Sandra Fredman

Changing the Norm: Positive Duties in Equal Treatment Legislation

This paper assesses the emergence of a new proactive model to achieve gender equality, and compares it with the more established complaints-led model based on individual rights. While transcending many of the weaknesses of the individual complaints model, the proactive model remains ambiguous in many crucial respects, particularly as to its objectives, its use of participation, and how compliance is to be achieved. The paper aims to shed more light on these key aspects by drawing on the experiences of such models in Canada, Northern Ireland, Britain, and the EU itself. This demonstrates that the location of proactive strategies on the borderline between law and politics makes them highly dependent on political will. The key challenge is therefore to ensure that proactive strategies are based on a recognition that equality is a fundamental right, not a discretion, without reverting to individualised complaints mechanisms with all their inbuilt weaknesses. I conclude by considering how we might achieve a fundamental and non-derogable core of rights within a proactive model.

Providing equality : substantive equality and the positive duty to provide

Abstract One of the key insights of substantive equality is the recognition that it is not colour, gender or some other group characteristic per se which is at issue, but the attendant disadvantage. This focus on disadvantage means that, for substantive equality to be effective, it should include a positive duty to provide. This in turn moves the anti-discrimination agenda onto the uncertain frontier between policy and law. This poses a difficult set of challenges for judges. The political arena is frequently seen as the primary space for developing the positive duty to provide; a space which judges are reluctant to invade. In some jurisdictions the result has been a definition of substantive equality which defers to the state by protecting it from having to justify distributive decisions. On the other hand, the role of reasoned explanation is considerably enhanced when courts are dealing with socio-economic rights. It is argued that the way forward is not judicial deference but judicial intervention which supports rather than usurps the decision-making powers of elected representatives. This is achieved by insisting on reasoned justification for distributive decisions burdening or excluding disadvantaged groups. In this way courts contribute to the democratic process, both by strengthening accountability and by ensuring that political deliberation includes those who would otherwise be silenced in the political arena.

Redistribution and recognition : reconciling inequalities

Abstract This paper examines the traditional dichotomy between measures addressing socio-economic inequalities and those aimed at inequality based on status, such as race, gender, disability or sexual orientation. Using the conceptual framework of recognition and redistribution developed by Nancy Fraser and others, I argue that it is no longer tenable to keep the two spheres separate. Constructing a concept of socio-economic equality without considering the implications for status-based inequality can be damaging andineffective. Conversely, status-based measures are limited by their inability to mobilise the redistributive measures necessary to make real equality of opportunity and genuine choice possible. The paper begins by examining the interaction between socio-economic and status-based equality. I then sketch out a multi-dimensional notion of substantive equality which attempts to create a synthesis between the aims of both spheres. In the final part, I make some very tentative suggestions as to how the interpenetration can be more meaningfully captured in legal frameworks.

Engendering Socio-Economic Rights

Abstract Socio-economic rights and equality have the potential to form a powerful partnership. However, the precise relationship in the context of gender remains controversial. In this article, I argue that simply extending socio-economic rights to women is not sufficient. This does little to address the gendered nature of social institutions and structures. Instead, socio-economic rights should be ‘engendered’ or infused with substantive gender equality. This article develops this argument first by developing a multi-dimensional understanding of substantive equality, and then analysing the effect of such an understanding on the characterisation of the right itself. Engendered socio-economic rights aim to take account of the power relations in which rights are exercised, in order to enhance the set of feasible options open to women, while at the same time supporting the values of interdependence, solidarity and care, whether or not based on choice. In the final part, I consider how this approach might inform the interpretation of equality and socio-economic rights in selected human rights instruments. At both regional and international level, there is scope for interpreting equality either as an add-on to rights, or as a means of engendering socio-economic rights. I suggest that the latter gives a richer and more effective way of taking equality and socio-economic rights forward.

Transformative Equality: Making the Sustainable Development Goals Work for Women

It is generally agreed by most observers that the Millennium Development Goals (MDGs) have fallen short of achieving gender equality and womens empowerment. Today, women continue to be more likely than men to live in poverty, and more than 18 million girls in sub-Saharan Africa are out of school. One of the crucial reasons for the failure of the MDGs in relation to women was their inability to address the deeply entrenched and interlocking factors that perpetuate womens disadvantage. The new Sustainable Development Goals (SDGs), as articulated in the 2030 Agenda for Sustainable Development, constitute an improvement over the MDGs. Goal 5, which enshrines the stand-alone goal on gender equality, is comprised of nine specific targets, including the elimination of gender-based violence and access to reproductive health. In addition, gender equality is mainstreamed into numerous others goals. Given that the global community is now poised to implement the SDGs, the challenge is how best to integrate a transformative approach into the planning, implementation, and delivery of the specific targets so that the SDGs contribute to achieving gender equality and womens empowerment.

Reversing roles: bringing men into the frame

The attempt to secure maternity rights has been a major focus of decades of campaigning for womens equality. However, it is of concern that maternity rights might reinforce womens responsibility for childcare. This paper considers how we bring men back into the frame, through a critical assessment of the contrasting approaches in Europe and the US to claims by fathers for parenting rights. It is argued that the goal of equal participation of women in the workplace needs to be matched by equal participation of men in the home. This is only possible if the conception of equality is shaped by a conscious and explicit commitment to the social value of parenthood. Substantive equality can only be genuinely furthered if pregnancy and parenthood are appropriately distinguished. Whereas pregnancy is unique and should be treated as such, a true application of substantive equality requires a ‘levelling up’ option, extending womens parenting rights to fathers.

Introduction : substantive equality, social rights and women : a comparative perspective

Developed, developing, and transitional countries are all marked, to different degrees and in different ways, by deep inequalities of gender, race, disability, religion, sexual orientation, and other fault-lines of prejudice, disadvantage, and exclusion. In many countries, equality legislation initially sought to free individuals from the negative effects of these group characteristics, believing that in a colour-blind and gender-neutral world individuals could thrive and develop their potential free from stereotypical assumptions.