Maestría en Derecho Constitucional
UNIVERSO ESTRATIFICADO
IV. CRONOGRAMA DE TRABAJO
Despite the benefits which arise from a substantive approach to equality acknowledging the biological and socially constructed differences between men and women, it is not a concept without critique. Embracing difference has been a source of concern, due to the way in which “differences can… be exaggerated, manipulated, and used opportunistically to coerce conformism and excuse corruption”. 85 Historically, difference has been “translated into evidence of female deficiency”,86 in positioning masculinity/the male as the norm, anything which detracts from this is as other, lesser. This has been used, for example, as a justification for ‘women’s work’ being distinct from that of men, based on notion of natural attributes which make them naturally more suited to, what is coincidentally then, less valued than that performed by men.87
84 The subtitle for this section is drawn from Minow’s "difference dilemma". She posits that ignoring difference in the case of subordinated groups "leaves in place a faulty neutrality," but also recognising that placing too much emphasis on difference can result in amplifying the notion of deviance attributed to such groups. "Both focusing on and ignoring difference risk recreating it. This is the dilemma of difference”: Minow, ‘Learning to Live with the Dilemma of Difference’ (n80), 160.
85 Alcoff L. M., Visible Identities: Race, Gender, and the Self (Oxford: Oxford University Press, 2006), 5-6.
86 Greene S., ‘Biological Determinism: Persisting Problems for the Psychology of Women’ (2004) 14(3)
Feminism and Psychology 431, 434. For a discussion of biological determinism and the oppositional construction of male/female dichotomy: see Chapter 2.
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Despite the modern liberal feminist critique of difference, its foundations can be found in one of the most famous historical proponents of women’s rights, Mary Wollstonecraft. Her approach to equality can be encapsulated in the statement below:
“Let woman share the rights and she will emulate the virtues of man… speaking of women at large, their first duty is to themselves as rational creatures, and next, in point of importance, as citizens, is that which includes so many, of a mother”.88
Here Wollstonecraft recognises the compatibility between equality and difference. The difficulties, at least in terms of the antithetic interpretations of these terms within Western Society generally is described by Pateman as the “Wollstonecraft dilemma”.89 This phrase expresses the difficulties which have arisen due to the polarised conception of equality/difference, presenting difference is the antithesis of equality. As such, to demand that women are equal to, but different from, men seems a logical fallacy. However, this encapsulates my central argument, that the recognition of difference is precisely what is needed in order to facilitate gender equality in practice. What is needed is not an argument as to the philosophical or ideological construction(s) of equality, but rather the implications of its application in practice.
Although accepting and utilising difference is far from uncontroversial, an adoption of substantive equality is the lesser of two evils. The formulation of substantive equality discussed here “rests on a social conception of individuality, which includes both women and men as biologically differentiated but not unequal creatures”.90 The
88 Wollstonecraft M., Vindication of the Rights of Woman (New York: Norton, 1975), 145.
89 Pateman C., ‘Equality, Difference, Subordination: The Politics of Motherhood and Women's Citizenship’ in Bock G., & James S., Beyond Equality and Difference: Citizenship, Feminist Politics and Female Subjectivity, (London: Routledge, 1992), 20.
90Pateman C., Feminist Critiques of the Public/Private Dichotomy, in Phillips A., Feminism and Equality (Oxford: Basil Blackwell, 1987), 122.
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problem lies not in difference itself, either in terms of sex or gender; but rather, it arises as a result of the implications of difference as constructed and replicated by societal structures. Societal structures which reinforce the perception that women, and the roles designated as feminine are lesser. To deny difference would merely allow for those inequalities, which are reinforced by the patriarchal application of formal equality to persist given that a “formal conception of equality... even if embedded in a substantive right... does not address the underlying... hierarchy which gives rise to inequalities in the first place”.91
The driving force behind equality should not be mere principle, but on the implications of equality in practice. Within Fredman’s conception of substantive equality she focusses on four dimensions which equality should seek to achieve, it should be: redistributive, ensure recognition, be transformative and participative. 92 This recognition should not only be related to the difference of individuals, but the role of social and political institutions in shaping the consequence of this difference in order for systemic inequalities to be addressed through redistribution, leading to the transformation sought.
Difference as the Antithesis of Equality?
For those seeking equality, acknowledging difference has proved problematic from three distinct, but interrelated reasons. First, difference has a marked history through its associations with biological determinism and essentialism, which is also particularly
91 Albertyn. C. (et al)., ‘Introduction: Elusive Equalities - Sex, Gender and Women’ (2014) International
Journal of the Law in Context 421, 422.
92 Fredman S., ‘The Potential Limits of an Equal Rights Paradigm in Addressing Poverty’ (2011) 22
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relevant in relation to motherhood as discussed in detail below.93 Secondly, difference has historically had negative connotations and consequences for those labelled as other. Finally, and most crucially, difference has been constructed as the antithesis of equality, forming an additional dichotomy to those discussed in the previous chapter.
Difference has been used to legitimate discrimination against women rendering it “the handmaiden of male domination”.94 It has excluded women from full citizenship by constructing sexual difference as political difference.95 Groups who have been labelled as different or other are tainted with “deviance, stigma, and inequality”.96 As such, the manipulation of difference, and its affiliation with biological determinism, has reinforced the binary construction of gender which sits in opposition with a number of feminist perspectives.97 This resulting in the inescapable inequality tied to the natural difference between men and women which presents the latter as lesser. As such from an equality perspective, difference has been a tool of the patriarchy. Such a history presents a challenge when attempting to demonstrate the utility of difference as a method of improving the position of women.
Despite this, difference has also proved invaluable for feminists, as Scott states “Feminists cannot give up ‘difference’; it has been our most creative analytic tool”.98 It has allowed for those socially constructed differences between men and women to be challenged, for the gender-neutrality of individualism, society and the state to be
93 In particular [2.3], [2.4].
94 Fraser N., Justice Interruptus: Critical Reflections on the ‘Poststructuralist’ Condition (New York: Routledge, 1997), 100.
95 Pateman The Sexual Contract (n51), 6. See also the discussion of citizenship above.
96 Young, ‘Polity and Group Difference’ (n79), 273. For examples of this in practice: see the treatment of ‘deviant’ women in Chapters 5-7.
97 Segal L., Is the Future Female? Troubled Thoughts on Contemporary Feminism (London: Virago, 1987), xii.
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discredited, for ‘women’s issues’ to be heard. The reformulation of difference been central to the feminist movement(s) for a considerable time.99 Under such a formulation “difference now comes to mean not otherness, exclusive oppression, but specificity, variation, heterogeneity”,100 it accepts and celebrates the diversity of women, and seeks to secure equality through the recognition of difference rather than sameness.
The equality/difference debate has resulted from an oversimplification of terms which has constructed a “false but extremely persistent dichotomy”.101 The way in which difference has been constructed as the (lesser) opposite to equality arising from the liberal construction of equality as sameness, reliant on universal individualism which defines identity as sameness. In reality “the opposite of equality is inequality… the antithesis of difference in most usages is sameness or identity”.102
Presenting equality and difference as dichotomous is considerably more dangerous than it may appear at first instance, it requires that a choice is to be made between the two. This precludes a conception of equality in practice which relies on the recognition of difference, in favour of a theoretical equality which simultaneously reproduces and fails to recognise difference. The normification of masculinity within society means that women “must either base their claims on assertions of sameness with men or assert their differences by abandoning claims to rights”103 neither of which produces a satisfactory
99 As touched upon above in relation to the Wollstonecraft Dilemma and identifiable in Chapters 5-7. 100 Young, Justice and the Politics of Difference (n45), 171.
101 Kimball M. M., Feminist Visions of Gender Similarities and Differences (London: Haworth Press, 1995), 175.
102 Scott, (n71), 44.
103 Hirschmann N. J., ‘Difference as an Occasion for Rights: A Feminist Rethinking of Rights, Liberalism, and Difference’ in Hekman S (ed)., Feminism, Identity and Difference (Oxon: Routledge, 2013), 30. The normification of masculinity having stemmed from the gendered liberal public/private dichotomy as discussed in Chapter 2.
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outcome. “The ‘choice’ between equality and difference is a false choice”104 which reflects the fictious dichotomies on which it has been constructed.
The equality/difference dichotomy has in the same way as public/private, nature/culture and male/female have within liberal theory, been presented as both oppositional and hierarchical. “Western culture has proven to be incapable of thinking not-the-same without assigning one of the terms a positive value and the other, a negative”.105 Private, nature, female and difference all fall to the bottom of these dichotomised hierarchies.As Gedalof notes,
“the privileging of sameness over difference results, not in the production of universal values, but rather in the effective universalizing of the particular interests and perspectives of dominant groups”.106
As a result, difference has been used to distinguish between those who are deserving of equality by virtue of their sameness, and a result it must be denied or distinguished from its negative foundations so that equality and difference can co-exist.
Striking a balance between equality and difference recognises that “while ‘assumed differences’ should be carefully scrutinized to expose any underlying prejudices, ‘real differences’ must be accommodated”. 107 Ignoring difference, for the sake of maintaining a flawed notion of equality based on an impossible utopian reading of society, perpetuates the subordination of the feminine and maintains the power of the
104 Longo P., ‘Revisiting the Equality/Difference Debate: Redefining Citizenship for the New Millennium’ (2001) 5(3) Citizenship Studies 269, 270.
105 Eisenstein H., & Jardine A., The Future of Difference (New Jersey: Rutgers, 1985), xxv.
106 Gedalof I., ‘Sameness and Difference in Government Equality Talk’ (2013) 36(1) Ethnic and Racial
Studies 117, 120.
107 Minow M., ‘Making all the Difference: Three Lessons in Equality, Neutrality, and Tolerance’ (1989) 39(1) DePaul Law Review 1, 4.
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masculine. Recognising difference in this way allows for equality and difference to be reconciled in a way which reflects the social reality to which it is applied.
The binary construction of equality and difference acts as a barrier to the attainment of equality in practice for those who have traditionally been denied full citizenship due to their real or perceived difference. Given that “women cannot be identical to men in all respects, we cannot expect to be equal to them. The only alternative… is to refuse to oppose equality to difference”, the dichotomy needs to be deconstructed.108 True equality, requires the recognition of both differences and similarities depending on differing relationships and circumstances. Such an approach more adequately reflects individuals interactions with society. As a result, what is required is a denial of the opposition drawn between equality and difference, instead embracing a form of “equality in difference”.109