The most obvious meaning for equality is formal or symmetrical equality, which requires that like cases be treated alike, with a focus on consistent treatment of individuals rather than on achieving any particular outcome1. This was the predominant theoretical equality model from the end of the Second World War until the end of the 1960s2, and is the most widespread understanding of equality in existence3, which tends to manifest itself in most anti-discrimination law, usually in the form of direct discrimination.
In practical terms, a formal approach to equality disfavours arbitrary decision-making processes, such as when policies or people selectively disadvantage due to a particular irrelevant trait4, and it merely requires the judiciary to apply laws equally to all without further examination of the particular circumstances or context of the individual or group and consequently, the content of the law under review5. To determine if formal equality’s imperative is met, a statute’s words are examined to see whom it covers, and then the law is administered equally to everyone. Generally speaking, there is no consideration of people’s social context, or the law’s content, to determine whether the law promotes equality. Rather, the focus is on the process of applying and enforcing the law, and determining whether everyone covered by the law is treated in the same manner. As with the first variant of formal equality, this version involves a narrow compass of inquiry. Its range is the justice system, not the context of people’s lives6.
This approach in essence protects against defects being introduced into the decision-making process, and ensures that irrational and unfair decisions based on arbitrary criteria are kept out. Furthermore, it prevents the harm which may occur from any arbitrary decision-making process, by permitting the person the opportunity to secure a benefit which may otherwise have been denied7. The supposed value of the neutrality of formal equality is merely an illusion, as it is questionable whether the law, legislature and the judiciary can claim to be truly neutral to all parties8, and in turn, by masquerading as an independent norm, it blinds us to the real nature of substantive rights and creates a dichotomy between human rights and equality, wherein both principles appear to operate independently rather than in combination with one another9.
What appears common to a model of formal equality is the belief that social structures are a constant and should not be changed, and that any difference10 in opportunities for participation in society associated with an individual’s personal characteristic must therefore be overcome by disassociating themselves or by accepting the difference in their opportunities11, or to paraphrase Fredman: “the price of equal treatment is conforming to the norm”12. Thornton further elaborates that those who are most like what she refers to as ‘benchmark men,’13 may be ‘let in,’ as their proximity to the ‘norm’ allows the boundary between the norm and other to be expanded a notch or two without causing undue instability14. In this context, difference is perceived as something that is an individual or group trait rather than something that arises from the relationship between two groups and contingent on the perspective of the person labelling such difference15. The practical effect of this is judicially-imposed determinations of a particular individual or group’s true or actual characteristics which may have been unsubstantiated and stereotypical assignments of sameness and difference16.
In essence, therefore, formal equality suggests that a Deaf individual, in order to be treated equally, has to become ‘hearing’ and assimilate or emulate hearing culture instead of embracing Deaf culture, or at the very least conform with mainstream society and keep their Deaf identity a matter for their private and family life. If they are not prepared to do so, then they must accept that they are unable to avail themselves of the various opportunities presented to them. Thornton further criticises formal equality’s failure to consider the complex variables that can constitute one’s identity, as to complain formally of discrimination requires complainants to stress a single facet of their identity at the expense of others17. Individuals should instead be treated according their own qualities and merits and not on the basis of detrimental stereotypes that may be attached to them18. Essentially, this imposition can lead to powerful conformist and assimilationist pressures19, as we have seen with dominant culture and disability discourses’ impact on the Deaf-World.
Overall, Ventegodt Liisberg argues that formal equality is relatively simple and therefore potentially easy to implement, although it does not address structural disadvantage and therefore does not provide a foundation for prohibiting indirect discrimination nor does it allow for positive action20. Most importantly, perhaps, is the fact that it provides an overly simplistic basis for integrated and comprehensive non-discrimination laws and measures bearing in mind the richness and complexity of modern life and modern social relations21. Thus, it is widely recognised that a formal approach has failed to eliminate entrenched structural, social and economic inequality and that a different approach is required in order to tackle the roots of inequality22.
- Lucy Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief’ (2011) 31(1) Legal Studies 135, 147
- Bob Hepple, Equality: The Legal Framework (2nd edn, Hart Publishing 2014) 21.
- Equal Rights Trust, ‘The Ideas of Equality and Non-Discrimination, Formal and Substantive Equality’ (2007) http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf accessed 27 April 2017.
- Claire 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, 168.
- Donna Greschner, ‘Does Law Advance the Cause of Equality?’ (2001) 27 Queen’s Law Journal 299, 303.
- Equal Rights Trust (n 3).
- This viewpoint is associated with Critical Legal Theory, which claims that some kind of pre-knowledge will invariably bear directly on legal decision-making, even though legal judgments derived from that knowledge appear to be objective in nature. Dennis Patterson, ‘Critical Legal Theory’ (Lecture Materials in Contemporary Anglo-American Jurisprudence 04-05, Università di Trento).
- The word ‘difference’ is essentially the difference between ‘normal’ people and, in a wider context, anyone who is not considered ‘normal.’
- Maria Ventegodt Liisberg, Disability and employment: a contemporary disability human rights approach applied to Danish, Swedish and EU law and policy (Intersentia 2011) 24.
- Sandra Fredman, ‘Providing Equality: Substantive Equality and the Positive Duty to Provide’ (2005) 21 South African Journal on Human Rights 163, 166.
- That is, men who are white, heterosexual, able-bodied, and the invariable comparators in discrimination complaints. Margaret Thornton, ‘Domesticating Disability Discrimination’ 2 International Journal of Discrimination and the Law 183, 184.
- ibid 195.
- Barclay (n 5) 168.
- Thornton (n 13) 184.
- Iris M Young, ‘Status Inequality and Social Groups’ (2002) 2(1) Issues in Legal Scholarship 6, 11.
- ibid 9.
- Ventegodt Liisberg (n 11) 23.
- Equal Rights Trust (n 3).
- Evadné Grant, ‘Dignity and Equality’ (2007) 7 Human Rights Law Review 299, 299.