"Discrimination" due to COVID-19 Certificate requirements

Question

Many European countries issue COVID-19 Certificates (with varying names), that indicate whether a person is vaccinated, has recovered or has been tested. Access to some locations (restaurants, cinemas, discos, etc - varies by country) is only allowed if you present such a proof. Now people that don't want to get vaccinated call this discrimination, because they need to get tested very often to keep the right to visit those locations (as a test is only valid 48 to 72 hours, while a vaccination is currently valid a year).

But can this really be called "Discrimination"? I thought that the term was defined for a fact that one cannot change or has been given by birth (such as color of skin, sex, origin or religion). Except for a small minority which cannot be vaccinated for medical reasons, everyone has the ability to change one's vaccination status. (This seems to be backed by https://de.wikipedia.org/wiki/Diskriminierung)

Answer 1

It’s discrimination

Discrimination happens whenever a decision is made that favours one person or group and disfavours another person or group.

For example, as I write the Olympics are drawing to a close. These clearly discriminate against people who are not good at sport.

However, I think you may be confusing “discrimination” with the much narrower class of “unlawful discrimination”. Simply put, discrimination is lawful unless there is a law that says it isn’t.

Unlawful Discrimination

Focussing on Swiss law, Article 8of the Constitution says:

No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological, or political convictions, or because of a physical, mental or psychological disability.

An argument could be made that a decision not to get vaccinated or tested was a “way of life”, an “ideological conviction” or, from my point of view, a “psychological disability”. As such, a law that discriminated against such people would be unconstitutional.

Except, Article 36 says:

Restrictions on fundamental rights must have a legal basis. Significant restrictions must have their basis in a federal act. The foregoing does not apply in cases of serious and immediate danger where no other course of action is possible.

Restrictions on fundamental rights must be justified in the public interest or for the protection of the fundamental rights of others.

Any restrictions on fundamental rights must be proportionate.

The essence of fundamental rights is sacrosanct.

So, if there is a Federal law mandating vaccine passports and if the government can show that the restriction is “justified” and “proportionate” (which they have a decent shot at) such a law is constitutional.

Answer 2

"Discrimination" is in some way treating people differently from other people. Much discrimination is a sound idea. Not letting someone fly a plane who does not have pilot training is discrimination, but not a bad kind. So is not allowing someone to do surgery who has not trained as a doctor.

Unlawful discrimination is discrimination that a particular law in a particular country declares to be forbidden. Different countries have different laws for what kinds of discrimination is unlawful under what circumstances.

Discrimination on a basis not forbidden by law is legal, even if immoral. For example, a restaurant could, in most if not all countries, ban left-handed people from being served there. This might be immoral, but would not be illegal, because no law has made it illegal.

Commonly, discrimination on the basis of religion, ethnicity, national origin, sex, or political opinion is unlawful. In some jurisdictions discrimination on the basis of disability is unlawful. Other bases may be unlawful in some places. There may be exceptions. Employment discrimination may not have the same standards as housing discrimination, and admission to public places or ability to run for public office may be different yet. All this will vary based on the particular laws of particular places.

Note that some of these protected classes are things about which people have no choice, such as sex and national origin, others are matters of choice such as religion and political opinion. Laws may create a protected class on any basis. Note also that many things about which people have little or no choice, such as height, handedness, or intelligence, are not protected categories in most places.

To the best of my understanding being vaccinated or not is not a protected class in most if not all of Europe, so legal distinctions may be made based on vaccination status. In such jurisdictions, discrimination in favor of those who are vaccinated is legal, although some may think it wrong.

A few US states have made it unlawful to restrict various public or private services or access to places on the basis of vaccination status. I am not aware of any country in Europe that has such a law.

Answer 3

can this really be called "Discrimination"?

In many EU countries it would constitute unlawful discrimination because it directly translates to penalizing a person for deciding not to get vaccinated.

It is important to clarify that not everywhere is the concept of unlawful discrimination limited to categories such as the ones you list ("color of skin, sex, origin or religion"). For instance, the Constitutions of Germany (art. "Freiheit des Glaubens, des Gewissens [...] und weltanschaulichen Bekenntnises"), Spain (art. 14, "opinión"), and Switzerland (art. 8 "weltanschaulichen oder politischen Überzeugung") protect a person's convictions/beliefs or ideology besides religious ones.

Requiring a Covid-19 certificate is discriminatory insofar as it imposes on "anti-vaxxers" significant costs and vexations as a condition for access to services, locations, and arguably even to fundamental rights. The cost of each test is equivalent to paying recurrent fines for not getting vaccinated, yet that is not the only penalization. Adapting one's schedule to take the test (perhaps also for retrieving the results), enduring the physical unpleasantness that these invasive tests entail, risking the implications of getting a false positive, and being subjected the disproportionate constraints on asymptomatic positives are devised inconveniences with which the governments intentionally react to anti-vaxxers' holding of their position.

Mainstream arguments such as that about consequences of one's choices and preventing contagions can be debunked with a religion-based analogy:

Demanding a Covid certificate as a condition for visiting a location is equivalent to requiring most of non-Christians to convert to Christianity (i.e., get vaccinated) or alternatively get a costly police certificate (i.e., Covid test) that is valid for 48 to 72 hours so as to ensure that those people are not al-Qaeda terrorists (i.e., not be carriers of a contagious disease). It is mistaken for someone to allege that these vexations, constraints, and undue pressure are lawful on grounds that deciding not to convert to Christianity (i.e., not to get vaccinated) is the individuals' own choice.

The Constitutions admittedly give governments the authority to enact laws and adopt measures to fight or prevent the spread of severe diseases. Two examples are art. 118 and art. 74(1)19 of the Switzerland and Germany Constitution, respectively. However, reading into these provisions a "lawfulness" of the coercion, undue pressure, and barriers against anti-vaxxers is premature and disproportionate, more so on a matter that is plagued with gaps and inconsistencies among the mainstream media. In fact, item 7.3.1 of Resolution 2361 of the Parliamentary Assembly urges Member states to "ensure that citizens are informed that the vaccination is not mandatory and that no one is under political, social or other pressure to be vaccinated if they do not wish to do so" (emphasis added). See also item 7.3.2 ("ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated").