The data is known but it is important to remember them: around 18% of Spaniards are over 65 years old, and the forecast is that in 2030 this percentage will reach 30%. In other words, Spain is aging. In parallel, the problems that affect this part of the population are growing, including discrimination in issues such as health care, work life or sexual intimacy. Which raises an unfinished debate; the one referring to the rights of these people.
"The reality is that today, from a formal point of view, older people are in the same situation as others: they have the same rights and cannot be discriminated against on the basis of age." This is said by Fernando Flores, professor of Constitutional Law at the UV and director of the Human Rights Institute at the UV. "And this is where we ask ourselves if, beyond adequate pensions and economic sufficiency – which are important –, there is also a problem (that is, something more than anecdotal or minority events) of discrimination and violation of the rights of older" he adds.
Fernando Flores assesses that there is a problem because the reality is that older people "constitute a vulnerable group that suffers numerous types of discrimination and endures inefficiency or directly the violation of some of their fundamental rights." And he adds that when we talk about discrimination we are saying that there are many situations in which the elderly are treated differently than the rest of the people.
Institutions such as the Ombudsman and the Prosecutor's Office, or organizations such as the HelpAge Foundation or Amnesty International (more recently in the case of nursing homes during the pandemic), point out many repeated cases of violation of the rights of older people.
To address the reality of these Rights of the elderly, the UV Human Rights Institute has scheduled a conference between today and tomorrow to address this reality and which will be inaugurated by the Ombudsman, Ángel Gabilondo. The congress aims to be the first in Spain to address the phenomenon of aging and the rights of the elderly from an essentially legal perspective.
In this inaugural congress, a first panoramic approach is proposed from Public Law (Philosophy of Law, Constitutional, International, Criminal, Labor, Administrative, Procedural) and Private Law (Civil, Commercial, International Law), plus the institutional perspective and of legislative policy. The idea is to bring together all branches of the legal world to present what are, in their field and currently, the most relevant issues to be addressed regarding older people. And, logically, the discrimination they suffer.
The causes of this discrimination are, mainly, stereotypes and prejudices; what is called ageism. "In all forms of discrimination there is a common element that always corresponds to a social prejudice and that crystallizes in pejorative treatment or in a status of undervaluation of people, in our case of the elderly," says Flores. What happens with age discrimination is that it has some peculiarities that make it different from other causes.
From the outset, "it is not endowed with the burden of opprobrium and moral condemnation that characterizes, for example, discrimination based on sex or race, although the severity of the stereotypes and discrimination to which it is subjected is no less than in other cases." cases". These are effects enhanced by the invisibility of the problem in many cases.
It concludes that older people are in a situation of substantive inequality with respect to the enjoyment of fundamental rights and are vulnerable to a greater extent than other groups, which is why they require special attention. "If there is a real problem, there is also a regulatory problem: the norm is simply ineffective," she points out.
He warns that "we need more and better data. This will give us a better understanding of what does not work, and better focus the regulatory proposals (domestic and international) and public policies." As situations of inequality or abuse become known and analyzed, "the State must intervene to remedy them, incorporating positive discrimination measures if necessary."
For the rest, it calls for serious attention to the effectiveness of the fundamental rights of the elderly; it requires providing these with a benefit content, not necessarily (although also) economic, but with public policies aimed at promoting and guaranteeing the realization of those .
The separation between civil, political, economic, social and cultural rights, he adds, is unreal (and ideological), only a unitary conception of them guarantees their effectiveness. "The problem is that society is aging better than the Welfare State. But without the Social State there will be no rights for the elderly. There will be no rights for the most vulnerable groups."
We cannot help but demand from administrations and legal operators a less formalistic and more substantive approach to the rights of the elderly, an approach that at least includes an analysis of the prejudices and stereotypes that sometimes accompany behaviors that discriminate against them.
Despite the fact that a (timid) jurisprudence of the Constitutional Court has pointed this out, and that the (firmer) jurisprudence of the ECtHR has required it time and again, the judicial gaze (and that of other institutions) does not fully assume the relevant existence of specific circumstances of a vulnerable group, that is, it does not incorporate what some today call “age perspective.”