Control Act of 1986 |
| Familial status | Civil Rights Act of 1968 |
| Disability status | Rehabilitation Act of 1973 and Americans with Disabilities Act of 1990 |
| Veteran status | Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act |
| Genetic information | Genetic Information Nondiscrimination Act of 2008 |
There are some notable differences between the two lists of protected groups, such as the absence of socio-economic class in both, and the inclusion of weight in the US but not in Britain. For the purpose of this article, the characteristic of ‘race’ will be the primary focus. It’s important to note that both the 2010 Equality Act and the 1964 Civil Rights Act mention discrimination on the basis of race (and in the case of the US, segregation as well), but neither mentions the terms ‘racism’ or ‘racist’.
Racism, of course, goes beyond mere discrimination. It includes the perpetual violence of structures and institutions, along with the power imbalances that allow this violence to go unchecked. It isn’t possible, therefore, for a person from a marginalised, oppressed, powerless racialised group to be racist towards a person from a group that holds historic power and socio/economic privilege. Racism and discrimination are not the same, and while it may be possible to discriminate against a white person for being white, doing so is not ‘racist’.
“It’s not the criminal JUSTICE system. It’s the criminal LEGAL system because it is not invested in justice.” – Ambereen Dadabhoy
So it is ironically significant that, in both Britain and the US, the laws mention racial discrimination but not racism. Because it is indeed the case that while these laws prohibit discrimination on the basis of race, they do not prohibit racism, at least not in its authentic sense. In reducing racism to discrimination, these laws can be seen as falling short of their intended purpose – but maybe they’re working exactly as they were designed to work. Erasing the power imbalance in which racism exists, and largely chalking it down to interpersonal discrimination, conveniently absolves the structures and institutions responsible for sustaining racism of any accountability. Not only does the law in its current form do this, it adds in protection for the hegemonic group (white people) by homogenising racialised groups. Worse still, it serves to obfuscate popular understandings of racism, leading to a widespread, misguided victimisation of white people via accusations of reverse racism. The result is unending discourse around who the real victim is, with regard for neither the pursuit of justice nor indeed historical facts.
Case study: Dear white people in the UK
This discourse around the victimisation of white people doesn’t take place in a vacuum. It has consequences for racially marginalised groups. One case that points to this is NHS employee Aishnine Benjamin, who was asked in June 2020 to write a blog post for an NHS-affiliated staff website. This was around the time the BLM movement was gaining momentum in the US and spilling over to the UK. Benjamin works as Equality, Diversity and Inclusion lead at the Nursing and Midwifery Council. Her blog post, entitled ‘Dear white people in the UK’, was intended to be a guide for how white people can be allies in fighting against racism. It begins with a section addressing white people specifically, and then it goes on to address everyone. Although advice in the blog is as innocuous as asking white people to listen, have empathy and educate themselves, it prompted a backlash when it was picked up and reported by the Daily Mail in September 2021. This resulted in Benjamin receiving a barrage of abuse online, much of it claiming that she was racist for using the term ‘white people’. Extracts from some select tweets are below:
“The moment anybody stereotypes any person or people by their race, they are racist. So let’s call this what it is. Racism. Aishnine Benjamin is a racist and by publishing this the NHS is guilty of racism.”[1]
“The first 3 words are quintessentially racist. Everything after is pure hate and bigotry.”[2]
“Well Aishnine Benjamin you sound like a racist little madam. Stop picking on whites.”[3]
“Oh look another anti-white racist operating under the guise of ‘diversity’.”[4]
“There are so many kids growing up in mixed households and they’ll grow up with this divisive rubbish aimed at the white member if their family. You read things like that and realise yes, Britain is racist, against whites.”[5]
Based on a search on Twitter, a rough count showed that tweets accusing Benjamin of racism easily numbered in the hundreds. But many went further, trying to bring Benjamin’s purported racism to the attention of various influential bodies including the NHS, prime minister Boris Johnson and health secretary Sajid Javid. There were also repeated calls for Benjamin to be fired:
“You are a racist pure and simple. For that you should be fired. But you won’t will you? That’s black privilege. in modern society.”[6]
” @BorisJohnson @sajidjavid
help save the nhs and get rid of racist like Aishnine Benjamin I really can’t believe that such a job exist, god knows what her salary is, but a total waste of money what ever it is.”[7]
In the wake of this backlash, a Change.org petition was launched demanding Benjamin’s suspension from the British Medical Association. The petition is still live, and has so far managed to gain (at the time of writing) 632 signatures out of its target of 1,000. What is most interesting, though, is that the petition cites the 2010 Equalities Act, claiming:
“Aishnine Benjamin published a racist. anti-white blog post entitled “Dear White People in The UK” which facilitates inequality and hatred.
The Equality Act 2010 says you must not be discriminated against because of your race.
In the Equality Act, race can mean your colour, or your nationality (including your citizenship).”
Fortunately for Benjamin, neither the backlash from the Daily Mail article nor the petition appears to have jeopardised her employment with the NHS. However, this doesn’t diminish the impact of the harassment and abuse she faced online, thanks to her being targeted by a tabloid. Moreover, the reaction from hundreds of people to Benjamin’s blog post demonstrates two things. First is the obvious fragility of white people when confronted with their whiteness. Too many people are convinced that not only can white people be victims of racism, but merely referring to whiteness is a racist act.
A well-known example of this is when, in March 2019, British Channel 4 presenter Jon Snow said while reporting on a pro-Brexit rally in Westminster that he’d “never seen so many white people in one place”. No fewer than 2,644 people complained to Ofcom about Snow’s remark. In response, former UKIP leader Nigel Farage went on LBC radio and said Snow “should be attacked” for his “terrible condescending bias”. Farage’s comment that Snow deserved to be “attacked” received only five complaints. While Ofcom investigated both Snow and Farage’s remarks, a spokesperson responded on the matter as though both incidents were comparable and held equal weight, saying “We’re investigating whether comments made by the presenters [Snow and Farage] on these programmes broke our rules on offensive content.” Channel 4 went as far as to issue an apology, saying:
“…this was a spontaneous comment reflecting [Snow’s] observation that in a London demonstration of that size, ethnic minorities seemed to be significantly under-represented. We regret any offence caused by his comment.”
In addition to white fragility, Benjamin’s case shows how the framing of the 2010 Equality Act, and race as a protected characteristic within it, actively contributes to a fundamental and widespread misunderstanding of what does and does not constitute racism. This, in turn, has led to feelings of victimisation among white people who have been confronted with their privilege – a theme that is particularly evident in petition comments. Some examples of this sentiment are below:
“As usual, American politics sneezes and we catch the cold. This is very simple to 3rd reichs agenda . Just were the ones getting racially cleansed. This is our country we built it,we made it we deserve it. Everyone like this idiot are just ungrateful destroyers,bitter, evil sinister destructive people. Why can’t they just leave and take the racists like them with them and never come back ???”
“Seems like we are second class citizens in our own country, if it was a white person they would of been sacked straight away. Fed up with all the box ticking. Those promoting race equality urgently need to think again and get involved in the discussion of whiteness!!!”
“Sick to death of Marxist racists accusing white people of racism.. Need to look in the mirror to see who the real racist are”
Ultimately, further perpetuation of this misunderstanding of racism undermines the purported aims of the Equality Act, rendering it effectively useless for marginalised racial groups.
White privilege
Pointing out white privilege, as Benjamin’s case demonstrates, is a particularly fraught exercise. In October 2021, Tory MP Jonathan Gullis was reported to have said the term ‘white privilege’ comes from “extremist ideology”, and people who use it should be reported to Prevent. He claimed:
“It’s racist to actually suggest that everyone who’s white somehow is… riddled with privilege”
Gullis went on to say that teachers who use the term should face disciplinary action. While Gullis reportedly received criticism for the comments, he remains in his position as MP and faced no action for making them. It’s also safe to assume that he isn’t alone amongst his colleagues in holding these views – he may have only said out loud what many politicians, white, Conservative, or otherwise, have been thinking.
Indeed, in June 2021, a watered-down version of Gullis’s comments appeared in a parliamentary report entitled ‘The forgotten: how White working-class pupils have been let down, and how to change it’. Kehinde Andrews, Professor of Black Studies, described the report as “complaining about those poor so-called White working-class boys being left behind by multicultural Britain” – a sentiment not dissimilar to the comments on the petition targeting Benjamin. Andrews said that in the report:
“We are warned that terminology like ‘White privilege’ is alienating the poor souls and that the usage of such terminology may even be breaking equality law.”
Again, this demonstrates the perpetual problem with the way equality legislation treats racial discrimination. Citing W.E.B. DuBois, Andrews touches on how “the ‘psychological wage’ of Whiteness” allows white people to maintain a feeling of superiority even while they feel victimised. He concludes:
“There is no crisis of the White working-class in the school system separate from the issues facing all children from a deprived background. The only difference is that White children are neither poor nor struggling in schools because of the colour of their skin, and in a racist society that is a privilege.”
The report on white working class pupils again shows how sorely, and perhaps wilfully, misplaced and ignorant popular understandings of race and racism are. But moreover, along with the case of Benjamin and Gullis, it demonstrates the real-world impact of this ignorance on racially marginalised groups.
Case study: Colin Kaepernick
Cases so far have considered popular notions of racism in the UK. But I would argue that these notions bear much similarity to other parts of the West, including the US where a similar model of race as a protected characteristic is applied in legislation. A renowned and obvious example is that of American footballer Colin Kaepernick and the treatment he has received from the American football industry, American media, and the wider public. Regarding the latter, an examination of responses to Kaepernick on Twitter shows that those who believe ‘All Lives Matter’ invariably also believe saying ‘Black Lives Matter’ is racist. Accusations of racism hurled at Kaepernick must easily number in the thousands.
It was reported in 2018 that Alex White, a lawyer and Republican candidate who ran for Senate in Kentucky, said “Kaepernick is by definition racist”. White posted the comment on his campaign Facebook page; and although it was later deleted, he repeated the sentiment in an interview with the Courier Journal. One can only guess what definition White was referring to, and it’s probably safe to assume that it was a reference to racial discrimination in American law. White’s comment was apparently in response to a T-shirt with a picture of Malcolm X and Fidel Castro which Kaepernick had worn at a post-game press conference. In the same interview, he said “all lives matter”, and added:
“We need to treat members of minorities or any groups whether religious or ethic, whatever the identity may be should be treated equally under the law and by law enforcement — period”
The same article goes on to mention how then-president Donald Trump instrumentalised Kaepernick’s protests “as a culture war weapon to energize his base”. In 2017, Trump openly called the ire of his supporters, renowned proponents of the ‘All Lives Matter’ edict, upon Kaepernick. While speaking at a rally in Alabama about players who take the knee, Trump said the response to them should be:
“Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!”
In case there was any doubt as to the racism inherent in Trump’s sentiments, he later went on to say that maybe players who kneel during the anthem “shouldn’t be in the country”. This was in 2018, in response to the National Football League (NFL) introducing a ban on players kneeling during the national anthem and a fine for players who don’t comply. Unsurprisingly, Trump’s targeting of Kaepernick had a knock-on effect on his career, making teams reluctant to sign him on.
It’s worth noting that the response to Kaepernick has been motivated as much by the ‘un-American’ act of him taking the knee as it has by his activism and politics in general. In December 2020, Senator Lindsey Graham called Kaepernick ‘a racist’ for criticising US military attacks on Iran. This was in the aftermath of Iranian general Qasem Soleimani’s execution by US air strike, when Kaepernick tweeted:
“There is nothing new about American terrorist attacks against Black and Brown people for the expansion of American imperialism.”
Many right-wing politicians and media commentators joined in the criticism. Graham called Kaepernick’s response “un-American”, saying:
“He’s a racist. If you’re looking for racism in America, Mr. Kaepernick, look in the mirror. Your country is not the problem. It’s the Iranians and you’re so blinded by your hatred of Trump that you can’t see the difference between who we are and who the Ayatollah is.”
Most recently, right-wing commentator and former Fox News host Megyn Kelly called Kaepernick “racist” in response to his Netflix documentary ‘Colin in Black & White’. Speaking on her YouTube-aired show, views for which tend to number in the tens of thousands, Kelly said:
“I can’t believe somebody at Netflix didn’t get up and walk their asses out over this bullsh*t propaganda about our country, the NFL, White people in general. This is outrageous.”
Kelly’s outrage was purportedly based on a comparison Kaepernick made between the way players undergo physical checks for the NFL and the way slave traders examined slaves. The sentiment is similar to outrage expressed for the term ‘white privilege’. It stems from a deep-seated unwillingness to accept that colonialism never ended, that the exploitation and inequalities it brought forth persist to this day, and that white-run systems and institutions play a key role in their perpetuation.
No justice, no peace
“We can’t reform white supremacy. Visualize yourself writing “we will reform white supremacist systems & institutions to make them value our lives” on a piece of paper. Now visualize ripping it up & then opening your hand to let the bits of paper carry away on the wind. Let it go.
Letting go of reform & recognizing it as a fool’s errand will allow us to imagine a whole new world of possibilities & devise actual solutions to societal problems instead of restricting ourselves to what our enslavers forced upon us.” – Bree Newsome Bass
While laws involving protected characteristics are intended to address inequality and racism, they ring hollow if they fail to take into account the very real social structures within which these characteristics are situated. And ultimately, in seeking radical, transformative justice, groups facing one or more forms of oppression need to look far beyond the limitations of legal systems. There’s strength in numbers, and joining hands, combining forces, and working in solidarity with other oppressed groups can form a model for engagement not just in a political context but also in a community one. In doing so, we don’t just reject the colonial ‘divide and rule’ tactic – we form a sustainable, holistic model for political engagement that takes into account both individual and collective wellbeing.
It was Assata Shakur who said, “Nobody in the world, nobody in history, has ever gotten their freedom by appealing to the moral sense of the people who were oppressing them”. This is particularly relevant for marginalised groups who have sought to assimilate, enter the fold and become ‘model minorities’ despite the oppression they face. Falling in line with the system will not achieve justice, because the system is neither equipped nor willing to deliver justice. Rather than falling in line, disruption, no matter how uncomfortable it may be, is the only recourse. Demanding the justice to which we are entitled, not just within the bounds of the laws that exist but in spite of them. In order to do so requires constant critical engagement with, rather than uncritical acceptance of, the power structures that govern us.
Afroze Fatima Zaidi is a writer, editor and journalist. She has a background in academia and writing for online platforms. She tweets at @afrozefz.
[1] https://twitter.com/EvelKeevil/status/1433623942342881281?s=20
[2] https://twitter.com/USCriticalMess/status/1434302307483758592?s=20
[3] https://twitter.com/CalamityClaire4/status/1433811214610599976?s=20
[4] https://twitter.com/LeaveUnitedOrg/status/1434264484131057664?s=20
[5] https://twitter.com/SaraJane101/status/1434314892539047937?s=20
[6] https://twitter.com/DionysusIX/status/1434050160091406339?s=20
[7] https://twitter.com/AndyBuxey/status/1434961955995934731?s=20
