Equality, Comparison, Discrimination, Status
Author | Beverley Baines |
Pages | 73-98 |
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Equality, Comparison, Discrimination,
Status
Beverley Baines
A. INTRODUCTION
Is comparison f undamental to interpreting the equality gua rantee in sec-
tion of the Charter? Jurists and feminists disag ree about the answer to
this question. On the one side, the Supreme Court of Canada subscribes
unequivocally to comparison, to the point of relying on it to deny an equal-
ity claim. On the other side, feminist legal theorists such as Diana Majury
have asked “whether because it is a comparative concept, equality can ulti-
mately only mean formal equality, albeit in forms more sophisticated than
treating x and y ident ica lly.” Since feminists have strong reservations about
formal equa lity, Majury was speaking for those who criticize the Court’s
reliance on comparison. In this paper, I intend to examine this controversy.
I propose to argue that comparison is essential to dismantling gender status
hierarchies that subordinate women. e remainder of this introduction
briey outlines the four concepts that I will rely on to make this argument:
equality, comparison, discrimination, and status.
First, equality: the Court’s approach to equa lity is founded on distin-
guishing substantive from formal equality. Notwithstanding their dier-
ences, the Court and its critics may not be so f ar apart. Given the Court’s
penchant for asserting that “equality is a substantive concept,” the Justices
may intend to attribute comparison only to substantive equality. If so, their
approach would narrow the focus of their disagreement with feminists. In-
stead of debating the larger question of whether comparison is ess ential
to equa lity, jurists and feminists would dier over a more focused issue;
namely, which concept of equality — formal or substantive — does com-
parisonserve?Furthermore,sincebothsideshaveyettoexplainthemean-
ing of comparison, this lacuna gives them a common starting point.
Next, comparison: recently Elisa Holmes advanced a new theory of
comparison in an article entitled “Anti-Discrimination R ights Without
Equ al ity.” As her title suggests, Holmes challenged the prevaili ng assump-
tion of “some kind of relationship between anti-discrim ination rights and
equality.” Her argument is at once novel and complex. Its novelty lies in
using comparison to dierentiate equality from anti-discrimination; its
complexity arises from treating comparison as if it in forms both sides of
this d istinction. Eectively, Holmes argued for a lternative approaches to
comparison, referring to one as constitutive and to the other as instrumen-
tal. She then attributed constitutive comparison to equality analysis while
maintaining anti-discrimination analysis uses instrumental comparison.
Ultimately, she concluded that the distinction between constitutive and
instrumental comparison sustained “the possibilit y that in fact anti-dis-
crimination principles are not egalitarian in any signi cant way.”
ird, discrimination: like Holmes, I invoke discrimination, albeit not
to distinguish it from equality. Rather, I treat discrimination as a principle
that facilitates applying Holmes’ theory of comparison to the Court’s dis-
tinction between formal and substantive equal ity. Unfortunately, Holmes
precluded applying her theory direct ly to the Court’s approach to equa l-
ity when she dismissed the distinction between formal and substantive
equality, claiming they blur into each other in the context of rights claims.
Fortunately, the Court has not only distinguished substantive from formal
equality but also justied this distinction by evoking the American anti-
discrimination principle. However, it is not clear that the C ourt under-
stood the main features of this principle, which were set out by Yale law
professor Owen Fiss in a seminal article written in t he s. Not only is
one of these features consistent with instrumental comparison, but Fiss
also explained why anti-discrimination is the principle that informs formal
equality. Contrar y to the Court’s opinion, in other words, discrimina-
tion (as anti-discrimination is known in section jurisprudence) operates
as the principle t hat links instrumental comparison with formal equa lity.
What remai ns, therefore, is to discover whether a distinctive principle is
consistent with constitutive comparison and substantive equality.
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