Toward Substantive Equality: A Feminist Critique of the Notion of Difference in the Canadian and South African Equality Tests
| Date | 01 September 2001 |
| Published date | 01 September 2001 |
| Author | Claire Barclay |
| DOI | 10.1177/135822910100500306 |
International Journal
of
Discrimination and the Law, 2001, Vol.
5,
pp. 167-188
1358-2291/2001 $10
©
2001
A B Academic Publishers. Printed
in
Great Britain
TOWARD SUBSTANTIVE EQUALITY: A FEMINIST
CRITIQUE OF THE NOTION OF DIFFERENCE IN THE
CANADIAN
AND
SOUTH AFRICAN EQUALITY TESTS
CLAIRE
BARCLA
y•
McGill University, Canada
ABSTRACT
Difference is implicitly measured against a standard
of
'normality' which upon
closer inspection reveals the traits
of
society's dominant group -white Christian
heterosexual able-bodied men. Those falling short
of
this benchmark are outcast as
'different'. Although feminists long critiqued the hegemony
of
this standard, it was
with limited success. In the early 1990's, however Martha Minow inspired a para-
digm shift
of
our perception
of
difference, principally recognizing that difference is
not fixed in the sense that it belongs to someone, but is variable, dependent on the
comparator groups under review and the perspective
of
the person naming the dif-
ference. This theoretical leap has profound consequences for a substantive reading
of
equality. And yet the South African and Canadian courts have been slow to
apply it to their equality jurisprudence. This paper examines the Canadian and
South African equality tests and some
of
their more recent case law, concluding
that the absence
of
a relational construction
of
difference perpetuates a formal
application
of
equality.
INTRODUCTION
At
the foundation
of
every equality inquiry lies a recognition
of
dif-
ference: between groups as well as individuals.
While
every equality
analysis requires an initial isolation
of
the group
or
individual under
review, little,
if
any attention is paid to
the
conceptual premises upon
which this exercise is based.
The
notion
of
difference is pivotal
in
shaping a thorough understanding
of
our
concept
of
equality
and
has
a profound influence
on
the way in which claims
of
inequality are
tested. This article explores the concept
of
difference as it is cur-
rently conceived
in
both the Canadian and South African equality
tests. This inquiry forms part
of
a broader project that examines the
extent to which
the
South African and Canadian courts have
developed their equality tests in a
manner
that fully embodies the
tenets
of
a substantive notion
of
equality.
168
Judgments handed
dow~
in both jurisdictions repeatedly affirm
a mutual commitment to achieving equality
in
a substantive sense,
this being that in certain circumstances, it is
the
very essence
of
equality
to
draw
distinctions between groups
and
individuals to
address their varying needs and interests. Substantive equality has
come
to replace a formal approach to equality,
which
the
South
African and Canadian courts have found misplaced
in
their socially
and economically diverse societies: a formal approach
to
equality
merely required judiciaries to apply laws equally
to
all without further
examination
of
the
particular circumstances
or
context
of
the
indi-
vidual
or
group and consequently the content
of
the
law
under
review.
Yet
despite
the
Canadian and South African
courts'
credence to
a substantive application
of
equality, the construction
of
difference as
reflected
in
both their equality tests encourages
the
application
of
a
formal understanding of. equality.
By
analysing examples found
in
South African and Canadian case law, this article seeks
to
expose
that
the
notion
of
difference, in the context
of
equality analysis, per-
petuates a formalistic notion
of
equality: difference is perceived as
inhering in
or
belonging to individuals and groups rather than as aris-
ing
from
the
relationship between
two
comparator groups and contin-
gent
on
the
perspective
of
the person labeling such difference. In
tum,
judicially-imposed determinations
of
a particular individual
or
group's
'true'
or
'actual'
characteristics -being
the
test developed
in
substantive equality jurisprudence -is
no
different to
the
model
applied
under
a formal notion
of
equality where judiciaries
made
unsubstantiated and often stereotypical assignments
of
sameness
and
difference with often manifestly unjust outcomes.
To
escape this pit-
fall, this article proposes a judicial re-conceptualisation
of
the
way
in
which differences between individuals and groups are examined,
drawing
on
theoretical insights developed by feminist scholars,
most
notably, Martha
Min
ow.
The
article begins
by
providing a
brief
overview
of
develop-
ments
in
feminist discourse
of
the sameness/difference paradigm
and
introduces
Minow's
thesis which resolves
many
of
the
difficulties
posited
by
this construct. This is followed
by
an analysis
of
the
way
in which difference has been understood and applied
in
Canadian
and
South African jurisprudence, using examples from
both
jurisdictions
to illustrate
the
manner
in
which their equality tests -
in
particular
the discrimination
and
analogous ground sub-tests -reinforce a
formal application
of
equality.
The
final section explores
the
way
in
which
Minow's
thesis
of
difference
can
be
imported into their equal-
ity tests
so
that discrimination is
no
longer understood formalistically
as isolated incidents
of
inter-personal injustice,
but
as systemic
to
the
way in
which
societal institutions and structures operate.
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