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Beyond Comparison: Sex and Discrimination

In Beyond Comparison: Sex and Discrimination Timothy Macklem addresses
foundational issues in the long-running debate in legal, political, and social
theory about the nature of gender discrimination. He takes the highly original
and controversial view that the heart of discrimination lies not in the un-
favourable comparisons with the treatment and opportunities that men enjoy but
rather in a denial of resources and opportunities that women need to lead suc-
cessful and meaningful lives as women. Therefore, to understand what women
need we must ¬rst understand what it is to be a woman.
By displaying an impressive command of the feminist literature as well as
intellectual rigour, this work promises to be a milestone in the debate about
gender equality and will interest students and professionals in the areas of legal
theory and gender studies.

Timothy Macklem is Lecturer in Law at King™s College London.
Cambridge Studies in Philosophy and Law

general editor: gerald postema
(university of north carolina, chapel hill)

advisory board
Jules Coleman (Yale Law School)
Antony Duff (University of Stirling)
David Lyons (Boston University)
Neil MacCormick (University of Edinburgh)
Stephen R. Munzer (U.C.L.A. Law School)
Phillip Pettit (Princeton University)
Joseph Raz (University of Oxford)
Jeremy Waldron (Columbia Law School)

Some other books in the series:
Stephen R. Munzer: A Theory of Property
R. G. Frey and Christopher W. Morris (eds.): Liability and Responsibility:
Essays in Law and Morals
Robert F. Schopp: Automatism, Insanity, and the Psychology of Criminal
Steven J. Burton: Judging in Good Faith
Jules Coleman: Risks and Wrongs
Suzanne Uniacke: Permissible Killing: The Self-Defense Justi¬cation of
Jules Coleman and Allan Buchanan (eds.): In Harm™s Way: Essays in Honor
of Joel Feinberg
Warren F. Schwartz (ed.): Justice in Immigration
John Fischer and Mark Ravizza: Responsibility and Control
R. A. Duff (ed.): Philosophy and the Criminal Law
Larry Alexander (ed.): Constitutionalism
R. Schopp: Justi¬cation Defenses and Just Convictions
Anthony Sebok: Legal Postivism in American Jurisprudence
William Edmundson: Three Anarchial Fallacies: An Essay on Political
Arthur Ripstein: Equality, Responsibility, and the Law
Heidi M. Hurd: Moral Combat
Steven J. Burton (ed.): “The Path of the Law” and Its In¬‚uence: The Legacy
of Oliver Wendell Holmes, Jr.
Jody S. Kraus and Steven D. Walt (eds.): The Jurisprudential Foundations of
Corporate and Commercial Law
Christopher Kutz: Complicity: Ethics and Law for a Collective Age
Peter Benson (ed.): The Theory of Contract Law: New Essays
Philip Soper: The Ethics of Deference
Beyond Comparison:
Sex and Discrimination

Timothy Macklem
King™s College London
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Cambridge University Press
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Published in the United States of America by Cambridge University Press, New York
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© Timothy Macklem 2003

This book is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.

First published in print format 2003

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For Gail Thorson

Acknowledgments page xi

1. The Issues 1
i. discrimination and equality 1
ii. discrimination and difference 4
iii. discrimination without comparison 10
iv. comparison and noncomparison 16
v. equality, difference, and the ending of roles 19
vi. what it means to lead a successful life 23
vii. what it means to be a woman 33
viii. radical inquiries 39
2. Equality 42
i. introduction 43
ii. difference and dominance 44
iii. implications 58
iv. conclusion 71
3. Difference 78
i. introduction 79
ii. the deconstruction of gender 82
iii. the renewal of gender 91
4. Reasons for Feminism 107
i. the value of diversity 107
ii. the character of disadvantage 109
iii. the role of sexual identity in a
successful life 113
5. The Value of Diversity 120
i. the nature of diversity 121
ii. the relevance of diversity 128
iii. the value of diversity 132
x contents

6. The Character of Disadvantage 135
i. introduction 135
ii. understanding disadvantage 140
iii. sexual disadvantage 153
iv. disadvantage, limitation, and inferiority 155
7. The Role of Sexual Identity in a Successful Life 157
i. the signi¬cance of limitations and inferiority 157
ii. the signi¬cance of misconceptions 167
iii. ascertaining misconceptions 184
8. Equality, Difference, and the Law 192
i. the importance of being understood 192
ii. where difference matters 197
iii. discrimination and the law 202

Index 209

Like so many before me, I owe a great deal to a great many, in ways that no
acknowledgment could ever recompense. What is more, I owe it in ways that
I cannot begin to credit properly. I can only offer my fullest thanks to Carol
Creighton, Elizabeth Goldberg, Heather Janack, G. V. La Forest, Grant Lamond,
David Lillico, David Paciocco, and Larry Taman.
This book has its roots, some direct, others now remote, in a doctoral the-
sis submitted at the University of Oxford. I am deeply grateful to the Attorney
General of Ontario for research leave, to the Commonwealth Scholarship Com-
mission in the United Kingdom and the British Council for fully supporting that
research, to Balliol College for a Kulkes Scholarship, and to Columbia Univer-
sity for an External Awards Fellowship. I also thank my examiners, Nicola Lacey
and Christopher McCrudden, for their helpful and constructive comments, and
above all my supervisor, Joseph Raz, who was and remains uniquely inspiring,
exacting, and supportive, both as a mentor and as a friend.
For support and particular guidance in making the book what it is now I thank
the series editor, Gerald Postema, the anonymous reviewers for Cambridge
University Press, and Stephanie Achard.
Finally, I particularly thank John Gardner for his friendship and support over
the years since we were students together, for reading all I have written, and
for offering acute criticism and ever sensible advice.
I cannot express what I owe to Gail Thorson, without whom nothing, and to
whom this book is dedicated.
The Issues

I. Discrimination and Equality
It is a hot summer™s day, ice-cream weather, sunbathing-in-the-park weather.
A woman walks down the street, bare-breasted. Asked to cover herself, she
refuses. As she sees it, indeed as she explains it to the police of¬cer, if a man
is entitled to appear in public naked to the waist, as he certainly is, she is
entitled to do the same. It would be discriminatory, she insists, for the law to
deny this and so treat her behaviour as indecent. Is she right? Does a woman™s
nakedness mean the same thing as a man™s? If not, should it? What is gained
by understanding discrimination in this way? What is lost?
The complexity and signi¬cance of the problem become clearer when it is
looked at from the opposite perspective. Suppose it is true that a woman, like
a man, is entitled to appear in public naked to the waist, in hot weather at least
(as in fact the courts decided).1 What makes this so? The answer has large
implications for our understanding of both sexual difference and the nature of
value. Whatever may have been claimed by the topless pedestrian in question,
it cannot be the case that there are meaningful differences between the sexes,
yet that women are entitled to do whatever men are entitled to do (and vice
versa), without regard to those differences. That would be to suggest that sexual
difference is at once, in the same settings and for the same purposes, both
meaningful and not meaningful, relevant and irrelevant. If men and women
are to enjoy the same entitlements, despite the apparent differences between
them, either our understanding of sexual difference or our understanding of
value must give way. It is not possible for us, as individuals or as a society, to
maintain a commitment both to the idea that people are not to be distinguished
and to recognizing the characteristics and values that distinguish them.
If a woman is as free as a man to go topless in hot weather, it must be be-
cause, contrary to what has been conventionally assumed, there is no difference

1 R. v. Jacob, 31 O.R. (3d) 350; 142 D.L.R. (4th) 411 (C.A., 1996).
2 the issues

between the sexes that could affect their entitlement to appear in public naked
to the waist. There are a number of reasons why this might be so.2 It might
be because, as a general matter, the differences that genuinely distinguish the
sexes, whatever they may be, should not be allowed to make a difference to
men™s and women™s options in life, that is, to men™s and women™s access to the
valuable pursuits that make it possible to ¬‚ourish in life. Neither women nor men
should suffer comparative disadvantage in the project of their lives on account
of their sex. If that is true, however, then a policy of nondiscrimination is unfor-
tunately bound to follow one of two paths, which require us to treat either our
sexual identity3 or the values that make our lives worth living as entirely plastic
and insubstantial. Either we must reshape men and women, to ensure that they
are equal in the face of human values, by eliminating any difference between
the sexes that is relevant to the assessment of value (the path of androgyny), or
we must reshape human values, to ensure that men and women are never dis-
tinguished by them (the path of value relativism). If men™s success in any ¬eld
of endeavour is greater than women™s (or vice versa), we must either change
the distribution of the qualities that lead to success (fantastic as that may seem),
diminishing their presence in the more successful sex, increasing it in the less
successful, or alter our sense of what constitutes a successful endeavour, by
eliminating from consideration those criteria of success that one sex is able to
meet more (or less) readily than the other.
The ¬rst of these explanations (or courses of action) dissolves our respect
for, indeed the very existence of, sexual difference; the second does the same
for value to the extent that value is engaged by sexual difference. Neither seems
terribly plausible. Quite apart from the fact (as I take it to be) that neither sexual
identity nor human value as we know it is entirely plastic and so susceptible to
our will (a fact that might, after all, be merely a moral misfortune), it is hard to
believe that eliminating sex discrimination requires us to eliminate either sexual
difference or all that makes that difference matter. Indeed the suggestion that it
does so comes close to a contradiction. It is in principle possible to eliminate

2 For further reasons, see the next two sections.
3 In what follows, I use the term “sexual identity” to refer to the concept that is sometimes called sex
and sometimes called gender. I have tried to avoid speaking of sex or gender, where possible, to
avoid suggesting that I am taking a position in the familiar nature/nurture debate, which I regard
as misguided, for reasons set out below. Yet because the term “sexual identity” is potentially
confusing, it might be helpful at the outset to make three things clear about the way I have used
it. First, in using the word “sexual”, as part of the term “sexual identity”, I am referring to the
distinction between the sexes, rather than the idea of sexuality. It is women and men that I have in
mind, rather than the many ways in which men and women express themselves sexually. Second,
in using the word “identity”, as part of the term “sexual identity”, I am referring to the set of
qualities and characteristics that is de¬nitive of the distinction between women and men, rather
than to the qualities that men and women identify with, which might include the qualities of the

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