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relationships. It is critical to the success of some women™s lives, not because a
200 equality, difference, and the law

capacity demands that we act upon it, so that women should bear children simply
because they can, but because for some women acting upon that capacity is a
critical element in the success of their lives. Yet the capacity to bear children is a
capacity that we may mistake and so fail to recognize in the forms and practices
of our culture, not because we doubt that it is a genuine aspect of what it means
to be a woman, but because we see only its necessity and neglect its value, or
more accurately, because we see its value only in terms of the contribution that it
makes to our survival and so neglect other aspects of its value, those that I have
just referred to, and because we assume further, perhaps correctly, that enough
women will bear children to ensure the survival of the species whether or not
we take any steps to accommodate childbearing in the forms and practices of
our culture.
As far as childbearing is concerned, then, we may mistake what it means
to be a woman in two ways. On the one hand, we may hold a conception of
women as equal to and so no different from men in that we take the success
of their lives to be entirely dependent upon careers in the job market and not
upon childbearing, and so may overlook their difference in this respect and
the role it plays in the success of some women™s lives. On the other hand,
we may hold a conception of women as people for whom success in life is
entirely dependent upon motherhood, a role whose value we take to lie in the
contribution it makes to human survival, in which we see women as largely self-
suf¬cient and in which we assume that poverty and limitation of horizons are
not disabilities. That conception recognizes sexual difference but mistakes its
character. In my view, we subscribe to both misconceptions and see individual
women as properly conforming to one or the other, so that we regard women
who try to combine parenting and career as misguidedly attempting to live up
to both when they should choose one or the other.
In fact, contrary to the ¬rst conception, childbearing is critical to the success
of some women™s lives; and contrary to the second conception, the women
for whom that is true need many forms of support if childbearing is to do for
them what it should, ranging from maternity leave and maternity allowances, to
prenatal services, and access to midwives and other professional childbearing
and maternal support systems. More important, the bearing and subsequent
rearing of children is not today, if it ever was, the whole story of a successful
life, so that women need to be able to integrate parenting with participation
in the job market. What is needed, then, is a conception of women as people
for whom success in life will typically demand the integration of family and
career rather than a choice between the two, and so will demand access to
resources such as daycare, part-time work, ¬‚exible hours, work from home,
interrupted or abbreviated careers, and so on. In some respects, those in which
parenting can be performed by either sex, that conception will be as true of men
as it is of women, and so will be a conception of sexual equality. This will be
equality on a new footing, however, de¬ned by the common needs of women
II. Where Difference Matters 201

and men, not by the lives of men. In other respects, those in which biology or
culture make the capacity or the inclination to perform certain functions either
exclusive to women or more prevalent among them, that conception will be
true of women only. This will be difference on a new footing, not the footing
de¬ned by the prevailing conception of motherhood. The establishment of these
conceptions of sexual identity, and the corresponding elimination of our present
misconceptions, will not matter to all women, of course, but will certainly matter
to a great many of them, as many as bear children, which is likely to be most
women, for if the human race is to survive, women must bear, on average, two
children each.
However, the capacity to bear children is as likely to contribute to the failure
of a woman™s life as to its success. Unwanted pregnancies disable women™s
lives, whether they are dedicated to careers in the job market, and so do not
involve plans for childbearing at all, or are dedicated, at least in part, to rearing
existing children and so to integrating parenting with a career. In other words,
some women never need to bear children; others need to bear children at a time
of their choosing or no more than the children they already have; all are at risk
of unwanted pregnancies, therefore, which may have a critical impact on the
success of their lives. Women need to be able to protect themselves against such
pregnancies, by whatever means are appropriate to the risk at stake, including
contraception, sterilization, and abortion.
To turn to the question of culturally created differences, it is often alleged that
women are unusually concerned for others, unusually sensitive to the nuances of
human relationships, and unusually skilled at communication, whether because
of their long history of bearing primary responsibility for the raising of children
or for some other reason. It is not suggested that these capacities are unique to
women, but it is suggested that they are more prevalent among women. These
are clearly valuable capacities, relevant to this and any other culture, and critical
to the success of many women™s lives. Yet, as in the case of the capacity to bear
children, they are capacities that we may mistake, ¬rst, by assuming that they
have the same incidence in women as in men, and second, by assuming that
they have the same character in women as they do in men.
Such misconceptions may cause women disadvantage. If the capacity for
concern is particularly prevalent among women, and if women™s ambitions are
consistent with their capacity in this respect, as they may be, then we should
expect women to predominate, and not merely to be equal participants, in ¬elds
of human endeavour in which capacity for concern is at a premium. In other
words, women™s equal presence in such ¬elds, and the conception of sexual
identity that would sustain it, may be as discriminatory towards women as their
minority presence in those ¬elds in which their ambitions and capacities are
no different from those of men. This is a possibility that we need to take into
account in the design of any programme of af¬rmative action that sets targets
for the presence of women in ¬elds in which they are now a minority, and in
202 equality, difference, and the law

the evaluation of any charge of indirect discrimination against men in ¬elds in
which women are now a majority.6
We also need to take into account the possibility that the character of women™s
concern is not the same as that of men™s, so that women care about different
things and in different ways than men, as well as the possibility that women™s
concern is different from men™s in ways other than we have taken it to be, so
that it is not con¬ned to rearing children or to nursing, to take but two examples.
If we have mistaken the character of women™s concern, in ways that are critical
to the success of at least some women™s lives, then again our conception of what
it means to be a woman will need to be amended if women are to lead successful
lives. At the same time, we need to recognize that many women display the
same kind of concern as men, so that the success of their lives depends upon
not being stereotyped by a conception of sexual identity that takes all women
to be distinctively concerned and committed to lives that re¬‚ect that fact.
In conclusion, and as I have already said, it is in settings like these, where
sensitivity to the existence and character of sexual difference plays a critical role
in the success of women™s lives, that we need to understand sexual difference and
incorporate it in the practices of our culture. This is where difference matters.


III. Discrimination and the Law
This study is an inquiry into the meaning of sex discrimination as a species of
wrongdoing that impairs the ability of women to lead successful lives, through
the propagation of a false image of their character and qualities. It is not an
inquiry into the meaning of sex discrimination as a legal wrong. Such an inquiry
would tell us something, perhaps a great deal, about the shape of the law in
this respect. It would tell us what the law de¬nes as sex discrimination, but
it would not tell us anything about the law™s justi¬cation, or the law™s ability
to address the problem actually confronted by women. If for these reasons
antidiscrimination law cannot serve as the starting point for an inquiry into the
meaning of sex discrimination, it is nevertheless bound to be the principal focus
of any conclusions to that inquiry, for one of our main reasons for wanting to
know what sex discrimination means is that we want to know what should be
done about it, through the law or otherwise, and correspondingly want to know
whether what we now do about it is adequate or even justi¬able. While I cannot
say a great deal about the extent to which existing laws on sex discrimination

6 It is also true that men have a greater capacity for certain activities, such as weightlifting, than
women. However, men™s and women™s distinctive capacities do not logically compel one another.
It does not follow from the fact that women have a heightened capacity for communication that
they have a diminished capacity for mathematics, as is sometimes assumed, for the two capacities
are not correlative. It is entirely possible that women are as good at engineering as men and better
at English. What women cannot be, at least in the same context, is both more concerned and no
more concerned than men.
III. Discrimination and the Law 203

are justi¬ed, for to do so would be well beyond the scope of a work whose
focus is primarily on determining what sex discrimination means and what
makes it wrong, it is only right that I at least suggest what I take to be the
implications of the ideas advanced here for the status of the present law against
sex discrimination.
The three principal devices currently employed by the law in order to rem-
edy sex discrimination, in somewhat different form in different jurisdictions,
namely, the prohibitions against direct and indirect discrimination, and the
sanctioning of af¬rmative action policies, are typically explained in terms of
equality.7 It is said that women and men should not be distinguished from one
another, because they should be treated as one another™s equals: hence the pro-
hibition on direct discrimination. It is said that women and men should not
be asked to meet requirements whose burden falls disproportionately and so
unequally upon one sex: hence the prohibition on indirect discrimination. It is
said that government should seek to ensure that the presence of women in any
particular arena is equal to the presence of men in that arena (although not vice
versa): hence the sanctioning of af¬rmative action policies.
The justi¬cation of these provisions in terms of equality gives rise to cer-
tain concerns that I am not able to examine here, despite their importance, for
they have no bearing on the question of the meaning of sex discrimination. For
example, if the various legal strategies designed to combat sex discrimination
are explained and justi¬ed in terms of a supposed principle of equality, then
it is an obvious question why that principle attaches itself only to sex, race,
age, ethnicity, religion, and the other distinctions addressed by antidiscrimi-
nation law, and not to the innumerable further distinctions that are employed
to prefer some and denigrate others. If inequality is inherently objectionable,
why do we treat it as objectionable only when it affects certain people in cer-
tain dimensions of their existence? Why is it that the inequalities created by
a job description become objectionable only when they affect women or men,
for example, whether directly or indirectly, and not otherwise? The inequal-
ity in question is no greater, is no more unequal, because it happens to res-
onate with sexual identity rather than with some other aspect of the human
condition.
That being the case, there must be some further signi¬cance to sexual iden-
tity, and to the other identities protected by antidiscrimination legislation, that
warrants their special protection. The answer sometimes given is that the pro-
hibited distinctions are irrelevant, while the permitted distinctions are not. Yet
this claims both too much and too little, for in fact the prohibited distinctions are


7 These provisions are given somewhat different names in different jurisdictions. Direct discrimina-
tion is also known as intentional discrimination; indirect discrimination is also known as disparate
impact or adverse effect discrimination; af¬rmative action (to the extent that it is permitted by
the law) is also known as employment equity.
204 equality, difference, and the law

often relevant while the permitted distinctions are often not relevant.8 Lacking
a good answer to questions such as these, the law ¬nds itself in the position of
conferring its protection upon what appears to be an elite of the disadvantaged,
´
and so to be in the position of unequally bene¬ting an arbitrarily determined
selection of the unequally treated.9
These are dif¬cult questions that I cannot and need not address in this study.
My concern here is with the present condition of women and with the ability
or inability of equality to remedy that condition. There may be reasons to
doubt the value of equality that are unrelated to the condition of women, but
the reason that matters here is that equality does not and cannot explain the
meaning of sex discrimination, for the reasons given above. Nevertheless, even
if lack of equality is not a good explanation of sex discrimination, as I have
contended, equality may nevertheless be a good strategy for the ending of that
discrimination in certain circumstances, provided that the means is not mistaken
for the end. Is this true of present antidiscrimination legislation? Is its egalitarian
character justi¬able in strategic terms, as a device for ending the wrong of sex
discrimination, a wrong that is properly understood in nonegalitarian terms?
Is its egalitarianism no more than a means to some sounder end? Or is its
egalitarianism its true end?
Laws against direct discrimination, which prohibit any reference to sex, are
sometimes restricted to certain settings, such as the provision of employment,
services, or accommodation, and are sometimes unrestricted, as when they take
the form of a constitutional provision, for example. Where they are restricted
to certain settings they can be justi¬ed by the contention that there is in fact
no difference between the sexes that has any relevance in those settings. In
other words, they can be justi¬ed by the contention that women and men are in
fact equal in those settings. This contention would not by any means be easy to
establish. It is far from clear that women and men do not differ in any way that is
relevant to the provision of services, for example. Nor is it clear that they do not
differ in any way that is relevant to employment or accommodation, for there
may be good reason to choose women to provide accommodation and services
to other women, as in a battered women™s refuge, or a rape crisis centre, or any

8 In the case of indirect discrimination, where a distinction is regarded as discriminatory not
because it refers to women and men but because it has an adverse impact on one sex or the other,
it is clear that we are concerned with irrelevant criteria because they adversely affect women
or men, not with women and men because they are adversely affected by irrelevant criteria. We
do not prohibit the irrational consideration of certain personal qualities in a job description, for
example, unless the quality in question is more common in one sex than the other. Our objection
is not to irrational criteria, therefore, but to criteria that favour one sex over the other.
9 This is not a dif¬culty in the account I have offered, which claims that there is a prevailing
misconception of what it means to be a woman; that this misconception prevents the success of
many women™s lives; and that any misconception that has such a consequence must be remedied.
However, only certain misconceptions, including those about women and others now addressed
by antidiscrimination law, actually have that consequence.
III. Discrimination and the Law 205

other setting where questions of sexual solidarity are an issue. And where laws
against direct discrimination are unrestricted, as in the constitutional setting, the
contention that the difference between the sexes is irrelevant seems altogether
impossible to establish, for it amounts to a contention that there is in fact no
meaningful difference of any kind between the sexes, which is plainly untrue.10
Laws against direct discrimination can also be justi¬ed by the contention
that the prevailing conception of sexual identity is so tainted that it is best to
abandon it and focus instead on its underlying elements, namely, the qualities
and characteristics that genuinely distinguish women and men. It will be clear
from all I have said that I share the view that the present conception of what
it means to be a woman is deeply tainted, to a degree that damages women™s
prospects of leading a successful life. Yet the question remains whether that
conception should be reformed or whether it should be abandoned in favour
of its underlying elements, so that we no longer conduct ourselves as women
or men but as human beings, and so think of the capacity to bear children as
we think of the capacity to write novels, not as a capacity of women but as a
capacity of human beings generally. In my view the answer to that question
depends upon two further issues. First, is sexual identity more than the sum
of its parts; that is, is there anything more to being a woman than possessing
the qualities that distinguish women from men, as there would be if there was
a synthesis among the qualities that comprise sexual difference in which the
meaning of each was enhanced by its relation to the others? Second, does any
woman need access to her identity as a woman in this sense in order to lead
a successful life? If the answer to both of these questions is yes, then sexual
identity must be reformed, not abandoned. If and only if the answer to either is
no, is abandonment of sexual identity a valid strategy.
Laws against indirect discrimination, which prohibit any requirement or
condition whose burden falls disproportionately on one sex or the other, are, it
seems to me, justi¬able only in terms of an egalitarian end, and so must stand or
fall on the legitimacy of such ends. They do nothing to redress misconceptions
of what it means to be a woman. On the contrary, their application is restricted
to settings where there is no direct reference to sex (and hence no reference
to any conception of what it means to be a woman), and where the indirect
reference that they seek to address is established by proof of a real connection
between the impugned requirement and what it genuinely means to be a woman.
Distinctions are prohibited, therefore, not because they are false but because
they are true. Any recognition of the difference between the sexes in the values

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