Discrimination that Requires a Remedy: The Case of Mothers of Children with Disabilities

International human rights law devotes particular attention to the protection of vulnerable groups owing to their special needs and distinctive challenges which should be adequately considered. Building upon this premise and stressing the importance of gender approach, the Article describes particular vulnerabilities that mothers of children with disabilities face and explains how addressing them remains contingent upon safeguarding, in particular, the right to the highest attainable standard of health, the right to social security, the right to an adequate standard of living and the right to family life. Through the analysis of the responsibility for the omission in international law, as well as binding positive obligations in the area of economic, social and cultural rights, it identifies states’ duty to remedy discrimination that mothers of children with disabilities experience. To this end, the Article argues that these mothers suffer from associative discrimination on the basis of disability and indirect discrimination on the basis of sex. It relies on the definition of discrimination provided by the Committee on Economic, Social and Cultural Rights, according to which the discriminatory effect, even in the absence of intent, suffices to establish the existence of discrimination if other conditions—distinction, exclusion, restriction or preference or other differential treatment nullifying or impairing the recognition, enjoyment or exercise of rights on equal footing—are fulfilled. In doing so, it critically discusses the relevant jurisprudence on discrimination of vulnerable groups of the European Court of Human Rights, the European Court of Justice, the Inter‑American Court of Human Rights, and treaty-monitoring bodies by deducing the underlying principles and applying them to the protection of these mothers. As a remedy, the Article proposes the introduction of “special measures”—instruments already recognized in international legal treaties—explaining that in cases concerning disability, unlike those involving race, measures should not be necessarily described as “temporary.”