Comparing theories of sex discrimination: The role of comparison

Oxford Journal of Legal Studies

Volumn 25, Issue 3, 2005, Pages 547-564

  Réaume, Denise ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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EID: 27744456622     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi019     Document Type: Article

References (14)

1. P. Westen 'The Empty Idea of Equality', 95 Harv L Rev 537 (1982);
2. J. Raz, The Morality of Freedom (1986) at 217-44.
3. The courts, however, are another matter. It is somewhat ironic that the charge of adopting a comparative account of sex discrimination should be laid at the doorstep of feminist theory, when arguably it is the courts who have insisted that equality law is a matter of comparison. For example, the Supreme Court of Canada, in Law v Canada [1999] 1 SCR 497, opined that: 'the equality guarantee is a comparative concept. Ultimately, a court must identify differential treatment as compared to one or more other persons or groups. Locating the appropriate comparator is necessary in identifying differential treatment and the grounds of the distinction. Identifying the appropriate comparator will be relevant when considering many of the contextual factors in the discrimination analysis' (para 56). To the extent that feminist legal advocacy adopts the language of comparison, it is likely to be because its audience demands it.
4. Raz, above n 1, at 227-29.
5. For example: 'Why should you have to be the same as a man to get what a man gets simply because he is one? Why does maleness provide an original entitlement, not questioned on the basis of its gender, so that it is women - women who want to make a case of unequal treatment in a world men have made in their image... - who have to show in effect that they are men in every relevant respect, unfortunately mistaken for women on the basis of an accident of birth?'. C. MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987) at 37.
6. I propose to simply skate over the controversy over whether sex and gender are different things, given that MacKinnon treats the whole ball of wax as socially constructed and it is this view that Macklem spends a lot of time on. To make clear the scope of the claim about social construction, I therefore use the term 'sex/gender'.
7. D. Réaume, 'The Social Construction of Women and the Possibility of Change: Unmodified Feminism Revisited' (1992) 5 Canadian Journal of Women and the Law 463.
8. This fails to notice the explanatory power that MacKinnon attributes to the definition of sexuality in accordance with male dominance and female subordination. For MacKinnon, sexuality is the lynchpin of inequality. Other forms of inequality can all be connected, she thinks, to male dominance through sexuality. Nevertheless, she does also acknowledge that women's subordination extends beyond sexuality, so Macklem is right to search for a more comprehensive account of how to identify dominance.
9. Feminism Unmodified, above n 4, at 39.
10. Ibid at 121.
11. C. MacKinnon, Toward a Feminist Theory of the State (1989) at 116, emphasis added.
12. Ibid at 244.
13. Feminism Unmodified, above n 4 at 22.
14. Toward a Feminist Theory of the State, above n 9 at 247.