- Rethinking Equality Projects in Law: Feminist Challenges
Having reached the twenty-fifth anniversary of the equality provisions in the Canadian Charter of Rights and Freedoms, an appraisal of the dominant role the concept of equality has come to play in Canadian feminist legal struggles is timely.1 The recent collection of essays Rethinking Equality Projects in Law: Feminist Challenges provides useful and challenging insights to aid such a project.2 The collection is edited by Rosemary Hunter and comprises eight essays authored by feminist legal scholars from a range of Commonwealth jurisdictions. All of the essays take up the question of how effective the use of equality—as a concept, a strategy, and a claim—has been to feminist legal projects. As two of the authors in the collection argue from an Australian context, a sophisticated discourse of equality in feminist and other critical scholarly literature has failed to translate into jurisprudential success for feminist causes. While the collective message of this book is perhaps one of disenchantment with equality as a way of organizing feminist legal activism, these essays nonetheless have much to offer equality proponents and skeptics alike.
Hunter's introduction is brief and simply sets the stage for the quizzing of equality that is to follow. Both formal equality and substantive equality—two notions that are standard fare in Canadian constitutional conversations—come in for criticism. Yet, as Hunter notes, the resulting gallimaufry of other ideas about the content of equality has fragmented and complicated the discussion. Each use carries its own problems and contradictions. The result is a debate around how and where to claim equality that is rich but also equally confounding. And, despite so much equality talk, women's inequalities remain significantly unresolved. As an upshot of this notion, a number of theorists advocate a shift away from a focus on equality.
Hunter's own chapter later on in the book, which is entitled "Alternatives to Equality," suggests such a shift in relation to feminist pay equity and legal aid strategies. Hunter begins by arguing that equality has powerful rhetorical value yet descriptive and normative limitations. There is wide acceptance that inequality is bad and that equality is desirable, but there is little agreement about what counts as in/equality and even less about how it is to be fixed. The challenge, then, is to state a frame that is both persuasive of the existence of a problem and that packs a rhetorical and normative punch. Hunter argues that the notion of [End Page 277] "undervaluation" better suits pay equity campaigns and that "policy neglect" is more strategic in relation to achieving the expansion of legal aid. Both, she argues, avoid the pitfalls of comparison between men and women and better engage neo-liberal values.
Other chapters use specific law reform contexts to detail the reduction of equality arguments into a frustrating debate over sameness versus difference, a debate that derails more subtle feminist proposals. Heather Douglas, for instance, in "The Demise of the Provocation Defence and the Failure of Equality Concepts," is ambivalent about the effectiveness of equality concepts in changing the provocation defence in criminal law to be more gender fair. Douglas argues that reform has been stuck in the debate over sameness/difference with the result that the worst of both worlds is in place—faulty neutrality and the cementing of detrimental deviance. There is formidable opposition from the forces of formal equality in legal culture to the necessary expansion of equality formulae.
Susan Boyd's chapter, "Is Equality Enough? Fathers' Rights and Women's Rights Advocacy," does a good job of placing child custody law in its larger socio-economic context, arguing that the law reform debate over this area of Canadian law implicates not only gendered issues of caregiving but also ideological splits over public and private responsibility. Like Hunter, Boyd asks if equality arguments to date have been effective in encompassing necessary issues around material/economic relations and notes that the language of equality has been co-opted by older and discriminatory politics that then appear to compete...