What is equality law?

This post is the second part of a series considering why equality law and Deaf people don’t get on.

Before an attempt to examine why Deaf people need equality, it would be prudent to explore what ‘equality’ is. Various academics have attempted to provide an overview of what ‘equality’ is, and it is these that we turn to for initial guidance in this exploration of equality law. When Weston published his book in 1990, he noted that his book was one of 30 to 40 books on equality that were expected to be published in English that year, following the publication of 370 books about equality in the decade from 1978 to 19871.

In an attempt to bring these figures up to date, a search of the British Library Catalogue2 reveals that almost 2,000 books from 1997 onwards have been published to date on the subject of equality in some shape or form, 1,500 of which were published after 20023. Thus, we will attempt to explore some of the general concepts of equality and then consider the various strands that flow from these concepts that have been highlighted as particularly relevant to Deaf people.

When one reads the word ‘equality’, it is usually mentioned as part of concepts such as ‘discrimination’, ‘disadvantage’, ‘prejudice’, ‘understanding’, ‘distribution’ and ‘justice’, or as ‘equality of opportunity’ or ‘equality of outcome’. A literature review also reveals terms such as ‘liberty’4, ‘difference’5 and ‘dignity’6. It can be either ‘symmetrical’ or ‘asymmetrical’; ‘formal’, ‘substantive’ or ‘transformative’; ‘pluralist’, ‘egalitarian’, ‘libertarian’ or ‘utilitarian’.

Let us start with the word ‘equality’. It has been suggested rather than equality, we should think in terms of equalities in recognition of the fact that no single understanding of equality is complete7, as while people appear to share the concept of equality, they have very different conceptions of it8.

Indeed, McIntyre J, speaking for the Supreme Court of Canada in Andrews v Law Society of British Columbia9 remarked that “more than any of the rights and freedoms, [equality] lacks precise definition”. Iacobucci J explained that one of the difficulties in defining the concept of ‘equality’ is the abstract nature of the word and the similarly abstract nature of words to describe them, and that part of the difficulty stems from its exalted status10.

McLachlin argues that there are a number of reasons for this conundrum: equality language is in itself rather general, which can result in concepts that are not quite comprehensive enough leaving them open to interpretation from jurisdiction to jurisdiction11. What equality means is subjective and will depend on the conceptualiser’s view of society and what it should be, leading us to question whether the courts can make the best decisions12. Finally, the competition between various out-groups for rights makes it impossible to achieve absolute substantive equality, as it is beyond the resources of society and the law to place everyone in exactly the same position of relative advantage and disadvantage13.

So then, how can equality be achieved if its very concept is not clear? A possible answer is to consider two main forms of equality which arguably provide the means of achieving it: substantive and formal, and before considering how equality can be achieved for Deaf people, it is necessary to explore what principles or values are associated with each of these main forms of equality.

  1. P Westen, Speaking of Equality: An Analysis of the Rhetorical Force of Equality in Moral and Legal Discourse (Princeton University Press 1990) 59. []
  2. The British Library was chosen for this exercise given that it has almost 57 million items in its Main Catalogue. []
  3. British Library, ‘Explore the British Library’ [http://explore.bl.uk/] accessed 20 September 2015. []
  4. D Hellman, ‘Equality and Unconstitutional Discrimination’ in D Hellman and S Moreau, Philosophical Foundations of Discrimination Law (Oxford University Press 2015) 2. []
  5. C Barclay, ‘Towards Substantive Equality: A Feminist Critique of the Notion of Difference in the Canadian and South African Equality Tests’ (2001) 5 International Journal of Discrimination and the Law 167, 167. []
  6. C McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655. []
  7. L Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief’ (2011) 31(1) Legal Studies 135, 147. []
  8. Westen (n 1) xv. []
  9. [1989] 1 SCR 143, [164]. []
  10. Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497, [507]. []
  11. BM McLachlin, ‘Equality: The Most Difficult Right’ (2001) 14 Supreme Court Law Review 34. []
  12. ibid 20. []
  13. ibid. []

Rob

Deaf, hubby to Rachel, dad to Corey, Libby and Emily, Solicitor, Lecturer in Legal Practice at University of South Wales, PhD student at University of Leicester.

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