Kuyen and French suggest that “if formal equality was about ignoring difference, a universality approach is about expecting difference.” 1 In other words, there is no single norm against which all others are compared in order to evaluate whether a characteristic is relevant and can warrant different treatment2. Transformative equality was first sparked by pressures from United States and Irish Catholic activists who wanted to promote fair representation in Northern Ireland, and was based on American models, and eventually manifested itself in the imposition of positive duties on public bodies3.
Hepple argues that while substantive equality affords opportunities to people who have in the past been disproportionately excluded, without disturbing the underling social framework that denies them genuine choice and generates inequitable outcomes, transformative equality is aimed at the dismantling of systemic inequalities and the eradication of poverty and disadvantage, which involves ensuring an ‘equality of capabilities,’ enabling people to have the skills they need to participate in society, to engage in productive activities and to participate in decision-making. The measures needed to achieve this include a positive role for institutions in removing barriers, and in ensuring that those who need more resources than others get them, that is, an element of redistribution, and it also entails the development of opportunities which allow people to realise their full human potential within positive social relationships4. Fredman goes further by arguing that transformative equality implies a strong link between substantive equality and social and economic rights5.
However, substantial disagreements still exist as to which jurisprudential or philosophical theories best encapsulate and describe these aspirations. In particular, dispute exists as to the extent to which these transformative ambitions should be stretched. How far should legal regulation be utilised to alter existing practices, concepts of merit, and the freedom of action of individuals and corporations? Considerable disagreement also exists as to what extent should group differences be institutionalised within law and policy, and in particular to what extent should religious sensitivities, different beliefs, and differences between different ethnic groups be reflected in legislation, policy and state practice. In other words, two areas of stark and often passionate disagreement exist: how much social engineering should be conducted via equality and anti-discrimination law, and how much group differentiation should be institutionalised?6
O’Cinneide argues that there has been a greater recognition of the transformative aspirations inherent in concepts of equality, and a willingness to introduce some legal mechanisms that attempt to transform policies and practices that may have discriminatory effect7. However, the transformative potential of this new framework is finite and limited. To give it full effect, anti-subordination approaches may need to be adopted, and serious debates remain to be had about how far should the transformative dimension of equality norms be applied8.
In order to understand how transformative equality manifests itself, it is necessary to the impugned act within real life conditions and understanding how these reinforce both disadvantage and harm9. In practical terms, O’Cinneide suggests that this can be achieved by first examining the socio-economic conditions of the individuals and groups concerned, and second, identifying the impact of the impugned provision on social patterns and systemic forms of disadvantage. Finally, the grounds of discrimination should be looked at in an intersectional manner in order to ascertain the complex and compounded nature of group disadvantage and privilege10.
In terms of conceptions, a number of writers have developed thinking about equality based on inclusion and participation. Fredman identifies a vision of equality based on the need to allow all groups an equal set of alternatives from which they can pursue their own version of a good life. She suggests that equality law should aim at a number of ends, such as breaching the cycle of disadvantage associated with out-groups, as well as promoting respect for the equal dignity of all and redressing stigma, stereotyping, humiliation and violence because of membership of an out-group, and affirming community identities. In effect, this vision embraces both recognition and redistribution and represent each of the precepts of equality presented in this chapter. She adds an additional aim, however, which is to facilitate full participation in society11. It is argued that these approaches are in effect, a holistic way of dealing in inequalities.
In terms of whether transformative equality is present in UK law, O’Cinneide has stated quite clearly that the UK does not have transformative equality12. However, O’Cinneide, together with Bamforth and Malik, previously argued that there is a need to transform existing social norms so disabled people can be provided with genuine opportunities for self-realisation, and that the Disability Equality Duty13 had considerable potential for making a difference to how disabled persons are treated by public authorities14. This suggests, therefore, that the imposition of general equality duties on public authorities is evidence of a transformative approach to equality. This is further supported by Hepple, who believes that the EqA 2010 contains elements of transformative equality in its extended positive duties on public authorities15, although he recognises that there are still major gaps in the Act and that a move towards legislation based on transformative equality is still necessary16. Petrova agrees, and argues that transformative equality also extends to positive action17.
It appears that while transformative equality is an as yet largely undeveloped precept of equality, inasmuch as the focus tends to be the difference between the formal and substantive models of equality, academics have alluded to transformative equality under a different heading. For example, Vendegodt Liisberg suggests that the last model of substantive equality is also known as the “proactive model,” the “multidimensional disadvantage model,” and the “diversity equality model.” She also refers to equality of results18.
In relation to the diversity equality model, it underlines a positive and inclusive perception of human difference, and has an asymmetrical approach to achieving equality which recognises uneven distribution of power, privilege and disadvantage among different groups in society 19. What is key to our argument that the diversity equality model is in fact transformative is that its measures to even out disadvantage are not seen as an exception to the rule of identical treatment, and is actually forward-thinking and aims to change general structures in society so that they reflect the equal rights of different groups in society. Thus, society is diverse and general structures must reflect this 20. This model also does not rely mainly on individual claims to bring about change, but leaves the principal initiative with policy makers and implementers, providers of goods and services, employers and others, although individual rights should still be a necessary part of this approach as fall-back rights to be used if general structures are not changed to ensure full inclusion 21.
This leads us to consider the weaknesses of the transformative approach. An obvious weakness is the reliance on policymakers to amend existing social structures, thus relying on their goodwill 22, which is no easy undertaking bearing in mind the strength of dominant discourse as outlined in Chapter 2. How this would work in practice would be to broaden the idea of what is normal, thus broadening the range of ‘normality’ and amending general social structures to reflect this norm 23. It is recognised that in some instances, it may be necessary to define some persons as disabled and some as non-disabled, but such a definition should not be a given 24. For such a dramatic undertaking to occur, there would need to be a seismic shift in society’s attitudes, and it is not entirely clear how this could be achieved.
In a similar guise to that of formal equality and substantive equality, there appear to be some overlap between substantive and transformative equality, it is to these intersections we now turn. Fraser explains that the most distinguishable difference between substantive and transformative equality is that substantive equality seeks to correct injustice without disturbing underlying social structures, while transformative seeks to correct injustice by reconstructing the social structures25. Fraser believes that whilst substantive equality would redress maldistribution through income transfers, relying heavily on welfare, transformative equality would redress unjust distribution at the root, by transforming the framework that generates it, hence that it would be a cheaper and more effective way of achieving true equality26. The advantage of Fredman’s substantive equality approach against is that it places the transformation of social structures front and centre in its account of what a coherent equality approach should aim to achieve. This account of equality norms is perhaps closer to their inherent aspirations and underpinning logic than the language of social inclusion, even if it does not always reflect their often limited impact in practice27.
Young argues that transformative is preferable to substantive as the substantive distributive paradigm focuses on the allocation of material goods, it ignores social structures such as decision-making power, the division of labour and culture, or the symbolic meanings attached to people, actions and things. Instead, she argues, the focus should be on structures which exclude people from participating in determining their actions28.
- As cited in Maria Ventegodt Liisberg, Disability and employment: a contemporary disability human rights approach applied to Danish, Swedish and EU law and policy (Intersentia 2011) 48.
- Bob Hepple, ‘The New Single Equality Act in Britain’ (2010) 5 The Equal Rights Review 11, 13
- Cathi Albertyn and Beth Goldblatt, ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 South African Journal on Human Rights 248, 249.
- Bob Hepple, Equality: The Legal Framework (2nd edn, Hart Publishing 2014) 28-9.
- Colm O’Cinneide, ‘Fumbling Towards Coherence: the Slow Evolution of Equality and Anti-Discrimination Law in Britain’ (2006) Northern Ireland Legal Quarterly 57, 64.
- ibid 65.
- ibid 101.
- ibid 262.
- ibid 262.
- Lucy Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief’ (2011) 31(1) Legal Studies 135, 153-4.
- Colm O’Cinneide, ‘Equality: Current and Future Directions of Travel’ (The Equality Act 2010: five-years on, Chester, 2015).
- This was introduced by the Disability Discrimination Act 2005, and later replaced by the Public Sector Equality Duty in the Equality Act 2010.
- Nicholas Bamforth, Maleiha Mailk and Colm O’Cinneide, Discrimination Law: Theory and Context, Text and Materials (Sweet & Maxwell 2008) 1100.
- Hepple (n 5) 1.
- Bob Hepple, ‘The New Single Equality Act in Britain’ (2010) 5 The Equal Rights Review 11, 21.
- Dimitrina Petrova, ‘From Prohibiting Discrimination to Transformative Equality in Employment’ (2015) 15 The Equal Rights Review 5, 9.
- Vendegodt Liisberg (n 1) 47.
- ibid 48.
- ibid 49.
- Nancy Fraser and Axel Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (Verso 2003) 74.
- Nancy Fraser, ‘From Redistribution to Recognition? Dilemmas of Justice in a ‘Post-Socialist’ Age’ (1995) 212(1) New Left Review 68, 68.
- O’Cinneide (n 6) 64.
- Irene M Young, Justice and the Politics of Difference (Princeton University Press 1990) 16.