<<

. 36
( 37 .)



>>


10 Constitutional laws typically contain a saving provision, implicit or explicit, which allows sex
discrimination to be justi¬ed in certain circumstances. However, such a provision applies only
where there has been a prior ¬nding of sex discrimination, and it is that ¬nding that I am
questioning. In other words, the saving provision cannot be used as a means of preserving
relevant distinctions between the sexes, for on this account of discrimination it applies only
where the distinction has already been determined to be discriminatory and so irrelevant.
206 equality, difference, and the law

and practices of our culture is prohibited, in whatever settings the law applies to,
be those settings restricted (as in the case of ordinary legislation) or unrestricted
(as in the case of constitutional law).11 Yet to prohibit the recognition of sexual
difference in this way is to promote a misconception of what it means to be a
woman or a man, a misconception that presents women and men as no different
from one another in any way that matters, in other words, in any way that is
relevant to value, a conclusion as to sexual identity that is, as I have already
observed, highly implausible.12 That misconception is promoted by ensuring
that as far as possible the values and practices of our culture contain nothing
that is responsive to the distinctive qualities of women or men. That is bound
to damage a woman™s prospects of leading a successful life if, as is often the
case, she depends upon the recognition of her distinctive qualities in order to
¬‚ourish.
On the other hand, and perhaps surprisingly, laws permitting or requiring
af¬rmative action, which seek to ensure the presence of women in certain ¬elds
of endeavour, a presence that is generally but not always in proportion to their
presence in the population at large, can in a good many cases be justi¬ed without
relying upon an egalitarian end. The reason is that af¬rmative action can be a
highly effective means of demolishing misconceptions of what it means to be
a woman, because it insists that all preconceptions of what it means to be
a woman or a man be set aside, and that women be introduced into certain
¬elds of endeavour at least in part because they are women. In these ¬elds
of endeavour their presence can serve as a role model for the aspirations of
other women, who genuinely possess the qualities necessary to that ¬eld of
endeavour but who would not have known that, or knowing that would not have
pursued their knowledge, in the absence of the role model. Af¬rmative action


11 Indirect discrimination can be defended by showing that the requirement or condition constitutes
a bona ¬de occupational requirement. However, recent trends in antidiscrimination law make
clear, ¬rst, that the defence exists only where it can be shown that the requirement or condition
is reasonably necessary, meaning that it could not be abandoned without undue hardship, and
second, that the defence is simply a defence to what has already been established to be a case
of discrimination, rather than a rebuttal of that case. In short, it is discriminatory to impose a
requirement or condition that has an adverse impact upon either sex. Whoever imposes such
a requirement must bear its cost if he or she can do so without undue hardship. Otherwise,
the cost of discrimination must be borne by its victim. See, for example, British Columbia
(Public Service Employee Relations Commission) v. BCGEU, [1999] 3 S.C.R. 3, especially at 21
(“the standard itself is discriminatory precisely because it treats some individuals differently from
others, on the basis of a prohibited ground”) and at 35“38 (on undue hardship).
It is not the labelling of the adverse effect as discriminatory that is signi¬cant here. What
matters is that the justi¬cation of an adverse effect is dependent upon the absence of any
reasonable alternative to that effect. The consequence is that all values that re¬‚ect sex are to
be eliminated, if at all possible. This is as true of the moderate interpretations of laws against
indirect discrimination as it is of their newer, more radical counterparts. Laws against indirect
discrimination may not eliminate sexual difference, therefore, but they make it irrelevant, by
ensuring that our values and practices do not register that difference, if at all possible.
12 If there were no real differences between the sexes, no adverse impact could be found.
III. Discrimination and the Law 207

programmes are objectionable, therefore, only where they disregard women™s
true qualities (as is rarely, if ever, the case), or where the goal or target that they
set for themselves is fundamentally egalitarian, so that they commit themselves
to ensuring the equal representation of women in certain ¬elds of endeavour,
and to that end, to the removal of any requirements or conditions that would
have an unequal effect upon the presence of women there.
It is often contended that af¬rmative action programmes are objectionable
because they constitute direct discrimination, in that they distinguish the sexes
in order to favour one over the other. It is for that reason that af¬rmative action
programmes are known in Britain as reverse discrimination. Yet if direct dis-
crimination is not objectionable in itself, as I have suggested is the case, then
af¬rmative action programmes for women cannot be faulted just because they
directly discriminate against men. Rather, they are to be faulted only when their
favouritism is directed to egalitarian ends, or to some other misconception of
what it means to be a woman or a man, and that favouritism deprives some
person, woman or man, of the ability to lead a successful life.
It is as often contended that af¬rmative action programmes are objectionable
because they deny people, in this case men, the opportunity to be evaluated on
merit alone, since they insist that sex be taken into account in settings where,
but for that insistence, sex would not be regarded as part of merit. Yet if the
consideration of irrelevant criteria is not objectionable in itself, as the law
against indirect discrimination assumes, and as must be the case where that
consideration deprives no person of the ability to lead a successful life, then
af¬rmative action programmes cannot be faulted just because they invoke an
irrelevant criterion, if that is what they do. That being the case, af¬rmative ac-
tion programmes are valid where they seek to introduce women into valuable
environments that women have previously played little or no part in; where the
reason for doing so is that women are not only capable of contributing to such
environments but would be deprived of a successful life if they could not do so;
and where the goal of the programme is not the equal representation of women
in the environment in question, but a degree of representation that is suf¬cient
to inspire other women to seek entry to that environment, women who not only
have the ability to ¬‚ourish there but need access to it in order to lead a successful
life.
This sketch of the status of the current law against discrimination may seem
jaded. However, the fact that a law is ultimately misguided, or even causes
harm to some people, does not mean that it does no good. Women and men are
indistinguishable in many respects, and to the extent that they are, laws that
insist that they not be distinguished may serve women well. In particular, they
will serve women well wherever it has been pretended, to women™s cost, that
women and men are different when they are not. The dif¬culty arises, there-
fore, when women differ from men, need access to that difference in order to
lead successful lives, and ¬nd access barred by laws that insist that they not
208 equality, difference, and the law

be distinguished from men, directly or indirectly. In other words, antidiscrimi-
nation laws do women harm whenever they deny recognition to the distinctive
qualities and characteristics that at least some women need access to in order
to lead successful lives.
A ¬nal point. As I have already suggested, one of the attractions of egalitarian
legislation is that it is straightforward to draft and to enforce. The same cannot be
said of the recognition of women™s difference, to the extent that it is necessary.
That being the case, if we as a society need to respond to a wide range of
women™s qualities in order to ensure that no woman is deprived of the ability
to lead a successful life just because she is a woman, qualities that distinguish
women from men as well as those that do not, it may be that we must act
in ways that the law is incapable of giving effect to. Yet this is no cause for
concern. The law is only rarely in the vanguard of social change and when it
is, it never acts alone. More often and more typically, law crystallizes certain
aspects of a change that society has already committed itself to, wittingly or
unwittingly. By and large, laws against sex discrimination exist in societies that
have otherwise committed themselves to ending such discrimination, and so
serve as the product and expression of that commitment. When I say that it is
necessary to understand women well enough to ensure that they are not denied
the ability to lead a successful life, therefore, I have in mind an understanding
that will in all probability be only partially embodied in law. Ultimately, it is
up to each of us, in the conduct of our own lives, to acquire the knowledge and
concern for others that will enable us to avoid discrimination. The law may help
us to meet this responsibility, but it cannot discharge it for us.
Index




af¬rmative action, 47, 53, 62, 206“7 concern, capacity for, 8, 31“32, 49, 110,
androgyny, 1“3, 64, 66“68, 71“73 125, 172, 175, 190, 201“2
apartheid, 101, 106 Cornell, Drucilla, 40“41, 43, 61, 75“77,
assessment, 63“66; complex, 69“71; 78“106 passim, 107“8, 113, 120, 123
simple, 66“69, 71“74 culture, 26“27, 29“31, 79“82, 88, 91,
assimilation, passing, 139 104“5, 122, 124, 125, 127“28, 129“30,
attributions, 21“22 143“44, 165, 174“75, 175“78;
autonomy, 19“20; see also roles aboriginal, 178; minority, 158

Caravaggio, 180 deconstruction, 76“77, 82“106, 156; and
change: of character, 4, 31“32, 50, 60“63, af¬rmation of the feminine Other, 92“93;
63“66, 78“79, 110, 122“23, 135“40, of the masculine subject, 91“92;
145, 155“56, 172“73, 188; law and thematized, 96“104; unquali¬ed, 93“96;
social, 208; morality and, 3, 24, 31, see also change, of character
137“38; responsibility for, 190“91, 208; Derrida, Jacques, 76, 78“79, 84, 85“88, 96,
see also deconstruction 97, 105“6
characteristics, personal, 28“31; contested, determinacy, 87, 96“99, 102“5
143; moral, 28, 31, 138, 171; nonmoral, determinism, 44, 87
28“29; women™s, 144“45; see also devaluation, 56, 182“84 see also goals;
woman, what it means to be a value
coherence, of deconstruction, 92“93, difference, 47, 54; approach, see sex
93“95, 98, 101“2 discrimination; biologically created,
comparison, 16“17, 150, 155“56; see also 199“201; culturally created, 201“2, see
noncomparison also sexual identity, social construction
complexity, human, 67, 69“70, 106“9, of; that matters, 197“202; see also sexual
121“22, 127 difference
conceptions, 36, 114“17, 125, 165, disadvantage, 42, 55, 57“58, 60, 76; brute,
170 111“12; character of, 109“12, 141“42,
concepts: enabling, 126; irrelevant, 125; 154“55, 158; deep, 157“67; distinctive,
objectionable, 125; and purposes, 121, 148“53; justi¬cation of, 149, 151;
124, 127“28, 129“32; and scope, 124; meaning of, 111“12, 140“42; sexual,
without instantiation, 125 153“55, see also disadvantage, character
210 index

disadvantage (cont.) Gilligan, Carol, 7, 48“49, 55, 61, 108, 136,
of, meaning of, threshold of, and 190
universal and particular forms of; goals, 169“71, 174“75; see also
threshold of, 141“42, 155, 158; uniform, devaluation; value
153; universal and particular forms of, goods, 115“17; particular, 143, 152;
148“53; see also inferiority; limitation universal, 143, 148, 150, 152
discrimination: adverse impact, 205“6; and Greene, Maurice, 160“61
difference, 44“50; direct, 204“5; and
discernment, 17; and dominance, 50“58; hierarchy, sexual, 44, 53“58, 63“66, 67“68,
indirect, 205“6; intentional, 204“5; 81“82; see also dominance;
nonvaluable, 17; racial, 169; sexual, subordination
113“17; without comparison, 10“16, homosexuality, 126, 139; bisexuals, 139;
16“19, 182; wrongful, 17“19, 115“17; gays, 15; lesbians, 34, 55, 72, 133
see also sex discrimination hooks, bell, 55
diversity: conceptual, 124“25, 127; nature humanity, denials of, 151“53
of, 121“28; relevance of, 128“32; value
of, 107“9, 132“34 identity: personal, 78“79, 80“81, 84, 86;
dominance, 43“44, 47, 50“58, 59“62; sexual, 78“79, 80“81, 86, 89“90, 92,
see also hierarchy; subordination 96“106; see also sexual identity
double gesture, 89, 96“104; see also ethical incapacity, psychological, 185“88;
relation profound, 187; shallow, 186
Dworkin, Andrea, 47 incommensurability, 70, 73, 163,
166, 171“72, 193; see also value
employment equity, 206“7 pluralism
equality, 4; as a value, 1“3, 4“6, 53“54, indeterminacy, 87“88, 93“96, 104“6;
57“58, 65, 71“74, 192“95, 203“4; as a see also undecidability
strategy, 16, 19, 22“23, 204; in fact, 38, inferiority, 57“58, 71“75, 110“12, 157“67,
67“68, 116, 140, 167“69, 195“96; social, 180“82; see also disadvantage; limitation
57“58; see also sexual equality Irigaray, Luce, 74“75, 76, 86, 93
essentialism, 33, 34“35, 55, 72, 80
ethical relation, 82, 88“91; see also double justice, 11“12
gesture
knowledge, 184“85; of what it means to be a
feminine, the, 78“106 passim; see also
woman, 37“39, 189“90; self-knowledge,
possibility, feminine; thematization
34, 37“38, 186“87; sources of, 189“90;
feminism, 114“17; liberal, 168; radical,
see also understanding, importance of
39“41; self-effacing, 97“100;
unmodi¬ed, 42“44
Lacan, Jacques, 76, 78“88, 93, 97, 99,
Fiss, Owen, 42, 57, 58
106
Freud, Sigmund, 78
law: antidiscrimination, 42“43, 44, 110,
Gardner, John, 12 113, 118“19, 169, 202“8; and change,
gender 2, 79“106 passim; see also sexual 208
difference; sexual equality; sexual limitation, 110“12; and capacity, 155“56;
identity and inferiority, 155“56, 157“67; see also
Gentileschi, Artemisia, 180 disadvantage; inferiority
ghettos, female, 182“83 Littleton, Christine, 75, 136, 172
Index 211

MacKinnon, Catharine, 32, 40, 42“77 race, 46, 55“57, 60, 68, 72, 133“34
passim, 79“82, 85, 90, 108, 110, 113, radicalism, 39“41
114, 123, 125, 135“38, 145, 149, 168, Rawls, John, 12
172, 175, 177, 190 Raz, Joseph, 4, 115“16
McCarthy, Thomas, 96 reasons, 4“5, 12, 109, 114“15
minorities, cultural, 158 relativism, 6“7, 8“9, 25“26
Minow, Martha, 75, 108, 136 relevance: of character, 175“78; of
misconceptions, 10“11, 115“18, 126“27, diversity, 128“32
165“66, 196, 198“202; ascertaining Rhode, Deborah, 136, 172
184“91; disabling, 185; immaterial, 36, role models, 34, 37
179; inspiring, 37; internalized, 185“88; roles, 20“22, 126“27
nonlimiting, 178“80; nonreciprocal, Rose, Jacqueline, 80, 86
13“15; offensive, 36; see also
misconceptions, damaging sameness, 45“47
misconceptions, damaging: comprehensive, sex discrimination, 107“8, 109“10, 113“17,
116, 169“71; critical, 115“16, 171“84; 151“53, 168, 188“89; see also
limiting, 172“78 disadvantage, sexual; sex discrimination,
Mitchell, Juliet, 80 Cornell™s analysis; sex discrimination,
myths, 9, 188“89 MacKinnon™s analysis
sex discrimination, Cornell™s analysis,
nature, 4, 43“44, 49“50, 59“60, 65, 122“23, 76“106; hierarchy, 81“82, see also
135 ethical relation; social construction,
noncomparison, 10“16, 16“19, 182 79“81, see also deconstruction
nonidentity, 84“85 sex discrimination, MacKinnon™s analysis,
nurture, 4, 122“23, 135; psychoanalytic 43“76; difference approach, 44“50;
view of gender, 79“81; social dominance approach, 50“58
construction of gender, 51“53 sexual difference, 1“3, 4“6, 13, 78“82,
Nussbaum, Martha, 151 84“85, 86“87, 112, 113“14, 116“17,
123, 196, 199“200, 205“6; nakedness,
objectivity, 7, 8, 24“25, 27“28, 30“31 1“2, 10, 15“16; polysexual, 86, 97;
opportunism, 16, 48 see also difference
opportunities, equal, 193“97 sexual equality, 5“9, 13“15, 25, 67“68,
oppression, 26, 49, 56, 61, 87, 108“9, 118, 167“69, 195, 197, 200; see also
132“33; see also dominance; hierarchy; equality
subordination sexual identity, 2, 5“6, 7“9, 13“15, 31, 125,
options, 10“11, 27“31, 115“16, 141, 165; 175, 177, 203; and a successful life,
nonvaluable, 29; valuable, 29“31 113“19, 172“75; social construction of,
Other, feminine, 81“82, 88“91, 43, 51“53, 59“63, 75, 79“81, see also
92“93 change, of character; see also identity
sexual orientation, 33; see also
Par¬t, Derek, 4 homosexuality
physical difference, 1“2, 4, 62, 63“66, Simmel, Georg, 52
67“69, 199“201 skepticism, 140“41; and change, 140
possibility, feminine, 87“88 solidarity, 106, 128, 130, 133“34
psychoanalysis, 78“79, 80“82 stereotypes, 179“80
psychological difference, 185“88 stigma, 36, 55“56
212 index

strategy, equality as, 16, 19, 22“23, see also devaluation; goals; successful

<<

. 36
( 37 .)



>>