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sex, and of sexual difference as opposed to sexual dominance. It is important
to the analysis and understanding of her work, however, and particularly of its
broader implications for the well-being of women, to pay attention to these com-
ponent distinctions in order to appreciate their consequences for the problem
of reconstructing sex in a nonhierarchical form.


II. Difference and Dominance

A. The Difference Approach
According to MacKinnon, the approach to equality “that has dominated politics,
law and social perception”11 in the United States regards sex discrimination as

10 Feminism Unmodi¬ed, supra n. 1, at 8.
11 Id. at 32.
II. Difference and Dominance 45

the use of “gender difference in social decision making without justi¬cation in
what is taken to be gender biology”.12 On this view, if women are treated differ-
ently from men for reasons that have no basis in women™s nature, that treatment
is irrational or arbitrary. The proponents of this view, which MacKinnon calls
the difference approach, regard the irrational and arbitrary treatment of people
as unequal and discriminatory. They believe that to impose on some a burden
from which others are relieved, or to deny to some a bene¬t that others enjoy, is
unequal and discriminatory if no rational basis exists in the character of those
people that could justify that distinction. If, for example, a woman is denied
the opportunity to perform a task on the ground that as a woman she lacks cer-
tain skills, skills that she in fact possesses, she is treated arbitrarily and hence
discriminated against on the basis of her sex.
In MacKinnon™s words, this is an approach that “tries to map [the] reality”
of sexual difference, rather than to change it:13 “Its underlying story is: on the
¬rst day, difference was; on the second day, a division was created upon it; on
the third day, irrational instances of dominance arose”.14

i. the sameness branch. On MacKinnon™s analysis, the difference app-
roach has two branches. The ¬rst and predominant branch, which she calls
the sameness branch, evaluates women according to their correspondence with
the qualities possessed by men. It establishes a single standard of reference
for the assessment of discrimination, a standard that is in practice created and
maintained by men in their own image, and then asks whether women are
capable of meeting that standard. Those women who can meet the standard
gain equal access to the bene¬ts that men already enjoy.15
MacKinnon concedes that this branch of sex discrimination theory has en-
abled a signi¬cant number of women to avoid being disadvantaged on the basis
of sex. She argues, however, that it has done so only because and to the extent
that those women have ceased to be identi¬able as women. On her analysis, the
sameness branch simply assesses the degree to which men have been successful
in their attempt to construct society and sex in a form that re¬‚ects the subor-
dination of women. If subordination has become so much a part of women™s
social identity that it is regarded as naturally female by men and women alike,
disparate treatment of women on that basis is justi¬ed. Only if men have failed
in their attempt, so that women retain the capacities that society has been de-
signed to deprive them of and consequently function not only like men but as
men, yet are treated differently from men, is discrimination found.16


12 Sexual Harassment of Working Women, supra n. 1, at 110.
13 Feminism Unmodi¬ed, supra n. 1, at 44.
14 Id. at 34.
15 Id. at 33“34.
16 MacKinnon assumes that men and women are naturally equal in their capacities.
46 equality

The sameness branch of the difference approach thus bene¬ts those rare
women who have been so unaffected by their history and culture as to be func-
tionally male, those, that is, whom the social construction of sex has in effect
overlooked. For the vast majority of women, who suffer from systemic disadvan-
tage rather than from arbitrary treatment, that is, who suffer from disadvantage
that is incorporated in their existence as women, it has nothing to offer:
[It] has in mind people who have not been changed by racism or sexism, who are in
the same position as corresponding whites and men, but have irrationally and arbitrarily
been treated differently. . . . To the extent to which such groups really are not equal,17
their status is found legally justi¬ed. . . . The approach protects primarily women who
for all purposes are socially men, blacks who for all purposes are socially white, leaving
untouched those whose lives will never be the same as the more privileged precisely
because of race or sex.18

MacKinnon implicitly presumes that for the most part the social world func-
tions rationally, and accordingly she regards this approach to the question of sex
discrimination as looking for discrimination in the few mistakes made by the
system of sexual construction,19 while overlooking entirely the discrimination
that is inherent in the way that sex is constructed. Consequently, she sees it as
an approach whose design and structure render it incapable of identifying the
very problem of inequality that it purports to address.20 On the contrary, she
claims, it implicitly endorses those inequalities that are so deep-rooted as to
have become part of the social structure of sex. Of this approach™s standard of
reference MacKinnon writes:
It is a racist, sexist standard. If you can prove that you have what are socially white and
male quali¬cations “ money, education, credibility “ and that you are basically white
and male in every cultural way but were oddly mistaken for, say, a Third World woman
and so were turned down for some bene¬t, at that moment the white man may see that
you have not been treated equally.21

17 MacKinnon refers here to her understanding of equality, rather than to the understanding relied
upon by the theory she is criticizing. In fact, however, the difference theory sees equality as
the nonarbitrary treatment of people, and so would regard people who have not been treated
arbitrarily as equals in terms of that treatment, whatever the differences in their social and
economic positions.
18 Sexual Harassment of Working Women, supra n. 1, at 126.
19 Feminism Unmodi¬ed, supra n. 1, at 168.
Id. at 8: “ . . . a discourse of gender difference serves as ideology to neutralize, rationalize and
20
cover disparities of power, even as it appears to criticize them”. See also Sexual Harassment
of Working Women, supra n. 1, at 119: “Antidiscrimination theory, in its antidifferentiation
guise, can never confront the issues on which it turns: what social distinctions are based on sex
for what reasons, and hence with what permissible consequences?” Here again, as in the text
accompanying note 17, MacKinnon assumes that it is the avowed purpose of antidiscrimination
policy to address inequality as she sees it, rather than to address arbitrariness or irrationality.
That is, she takes prohibitions on arbitrariness to be strategies for the removal of women™s
disadvantage, not different understandings of inequality itself.
21 Feminism Unmodi¬ed, supra n. 1, at 65.
II. Difference and Dominance 47

As far as MacKinnon is concerned, this approach to sex discrimination amounts
to “an embrace of the model of the oppressor”.22 “[I]f this is feminism, it
deserves to die.”23
For MacKinnon, then, the primary weakness of the sameness branch of the
difference approach to sex discrimination is its treatment of the present content
of sex as natural or biological rather than socially constructed. This failure to
probe the deep structure of society and the foundations of sex there renders the
approach incapable of criticizing those differences in the treatment of women
that have come to be entrenched in the very existence of women, so as to make
women inherently incapable of meeting the standard expected of them, by the
very de¬nition of their sex.
Of course, an approach that sees sex as natural might nevertheless con-
clude that the dominance of one sex over the other is arti¬cial. Difference,
in MacKinnon™s view, need not imply any form of dominance; it is society
that makes differences dominant by assigning value to them.24 Yet the same-
ness branch of the difference approach silently takes maleness as the standard
against which to measure women, and thus grants to the male sex the unjusti¬ed
status of a norm. In doing so it hides the fact of male dominance and female
subordination behind a mask of mutual difference.

ii. the difference branch. The second branch of the difference approach
to sex discrimination MacKinnon calls the difference branch. Like the same-
ness branch, it sees men and women in terms of what it regards as their natural
differences. Unlike the sameness branch, however, the difference branch eval-
uates women in terms of their divergence from the qualities possessed by men,
rather than their conformity to them. It thus establishes a double standard of
reference for the assessment of men and women, and in special circumstances
(such as pregnancy) uses a female referent as a basis upon which to compen-
sate women for their inability to meet the male standard. It is on that basis,
MacKinnon suggests, that af¬rmative action programmes and other forms of
accommodation have typically been justi¬ed.25
Under this branch of the difference approach women gain equal value for
selected aspects of their femaleness, as opposed to the equal access to the

22 Id. at 123.
23 Id. at 5, quoting Andrea Dworkin.
24 Sexual Harassment of Working Women, supra n. 1, at 140: “Functional difference cannot by itself
justify systematic social inferiority. There is nothing in a difference that dictates inferiority; there
is only the society that makes the content of those differences into inferiorities.” MacKinnon
thus contends that not only the content of sex but the value attached to any application of that
content is socially constructed. She believes that societies do not mistake the value of activities
engaged in by women, for there is no truth to the value of those activities to mistake. Rather,
societies subordinate women by according greater value to the activities they assign to men than
to those they assign to women. But see note 64 and accompanying text.
25 Feminism Unmodi¬ed, supra n. 1, at 33.
48 equality

bene¬ts of maleness that they gain through the sameness branch. According to
MacKinnon, the difference branch

. . . views women as men view women: in need of special protection, help, or indul-
gence. To make out a case, complainants have to meet the male standard for women:
femininity.26

On its own terms, then, the difference branch looks like special pleading, a
case of women attempting to have it both ways.27 Under the sameness branch
women are entitled to the same bene¬ts as men if they can show that they
possess the same quali¬cations as men. Under the difference branch, however,
they are granted the same bene¬ts as men despite having different quali¬cations,
treatment that the sameness branch would appear to condemn as discriminatory.
For that reason the bene¬ts provided by the difference branch are vulnerable to
objection on the basis that they constitute reverse discrimination. MacKinnon
suggests that at a minimum the approach is generally regarded as “patronizing
but necessary to avoid absurdity”.28 She sees it as asking the following question:
“ . . . should we treat some as the equals of others, even when they may not be
entitled to it because they are not up to standard?”29
Despite its appearance of special pleading, however, the difference branch
might be justi¬ed without embarrassment as a principled exception to the
broader concept of sex equality embodied in the sameness branch. MacKinnon™s
criticisms of it, therefore, need to be and in fact are more fundamental than the
suggestion that it seems patronizing. In her view, contrary to its appearance
and reputation, the essential ¬‚aw of the difference branch is that it upholds
rather than contravenes the principles underlying the sameness branch, and
hence shares their failings. She argues that the difference branch, as much as
the sameness branch, implicitly relies on maleness for its standard of reference,
though in this case assessing women in terms of their inability rather than their
ability to comply with it:

. . . for purposes of sex discrimination law, to be a woman means either to be like a man
or to be like a lady. We have to meet either the male standard for males [the sameness
branch] or the male standard for females [the difference branch].30

Accordingly, MacKinnon is deeply critical of those feminist theorists, such
as Carol Gilligan, who in her view build upon the difference branch by seeking
to describe and value the character and capacities of women as they are presently
formed and understood. For MacKinnon, the characteristics that we know as

26 Id. at 71.
27 Id. at 33, 39, 71.
28 Id. at 33.
29 Id. at 43.
30 Id. at 71.
II. Difference and Dominance 49

female are nothing other than the manifestations in sexual identity of the con-
ditions of oppression under which women™s lives have been led. Women who
seek to endorse and value their qualities as women in fact endorse the concept
of femaleness that has been constructed by men, and hence con¬rm and sustain
their own subordination. Of Gilligan™s thesis that women speak in “a different
voice”, MacKinnon observes:
. . . she achieves for moral reasoning what the special protection rule achieves in law: the
af¬rmative rather than the negative valuation of that which has accurately distinguished
women from men, by making it seem as though those attributes, with their consequences,
really are somehow ours, rather than what male supremacy has attributed to us for its
own use. For women to af¬rm difference, when difference means dominance, as it does
with gender, means to af¬rm the qualities and characteristics of powerlessness.31

MacKinnon argues that while the voice that women speak in is undoubtedly
distinctively female, it is paradoxically and more fundamentally the voice of
men, the voice that men have invented for women to speak in, the voice given
to those who occupy the subordinate roles that men have invented for women
to perform. For MacKinnon, the attempt to regard this voice as women™s own
and to value and appreciate it as such is merely “a sentimentalization of our
oppression as women”:32
I do not think that the way women reason morally is morality “in a different voice”.
I think it is morality in a higher register, in the feminine voice. Women value care because
men have valued us according to the care we give them. . . . Women think in relational
terms because our existence is de¬ned in relation to men.33

Furthermore, MacKinnon argues, not only does the difference branch fail
to see that what it describes as women™s voice is in fact the voice created for
women by men, but it fails to see that this voice is not so much different as
subordinated. Women™s voice is the voice of the dominated, as much in what it
is compelled to leave unsaid as in what it is driven to say:
. . . when you are powerless, you don™t just speak differently. A lot, you don™t
speak. . . . You aren™t just deprived of a language with which to articulate your dis-
tinctiveness, although you are; you are deprived of a life out of which articulation might
come. Not being heard is not just a function of lack of recognition, not just that no one
knows how to listen to you, although it is that; it is also silence of the deep kind, the
silence of being prevented from having anything to say.34

Like the sameness branch, then, the difference branch treats as natural sexual
differences that MacKinnon believes are socially constructed. Accordingly, it

31 Id. at 38“39.
32 Id. at 123.
33 Id. at 39.
34 Id.
50 equality

mistakenly regards as inherent in women™s nature, and then seeks to value or
to accommodate, characteristics that have actually been assigned to women by
the power structures of society. Those characteristics, MacKinnon maintains,
are the hallmarks of powerlessness, and are no more naturally female than they
are naturally black or naturally aboriginal. Their female character, she argues,
is the consequence, not the cause of their location in women.
Like the sameness branch too, therefore, the difference branch conceals sex-
ual hierarchy behind a mask of sexual difference. The women™s voice that it
calls different is in fact subordinate; the difference that it notices is not the recip-
rocal difference of men from women and women from men but the difference
of women from the norm established by men.
Overall, then, the failure of the difference approach in both its branches is
the failure to probe the nature and origins of the differences between men and
women, a failure to make those differences themselves the subject of political
criticism. Instead of challenging sexual difference, the approach focuses on the
consequences that can legitimately be attributed to it. In MacKinnon™s view,
however, the fundamental inequality of men and women can be understood only

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