Substantive Equality, Reactionary Law And The White Male Norm
For many people in Canada, the legal system is a passive entity, their only interaction with it occurs when a conflict arrises. It has become evident through the readings and discussions in class that the less interaction or conflict with the law one faces, the more privilege they hold. This has become an important focus for feminists, who have been trying to change the law from being a passive entity to a proactive agent that will aid in reaching substantive equality. Instead of using the law as a reactive tool, in order to advance women’s rights feminists also aim to make the law an active tool to create substantive equality, while changing legal discourses to include a holistic examination of inequalities.
“Gender Neutral” And “Racially Blind” Law
Although feminists have made great achievement since the start of the Second Wave, inequalities still exist and are prevalent in the functioning of the legal system (Minaker and Snider, 2009, 173-174). Popular culture and dominant systems of knowledge view these achievements as gender inequality no longer being prevalent. “Gender neutral” laws, like “racially blind” laws are justified as an effective way to create equality through this hegemonic idea that equality is being reached. Feminists have been challenging these hegemonic beliefs in order to change how law is used to achieve substantive equality rather then formal equality. Formal equality focuses on the application or rule of law, which requires that people be treated the same, regardless of the material and social conditions which create inequalities (class notes, October 13th, 2010). To advocate for women’s rights, feminists have made the claim that applying the same “rules” to everyone does not result in equal treatment, because this method does not take the consequences of these laws into effect.
Substantive equality is different from formal equality because it takes the outcome of law into account, while also trying to account for context, such as the gendered biological or socially constructed differences which lead to unequal treatment. An example of how formal or gender neutral laws do not result in equality, is outlined in the CEDAW (Committee on the Elimination of Discrimination against Women) principles for substantive equality, which states that “neutral policies may disadvantage women who may be in a weak position because of the effect of past discrimination (CEDAW, 6).” Further CEDAW describes that current laws, in the attempt to be formal or gender neutral do not recognize this disadvantage further enforcing inequalities by not addressing past discrimination (CEDAW, 6). For feminists using law to advance women’s rights, examining how changing the legal system is an important factor in trying to create equality. By arguing that gender neutral laws do in fact enforce equality, the legal system can be thought of as working differently to chance laws to become contextualized in order to acknowledge past disadvantages, and present biological and socially constructed differences which create inequalities.
Further, to achieve women’s rights by using the the legal system, laws need to change from the current system of reactionary to a new system of proactive policies. Working within the current legal framework, the result of feminist activism has created policies or laws that punish violators of women’s rights. These reactionary laws, such as taking an abused woman out of her abusers home, or arresting the abuser, deal with the violation of the woman’s rights after the fact, instead of dealing with the social inequalities that attribute to violence against women (Newman and White, 2009, 194). In this system, threat of punishment to the abuser is the only motivation to stop the violation of women’s rights. This method of law relies on a persons fear of punishment, rather then teaching people to stop the systems of power that create inequalities. In order to advance women’s rights laws should be used to prevent power inequalities through proactive policies which legally enforce people to recognize these power inequalities which disadvantage women. CEDAW’s principle of non-discrimination parallels this idea, stating that equality “…is based on the understanding that discrimination is socially constructed and that it is not an essential or natural principle of human interaction. This recognizes the need and paves the way for concerted action against inequality and the institutionalized mechanisms which perpetuate it (CEDAW, 5-6).” CEDAW’s principles for substantive equality demonstrate that the reactionary method of the Canadian legal system allows discrimination to be viewed as a natural human condition by not trying to change the social constructions that lead to violence and inequalities. CEDAW also makes the claim that once the acknowledgement of flaws in the legal system occurs, institutions and social constructions which systemically perpetrate inequalities can be changed.
Framing and Dichotomous Thinking
When feminists engage in the legal system in order to advocate for women’s rights they are forced to participate in the discourses formed by the legal system, which are heavily dichotomous. Although much of feminist activism has included the prevention the use of dichotomies, they are forced to engage with this dominant discourse under the law. Dichotomous thinking prevents a holistic examination and understanding of gender inequality, which perpetrates inequalities within the legal framework. One of the most predominant examples of this is the “pro-choice” vs “pro-life” discourse which has been trying to shape and control women’s reproductive rights. Feminists advocating for women’s reproductive rights get trapped in this discourse which fails to recognize larger more problematic issues at hand that are effecting women’s ability to make choices regarding their sexuality and reproduction. harms women’s rights is even though it is currently legal in Canada for women to obtain an abortion dichotomous discourses are preventing their full access to abortion services. Legally, women have the “choice” of whether or not to carry their pregnancy to term. What this discourse fails to recognize and include is that women simply being able to make the choice legally to obtain an abortion does not go far enough in order to ensure this choice is carried out. For example the Canadian Abortion Rights Action League finds that nationally in Canada, only 17.8% of Canadian Hospitals provide abortion services (CARAL, 228). This demonstrates that although legally women can obtain an abortion, there are not services to support her choice. Further then simply having more hospitals offer the service, other conditions need to be in place to support women having an abortion, such as economic, physical and psychological help to make the process less alienating and painful.
Another example of how legal discourses form dichotomies which influence women’s rights is in the rise in popularity of the issue husband abuse. Minaker describes the rise in advocacy toward spousal abuse as a gender neutral experience, where as husband abuse is in the forefront is a part of the backlash against feminist gains in women’s rights (Minaker, 2009, 172). She further claims that this recent advocacy toward spousal abuse as a gender-neutral phenomenon has become a part of dominant cultural knowledge and is being instituted legally. The idea that men are victims of partner violence as much as women forces the feminist debate to be constructed around which gender is more victimized from intimate partner abuse, instead of examining systemic influences which create unequal power relations that lead to violence, from occurring. This forces the law’s centered around abuse to work within a discourse of victim vs. abuser, creating a dichotomy which prevents the understanding of power relations which produce violence. By redirecting legal discourses away from dichotomies, advocating for women’s rights under the law will take on different discourses which will allow for a holistic and better understanding of the issues facing women, therefore leading to better solutions to create gender equally.
The Ability To Subvert
Advocating for women’s rights under the law requires changing the legal system itself to be more contextualized and to recognize individual experiences, while changing how laws are applied and understanding the legal discourses which shape public policy. Advocating for women’s rights under the current legal frameworks would require homogenization of feminist’s struggle with the system which is responsible for women’s inequality. In order for real change to occur, leading to gender equality to occur this legal system needs to change altogether to reach a different level of equality. Gale MacDonald reflects this idea through the works of Miles in her essay The Meaning of Equality, when she states “the concept of equality appreciated by the courts is based on an explicit acceptance of the male norm and she advocated rethinking equality in the law altogether (MacDonald, 1999, 156).” This idea reiterates how working within the current legal frameworks will not lead to full gender equality but would only continue to work with a definition of equality that is based on the white male norm. After acknowledging that working within this framework to achieve gender equality will not create substantive equality, a new system of law that is proactive, inclusive and contextualized to a variety of experiences and material conditions must be implemented. this would change how law is thought of, in terms of its involvement in people’s lives, how children are educated in school through progressive policies and charter which has a focus on achieving equality not in how law is applied, but in the results in the laws and policies.