The governance framework outlines key elements that advance these objectives, specifically highlighting protections against discrimination, including on the basis of sex as well as other grounds for discrimination prohibted in international human rights law, such as race, ethnicity, religion, and disability. It is important to also consider the rights of non-citizens, and ensure that those without proof of legal identity and nationality have the means of verifying who they are. This is particularly important in the context of stateless persons, and this element includes sub-elements intended to evaluate the role of the digital legal identity system in preventing and reducing statelessness. The equality and non-discrimination element includes the following sub-elements: protections against discrimination, and the rights of non-citizens.
Protections against discrimination
Legal protections against discrimination generally
What protections are there in the constitution or other laws against discrimination and abuse of rights? Are there any exclusions (e.g., customary /religious law)?
If a general constitutional or statutory framework for non-discrimination is in place, it provides a basis for users to challenge discrimination in the operation of a digital legal ID system.
The institution managing the digital legal ID system clearly states (online, and in its offices) the laws and institutions citizens can seek protection within if their rights are infringed and they are discriminated against - and the procedures to do so (see heading on accountability and the rule of law). The DID laws do not discriminate across genders, race, ethnicity, etc., treating them all equally. There are no liabilities to enrol or access services linked to DID because of gender.
The framework of international human rights treaties & interpretation by treaty bodies.See especially UN Committee on Economic, Social and Cultural Rights. ‘General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (Article 2, Para. 2)’. E/C.12/GC/20. Geneva: United Nations, 2 July 2009: https://digitallibrary.un.org/record/659980?ln=en
SDG Target 16.b: Promote and enforce non-discriminatory laws and policies for sustainable development. The World Bank Group 'Principles on Identification for Sustainable Development' (2021): https://documents1.worldbank.org/curated/en/213581486378184357/pdf/Principles-on-Identification-for-Sustainable-Development-Toward-the-Digital-Age.pdf
IOM Institutional Strategy on Legal Identity, section 4: Key principles: https://publications.iom.int/books/iom-institutional-strategy-legal-identity
Do the substantive law and procedures for implementation of the digital legal ID treat women and men equally? (e.g., women do not need to ask their male head of household to obtain ID?).
If there are measures in place, digital legal ID systems can mitigate existing patterns of gender and identity based discrimination.
The laws establishing the digital legal ID enable enrolment without discrimination based on sex or gender, and provide a procedures for those whose gender identity has changed to be able to adjust their records.
Convention on the Elimination of All Forms of Discrimination Against WomenThe World Bank Group ID4D 'Achieving Universal Access to ID: Gender-based Legal Barriers Against Women and Good Practice Reforms' (2019): https://documents1.worldbank.org/curated/en/606011569301719515/pdf/Achieving-Universal-Access-to-ID-Gender-based-Legal-Barriers-Against-Women-and-Good-Practice-Reforms.pdf
The World Bank 'The identification for development (ID4D) agenda: its potential for empowering women and girls' (2015): http://documents.worldbank.org/curated/en/859071468190776482/The-identification-for-development-ID4D-agenda-its-potential-for-empowering-women-and-girls-background-paper
The World Bank group ID4D 'Addressing Gender Gap in ID': https://id4d.worldbank.org/sites/id4d/files/ID4D-Gender-and-Legal-Barriers-Summary-EN.pdf
Women in Identity Code of Conduct: https://www.womeninidentity.org/cpages/code-of-conduct
Are there measures in place to ensure that people are not excluded from registration based on sex or gender identity (e.g., LGBTI - provisions for change of name, identity; those checking identity generally only have access to current identity elements).
Race, ethnicity, religion etc.
Do the substantive law and procedures for implementation of the digital legal ID treat members of any religion, ethnic group etc. equally?
If the law governing digital legal identity ID elements to mitigate identity based discrimination, it is less likely to amplify discrimination.
The same evidentiary requirements are established for any person entitled to enrol in the digital legal ID system, without additional requirements being placed on members of certain racial, ethnic, or religious groups.
Committee on the Elimination of Racial Discrimination UNHCR Stateless Minorities: https://www.unhcr.org/ibelong/stateless-minorities
UNHCR Background note on discrimination and statelessness: https://www.refworld.org/pdfid/616fda104.pdf
Are there legal provisions and practical arrangements that accommodate people with different forms of disability?
When the international standard to include people with disabilities or other challenges is met, it ensures their inclusion in digital ID systems.
The legislation establishing the digital legal ID system envisages special measures to ensure that people with disabilities of different types can enrol in the system and use their digital legal ID.
Convention on the Rights of Persons with Disabilities: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html
UN Committee on the Rights of Persons with Disabilities. ‘General Comment No. 1—Article 12 : Equal Recognition before the Law’. CRPD/C/GC/1. Geneva: United Nations, 11 April 2014: https://daccess-ods.un.org/tmp/4625032.24611282.html
Are any other categories of person affected by discrimination in relation to the digital ID?
In a large number of countries, lack of legal identity especially affects poor people living in urban slums or remote rural regions; other affected categories could be, for example, children of sex workers.
A human rights impact assessment considers such excluded populations and specific outreach attempts are made to engage them.
International Covenant on Civil and Political RightsUN OHCHR, 'The Guiding Principles on Extreme Poverty and Human Rights', paras. 69-70 on Right to recognition as a person before the law: https://www.ohchr.org/en/special-procedures/sr-poverty/guiding-principles-extreme-poverty-and-human-rights
UN Committee on the Rights of the Child. ‘General Comment No. 21: Children in Street Situations’. CRC/C/GC/21. 20 June 2017, para. 41 on Birth Registration & Identity: https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-21-2017-children-street
Rights of non-citizens
Access to proof of identity for all
How are existing systems for refugee status and stateless person determination integrated into the digital legal ID?
If a person is officially recognised as a refugee or stateless, such persons should have access to digital legal ID in the same format as citizens so they can access rights and entitlements.
The digital legal ID law should adhere to UNHCR standards laid out for the identification and protection of refugees and stateless persons.
UN Convention relating to the Status of Refugees 1951: https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees
UN Convention relating to the Status of Stateless Persons 1954: https://www.unhcr.org/ibelong/wp-content/uploads/1954-Convention-relating-to-the-Status-of-Stateless-Persons_ENG.pdf
UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection: https://www.unhcr.org/sites/default/files/legacy-pdf/5ddfcdc47.pdf
Refugee Protection: A Guide to International Refugee Law (Handbook for Parliamentarians): https://www.unhcr.org/media/refugee-protection-guide-international-refugee-law-handbook-parliamentarians
UNHCR Handbook on Protection of Stateless Persons: https://www.unhcr.org/dach/wp-content/uploads/sites/27/2017/04/CH-UNHCR_Handbook-on-Protection-of-Stateless-Persons.pdf
Are there requirements or eligibility of other non-citizens to enrol in the digital legal ID system? If so, are these established in law and accessible in practice?
If such requirements are not well known, or hard to access, non-citizens may be excluded from access to services or rights to which they would otherwise be entitled.
If there is a requirement for non-citizens to register with the national authorities, or such registration provides access to additional benefits, this requirement or eligibility should be widely communicated to those likely to be within this category.
Committee on the Elimination of Racial Discrimination, Committee General Recommendation XXX on rights of non-citizens: https://www.refworld.org/docid/45139e084.html
How can those without access to the digital legal ID under consideration prove their identity for the purposes of recognition as a person before the law and enabling them to access other rights?
Provisions to ensure that those who cannot access any particular type of ID can prove ID for basic human rights purposes (e.g., family membership, equality before the law, access to primary education, immunisations, and emergency health care at minimum).
Alternative forms of proof of ID are accepted, including witness testimony where this is appropriate (see also legal framework, on probative value of ID).
International Covenant on Civil and Political Rights Art 16 Everyone shall have the right to recognition everywhere as a person before the law: https://www.ohchr.org/sites/default/files/ccpr.pdf
UN OHCHR ‘Birth Registration and the Right of Everyone to Recognition Everywhere as a Person before the Law’. Geneva: United Nations, 17 June 2014. http://www.ohchr.org/Documents/Issues/Children/BirthRegistration/ReportBirthRegistration.pdf
Are all persons issued the digital legal ID guaranteed access to basic human rights?
Most human rights are not restricted to citizens; and those with a non-citizen ID should not be excluded from the state's obligation to respect, protect and fulfil human rights - including equality before the law, access to primary education and health care - whatever the legal status indicated by their ID (where relevant).
The minimum standard of human rights established by international human rights treaties is guaranteed for all.
International Covenant on Civil and Political Rights: https://www.ohchr.org/sites/default/files/ccpr.pdf
International Covenant on Economic, Social and Cultural Right: https://www.ohchr.org/sites/default/files/cescr.pdf
Prevention and reduction of statelessness
If the digital legal ID is proof of legal status in the country, are the basic protections against statelessness in place in national law, notably (a) presumption of nationality for children of unknown parents found in the territory; (b) granting of nationality to children born in the country who cannot acquire the nationality of a parent (because the parent is stateless, of unknown nationality, or cannot transmit nationality to a child under the laws of the country of origin of the parent)?
Statelessness is a major cause of exclusion and poverty.
National legislation establishing the rules for acquisition of nationality establishes the basic protections against statelessness required by international law, and these are where relevant, also reflected in civil registration and family law.
Convention on the Prevention and Reduction of Statelessness 1961: https://www.unhcr.org/ibelong/wp-content/uploads/1961-Convention-on-the-reduction-of-Statelessness_ENG.pdf
International Covenant on Civil and Political Rights, Art 24(3): https://www.ohchr.org/sites/default/files/ccpr.pdf
Convention on Rights of the Child, Art. 7: https://www.ohchr.org/sites/default/files/crc.pdf
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Art. 29: https://www.ohchr.org/sites/default/files/cmw.pdf
Convention on the Rights of Persons with Disabilities, Art.18: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-with-disabilities-2.html
UNHCR Guidelines on Statelessness No. 4 Ensuring Every Child's Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21 December 2012, HCR/GS/12/04: https://www.refworld.org/docid/50d460c72.html
UNHCR Gender discrimination & childhood statelessness: https://www.unhcr.org/ibelong/gender-discrimination-and-stateless-children