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Substantive equality revisited

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Sandra Fredman*

The limitations of a formal interpretation of the right to equality are now well recognized.
However, the meaning of substantive equality remains deeply contested. This article argues
that the right to substantive equality should not be collapsed into a single formula, such as
dignity, or equality of opportunity or results. Instead, drawing on familiar conceptions, a
four dimensional approach is proposed: to redress disadvantage; address stigma, stereotyp-
ing, prejudice, and violence; enhance voice and participation; and accommodate difference
and achieve structural change. This reflects the principle that the right to equality should be
responsive to those who are disadvantaged, demeaned, excluded, or ignored. The four-dimen-
sional approach is deliberately framed in terms of dimensions, to permit us to focus on their
interaction and synergies, rather than asserting a pre-established lexical priority. Drawing
attention to all the dimensions and insisting on building complementarities can move us posi-
tively towards furthering substantive equality. Conflicts should be addressed by referring to
the whole framework, to create a synthesis rather than prioritizing. It is thus not a definition,
but an analytic framework to assess and assist in modifying laws, policies and practices to
better achieve substantive equality.

1. Introduction
The right to equality is a central commitment in human rights law. The aspiration
towards equality resonates powerfully in the preambles of a multiplicity of human
rights instruments and domestic constitutions, and the right to equality and non-­
discrimination are invariably among the core rights enumerated in these instruments.
Yet the meaning of the right to equality is deeply contested. Westen for one argues
that “equality is an idea that should be banished from moral and legal discourse as
an explanatory norm.”1 For others, the right to equality does not go far enough.
Even if equality before the law has been established, disadvantage persists, and this

* Rhodes Professor of the Laws of the British Commonwealth and the USA, Oxford University;
Professorial Fellow of Pembroke College, Oxford; and Director, Oxford Human Rights Hub. Email:
[Link]@[Link]. The author would like to thank Professor Martha Minow for her help-
ful comments on an earlier draft of the paper, Meghan Campbell for her research assistance and all my
students and colleagues with whom I have discussed and debated these ideas over many years.
1
Peter Westen, The Empty Idea of Equality, 95 Harvard L. Rev. 537, 542 (1982).

I•CON (2016), Vol. 14 No. 3, 712–738 doi:10.1093/icon/mow043

 Substantive equality revisited 713

disadvantage tends to be concentrated in groups with a particular status, such as

women, people with disabilities, ethnic minorities and others.2
These concerns have led to the quest for more sophisticated conceptions, moving

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from a formal understanding focused on like treatment, to more substantive con-
ceptions. Both the Supreme Court of Canada3 and the South African Constitutional
Court4 have embraced the principle of substantive equality in interpreting the right
to equality, a trend reflected at international level.5 Nevertheless, the meaning of the
right to substantive equality remains elusive. Scholars, legislators, and judges have
elucidated various core meanings, chief amongst them, equality of results, equality of
opportunity, and dignity. These in turn are reflected to some degree in legal formulae,
such as unfair discrimination, disparate impact or indirect discrimination, reasonable
accommodation and harassment. Meanwhile, in the US Supreme Court, conservative
justices regard substantive equality as highly problematic.6
It is argued in this article that, whereas it is clear that the right to equality should
move beyond a formal conception that likes should be treated alike, a substantive con-
ception resists capture by a single principle. Instead, drawing on the strengths of the
familiar principles in the substantive equality discourse, a four dimensional principle
is proposed: to redress disadvantage; to address stigma, stereotyping, prejudice and
violence; to enhance voice and participation; and to accommodate difference and
achieve structural change.7 Behind this is the basic principle that the right to equality
should be located in the social context, responsive to those who are disadvantaged,
demeaned, excluded, or ignored.
The four-dimensional approach aims at providing an analytic framework to illu-
minate better the multi-facetted nature of inequality and to assist in determining
whether actions, practices or institutions impede or further the right to equality. It is
deliberately framed in terms of dimensions, to permit us to focus on their interaction
and synergies, rather than asserting a pre-established lexical priority. In this way, we
are able to understand the manner in which different dimensions might be used to
buttress one another. Where there are conflicts, or one cuts across another, the ten-
sion might be resolved by referring to the framework as a whole, the aim being, not so
much to insist that one has priority, but to create a synthesis which takes account of
all the dimensions. For example, while dignity should be furthered, this should not be
at the expense of redressing disadvantage. Similarly, affirming difference and identity
should be circumscribed by the need to prevent stigma, stereotyping and prejudice.
It is acknowledged that the boundaries between the dimensions can be fluid; but it is
argued that it is analytically useful to keep them separate.
2
Gwen Brodsky & Shelaigh Day, Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to
Poverty, 14 Can. J. Women & L. 185 (2002).
3
Law v. Canada [1999] 1 S.C.R. 497 (Can.).
4
Prinsloo v. Van der Linde (CCT4/96), [1997] Z.A.C.C. 5 (S. Afr.).
5
The CEDAW Committee, General Recommendation No. 25: On Temporary Special Measures (2004)
CEDAW/C/GC/25.
6
Martha Minow, In Brown’s Wake 30 (2010); Ricci v. DeStefano, 557 U.S. 557 (2009); Parents Involved in
Community Schools v. Seattle School District, 551 U.S. 701 (2007).
7
Sandra Fredman, Discrimination Law (2011); Sandra Fredman, The Future of Equality in Great Britain, EOC
Working Paper Series No. 5 (2002).
714 I•CON 14 (2016), 712–738

The framework does not of course attempt to resolve all of the issues relating to the
right to substantive equality. The aim of the multi-dimensional approach is ultimately
an evaluative one, to provide a set of criteria to determine whether a law, policy, prac-

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tice, or institution is likely to fulfill the right to equality and to point to ways in which
they should be reformed better to do so. For example, social welfare systems based
on conditional cash transfers might appear to advance the material disadvantage of
people in poverty. But do they fulfill the right to substantive equality for women and if
not, how can they be reshaped?8

2. Background and methodology

My concern as a human rights lawyer is with the evolving meaning of the right to
equality in international and domestic human rights law. I do not aim to explicate
a conception of equality in the abstract which would meet the objections of those
philosophers who have attempted to do so. I have always recognized that the choice
between different conceptions of equality is not one of logic but of values or policy.9
My approach is rooted in existing understandings. Although the right to equality is an
open-textured principle, it is not an empty vessel which can contain any meanings one
cares to attribute to it. The concept of substantive equality must build on and develop
existing understandings of the right to equality in the law and literature. But neither
is my aim to find a conception which, in a Dworkinian sense, is the “best fit,” making
sense of the existing principles.10 There are too many conflicting understandings of
the right to equality to find one underlying principle which makes sense of existing
interpretations. The project is therefore rooted in existing understandings, but also
self-consciously participates in the ongoing evolution of a right to substantive equal-
ity. In particular, I argue that the right to equality should be capable of responding to
real wrongs. My aim then is to find and extrapolate from those understandings of sub-
stantive equality which are sensitive to the wrongs experienced by women and other
out-groups on account of their status. Although there is no single consensus, there is
sufficient consensus in relation to some principles to give credibility to the project of
extrapolating from those principles. It is also possible, through ongoing engagement
and discussion, to create new consensuses.11

8
Sandra Fredman, Engendering Social Welfare Rights, in Women’s Right to Social Security and Social Protection
19 (Beth Goldblatt & Lucie Lamarche eds., 2015).
9
Fredman, Discrimination Law, supra note 7, at 2.
10
Hugh Collins, Discrimination, Equality and Social Inclusion, 66 Mod. L. Rev. 16, 42 (2003).
11
For their seminal contributions, see Cathi Albertyn, Substantive Equality and Transformation in South, 23
S. Afr. J. Hum. Rts. 253 (2007); Cathi Albertyn & Beth Goldblatt, Facing the Challenge of Transformation:
Difficulties in the Development of an Indigeous Jurisprudence on Equality, 14(2) S. Afr. J. Hum. Rts. 248 (1998);
Judy Fudge, Substantive Equality, the Supreme Court of Canada, and the Limits to Redistribution, 23 S. Afr.
J. Hum. Rts. 235 (2007); Catharine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987);
Catharine MacKinnon, Reflections on Sex Equality under Law, 100 Yale L. J. 1281 (1991); Catharine
MacKinnon, Gender in Constitutions, in The Oxford Handbook of Comparative Constitutional Law 398
(Michel Rosenfeld & András Sajó eds., 2012). For the UK debate, see Sandra Fredman & Sarah Spencer,
Beyond Discrimination: It’s Time for Enforceable Duties on Public Bodies to Promote Equality Outcomes, 6 Eur.
Hum. Rts. L. Rev. 598 (2006).
 Substantive equality revisited 715

This article draws on comparative legal materials primarily from the US, UK,
Canada, and South Africa, in order to ground the conception of substantive equal-
ity in the experience of four English-speaking countries which have been at the fore-

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front of the development of the right to equality at domestic level. The US, Canada,
and South Africa all have an entrenched constitutional right to equality. The UK
has a sophisticated statutory framework, which is complemented by the EU and the
European Convention on Human Rights (ECHR),12 now incorporated in the Human
Rights Act. In all these jurisdictions, several substantive conceptions of equality have
jostled with the equal treatment principle for prominence. These include indirect dis-
crimination or disparate impact, reasonable accommodation, affirmative action, sys-
temic discrimination, and unfair discrimination.
Although formulated differently, these rights are built around a central core. The
most open ended is the US Fourteenth Amendment, which states simply that “No state
shall . . . deny to any person the equal protection of the laws.” Both Canada and South
Africa have a general equality guarantee together with a more specific prohibition
of discrimination on the basis of a partially enumerated list of grounds.13 Both have
express provision for affirmative action. The UK statutory framework has recently
been consolidated in the Equality Act 2010, which has provision for direct discrimina-
tion, indirect discrimination, reasonable adjustment, and victimization, but only very
limited provision for affirmative action.14 It does, however, include provision for proac-
tive action on the part of public authorities to have ‘due regard’ to the need to promote
equality of opportunity and good relations.15 Article 14 of the ECHR, incorporated
into the Human Rights Act 1998, requires the rights and freedoms in the Convention
to be secured without discrimination on a non-exhaustive list of prohibited grounds.16
The right to equality in international human rights law is generally defined in open-
textured terms. The central covenants simply refer to an obligation on States to ensure
human rights without “distinction,” “discrimination,” “exclusion,” or “restriction” or
“on the basis of equality” in relation to a non-exhaustive list of grounds.
This article addresses the right to equality in relation to particular groups or identi-
ties. It does not enter into the debate about the distinction between the right to equality
and non-discrimination, except to suggest that the differences between them are prag-
matic rather than logical. Most constitutional and international equality guarantees
are expressed in terms of one or the other or both, and different jurisdictions delineate
the distinctions between them in different ways. Nor does the article examine the ways
in which grounds for discrimination are or should be determined. Nevertheless, the

12
European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, in
force Nov. 3, 1953, 213 U.N.T.S. 222
13
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the
Canada Act 1982 (U.K.), c. 11 § 15; S. Afr. Const. 1996, § 9.
14
Equality Act 2010, §§ 13, 19 (U.K.). See further Bob Hepple, Equality: The New Legal Framework (2011).
15
Equality Act 2010, § 149 (U.K.). See Sandra Fredman, The Public Sector Equality Duty, 40 Industrial L.J.
405 (2011).
16
Protocol 12 to the Eur. Ct. H.R. (E.T.S. No. 177), which has not been ratified by the UK applies also to “any
right set forth by law” and proscribes discrimination by public bodies on any of the grounds in the same
non-exhaustive list.
716 I•CON 14 (2016), 712–738

substantive understanding of the right to equality is developed here in a discrimina-

tion context; in other words, to address wrongs experienced particularly on grounds
of gender, race, disability, sexual orientation, etc. as well as the intersection between

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these grounds. Section 3 briefly considers and critiques the central concept of equal
treatment. Section 4 sets out some of the familiar candidates for substantive notions:
equality of results, equality of opportunity and dignity. The advantages and limita-
tions of each of these conceptions point the way to a multi-dimensional understand-
ing, which I set out in Section 5.

3. The equal treatment principle: treating likes alike

The simplest and most ubiquitous statement of the principle of equality is the
Aristotelian formula that likes should be treated alike. The principle that likes should
be treated alike is possibly the most pervasive interpretation of the right to equality,
largely in the form of prohibitions on direct discrimination17 or disparate treatment.
A further manifestation is in the form of the right to equal pay for work of equal value,
which allows a woman to claim equal pay if she is doing work of equal value with a
male comparator in the same establishment.
It is this formulation which is the main target of Westen’s critique.18 Not only do
statements of equality “logically entail (and necessarily collapse into) simpler state-
ments of rights,” but “the additional step of transforming simple statements of rights
into statements of equality not only involves unnecessary work but also engenders
profound conceptual confusion.”19 There is nothing in the formula itself, he argues,
which indicates when two people are relevantly alike, and if they are alike, which
treatment is at issue.20 Once it has been determined that two people are relevantly
alike, the concept of equality becomes superfluous, since this determination simply
states the eligibility requirement for a right. For example, the statement that all citi-
zens have an equal right to vote is identical to the statement that all citizens have a
right to vote. Westen does not, however, entirely dismiss the right to equality. For him,
the equal protection clause in the Fourteenth Amendment has “legal and moral sub-
stance” as an independent right.21 Although he broadly identifies this as the right to
be free from racial injury, he notes that: “Significantly, the courts thus far have failed
to identify the precise sort of injury that the substance of the equal protection clause
is designed to prohibit.”22
This raises the question of what value the principle that likes should be treated alike
might be pursuing. One straightforward possible value is the simple principle of con-
sistency. Once it has been determined that two individuals or situations are relevantly

17
Equality Act 2010, § 13 (UK).
18
Westen, supra note 1, at 540.
19
Id. at 542.
20
Id. at 543–548.
21
Id. at 565–566.
22
Id. at 565.
 Substantive equality revisited 717

alike, they should be treated the same for consistency sake. However, consistency alone
is a minimal value, hardly worthy of the lofty claims of the right to equality. There are
several reasons for this. First, it does not solve the problem of when two individuals are

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relevantly alike, so as to attract consistent treatment. Not every distinction is discrimi-
natory. Governments and individuals classify people into groups for a wide variety of
reasons and many of them are legitimate. It is quite legitimate to distinguish between
high-income and low-income groups for taxation reasons. On the other hand, for
many years it was thought to be legitimate to distinguish women from men, blacks
from whites.23 One of the biggest leaps in twentieth-century struggles for equality was
the recognition that characteristics based on race, sex, color, or ethnic origin should
not in themselves constitute relevant differences justifying inferior treatment. In other
areas, such as sexual orientation, this recognition has still not been fully achieved.
The decision as to when likes should be treated alike is therefore one which requires
recourse to principles outside of the formal equality formula. This has generally been
a result of hard won gains through active engagements with the political process. The
result of such struggles is reflected in the fact that most constitutional or statutory
guarantees include a list of grounds, going some way to addressing the question of
when two individuals are relevantly alike by declaring which characteristics are irrel-
evant to that determination. Thus although the Fourteenth Amendment of the US
Constitution simply declares that “No State shall . . . deny any person the equal pro-
tection of the laws,” other Constitutions, such as the Canadian, South African and
Indian, include a non-discrimination clause which specifies a list of grounds.24 This is
true too for the European Convention of Human Rights (ECHR), EU, and UK.25 Even
in relation to the Fourteenth Amendment, the US Supreme Court has partly filled this
gap by its concept of “suspect classes,” primarily referring to race or alien status.26
This, however, is only part of the solution. Even where it is prescribed that two indi-
viduals are relevantly alike despite their race, sex etc., the equal treatment principle
prescribes only that they should be treated the same. This is even narrower when the
equal treatment principle is expressed as a prohibition on direct discrimination or dis-
parate treatment, which proscribe treatment which is “less favorable” on grounds of
race, sex etc.27 However, to be treated the same might be of little value. This is because
the principle that likes should be treated alike is fulfilled whether the two individuals
are treated equally well or equally badly. Even more problematically, a claim of equal
treatment can be met by removing a benefit from the relatively privileged group (lev-
eling down). In a famous US case, the city of Jackson in Mississippi was ordered to
desegregate its four “whites only” swimming pools, together with the single “blacks
only” pool. Instead, it decided to close down all its public swimming pools.28 It was held
that identical treatment had been applied to both whites and blacks and that therefore

23
Fredman, Discrimination Law, supra note 7, at 67–82.
24
Canadian Charter, s 15; S. Afr. Const., s 9; India Const., 1950, arts. 14–16; Eur. Ct. H.R., art. 14.
25
Equality Act 2010, § 13 (U.K.).
26
United States v. Carolene Products Co., 304 U.S. 144 (1938).
27
See Equality Act 2010, § 13 (U.K.).
28
Palmer v. Thompson, 403 U.S. 217 (1971).
718 I•CON 14 (2016), 712–738

there was no breach of the equality guarantee. Nor could it be said that one group
was treated less favorably than the other on grounds of race. A similar response was
seen in the UK in relation to legislation giving the authorities the power to detain non-

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UK nationals indefinitely without trial if they were suspected of international terror-
ism.29 The House of Lords struck down the legislation on the grounds, inter alia, that it
applied only to non-UK nationals and not to UK nationals who might also be suspected
of international terrorism.30 Since non-UK nationals and UK nationals were “alike”
in a relevant sense, they should be treated alike. The government responded by giving
itself power to issue orders curtailing the liberty (again without trial) of both UK and
foreign terrorism suspects. The principle of like treatment was satisfied by intruding
equally on the liberty of both groups.31
It was this risk that led the majority of the US Supreme Court to avoid the right to
equality when it finally decided to strike down legislation criminalizing homosexual-
ity. Lawrence v. Texas concerned a Texas statute forbidding two persons of the same sex
to engage in specified sexual intimacies.32 As Kennedy J. put it: “Were we to hold the
statute invalid under the Equal Protection Clause some might question whether a pro-
hibition would be valid if drawn differently, say, to prohibit the conduct both between
same-sex and different-sex participants.”33 To avoid such a leveling-down option, the
majority of the Court held instead that the statute constituted a breach of the sub-
stantive right of due process. Raz goes further and concludes that, in the field of dis-
tributive equality, the possibility of a leveling down option demonstrates that equality
cannot have intrinsic value. He argues that belief in the intrinsic value of equality
entails regarding “equality [as] worthwhile even if it means significantly lower level
of realization or instantiation of other values.”34 This only makes sense if the simple
experience of being equal is valuable, a proposition Raz rejects.
The second problem with equality as consistency is that it assumes that the same
treatment is always appropriate. Yet, where there is antecedent disadvantage, “like”
treatment may in practice entrench difference. Thus unequal treatment may be neces-
sary to achieve genuine equality. As Sen has argued: “Equal consideration for all may
demand very unequal treatment in favour of the disadvantaged.”35
It could be argued that the background value is not simply consistency, but merit.
The underlying assumption is that, once characteristics such as race, sex etc. are dis-
regarded, individuals can be treated entirely on their merit. In the US, this takes the
form of the “anti-classification” principle, namely, that individuals should be treated

29
Anti-Terrorism, Crime and Security Act 2001, § 23 (U.K.).
30
A. v. Secretary of State for the Home Department, [2004] U.K.H.L. 56 (HL).
31
Sandra Fredman, From Deference to Democracy: the Role of Equality under the Human Rights Act 1998, 122
Law Q. Rev. 53 (2006).
32
Lawrence v. Texas, 539 U.S. 558 (2003).
33
Id. at 575.
34
Joseph Raz, On the Value of Distributional Equality, Oxford University Legal Research Paper Series Paper
No 41/2008 at 6.; repr. also found in Joseph Raz, ‘On the Value of Distributional Equality’ in Hillel Steiner and
the Anatomy of Justice: Themes and Challenges 22 (Stephen De Wijze, Matthew Kramer, & Ian Carter eds.,
Routledge, 2009).
35
Amartya Sen, Inequality Re-examined (1992).
 Substantive equality revisited 719

on their own merit, regardless of their color or race.36 However, this assumes that
individual “merit” can be considered in the abstract, apart from color, religion, ethnic
origins, gender, or other such characteristic. Yet an individual’s social, economic, and

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political situation is still heavily determined by these very characteristics. The terms
on which merit is judged are often a product of the dominant group: for example,
women’s time spent on child-care is usually ignored in assessing their qualifications
for a job. Thus the basic premise, namely that there exists a “universal individual,” is
deeply deceptive. Ultimately, like treatment can only be judged against the treatment
accorded to a similarly situated comparator, who, far from being universal, is clothed
with the attributes of the dominant gender, culture, religion, ethnicity, or sexuality. It
is not a coincidence that, when we talk of ethnicity, we generally refer to ethnic minor-
ities, rather than ethnic majorities, attributing “normality” to the dominant culture
rather than its own ethnic specificity.
The result is to create powerful conformist pressures. In feminist literature this has
been dubbed the “male norm.” Equality as consistency requires an answer to the ques-
tion: “Equal to whom?” The answer is, inevitably, “equal to a man.” In the powerful
words of Catharine MacKinnon: “Concealed is the substantive way in which man has
become the measure of all things. Under the sameness standard, women are mea-
sured according to our correspondence with man. . . . Gender neutrality is thus simply
the male standard.”37 The assimilationist tendency has also been problematic in the
context of religion and ethnicity. Parekh puts it starkly: “The choice before the minori-
ties is simple. If they wish to become part of and be treated like the rest of the com-
munity, they should think and live like the latter; if instead they insist on retaining
their separate cultures, they should not complain if they are treated differently.”38 The
problem has been particularly acute in respect of pregnancy rights. On a strict view of
equality as consistency, there is simply no appropriate male comparator and therefore
no equality right arises. This difficulty was initially addressed by the unsatisfactory
mechanism of comparing the treatment received by a pregnant woman with that of
an ill man, an approach still current in the US. It was only when the court could move
beyond the idea of equality as consistency and therefore beyond the need for a male
comparator that real progress could be made.39
Even more fundamentally, this assumes that individual identities should be dis-
carded. Yet each individual is constituted partly by group affinities,40 whether it be her
sense of identity, history, affinity with others, mode of reasoning, or expression of feel-
ings. Of course, the major contribution of the right to equality has been its insistence
that an individual should not be subjected to detrimental treatment on the basis of

36
See Reva Siegal, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality
Cases, 120 Yale L.J. 1278 (2011).
37
MacKinnon, Feminism Unmodified, supra note 11, at 34.
38
Bhikhu Parekh, Integrating Minorities, in Race Relations in Britain 1, 2 (Tessa Blackstone, Bhikhu Parekh, &
Peter Sanders eds., 1998).
39
See further Sandra Fredman, A Difference with Distinction: Pregnancy and Parenthood Reassessed, 110 Law
Q. Rev.106 (1994); Sandra Fredman, Women and the Law 234 et seq. (1997).
40
Iris Marion Young, Justice and the Politics of Difference 45 (1990).
720 I•CON 14 (2016), 712–738

negative stereotypes attributed to her because of her race or sex. However, in rejecting
the negative effects of taking group-based characteristics into account, the principle
of equality has assumed that all aspects of group membership should be disregarded.

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Yet, diverse individual identities may be enriching and desired. This demonstrates
that the problem is not the diversity of characteristics, but the detrimental treatment
attached to them. Thus the aim should not be to eliminate difference, but to prohibit
the detriment attached to such difference, preferably by adjusting existing norms to
accommodate difference.
The principle that likes should be treated alike has a further difficulty. A breach of
the right requires showing that Y treated X less favorably than a similarly situated
comparator on grounds of race, sex etc. This in turn means that a breach of the right
to equality can only be made out if a perpetrator, Y, can be found. In the US, this has
been reflected in the further insistence on discriminatory intent for proof of breach
of the equal protection clause of the Fourteenth Amendment.41 In the UK context,
although the courts have adamantly set their face against the need to prove purpose
in a direct discrimination case,42 there is still the need to prove causation: “but for” the
applicant’s protected characteristic, she would not have been treated less favorably. Yet
sexism, racism, and other forms of discrimination extend far beyond individual acts
of prejudice. Such prejudices are frequently embedded in the structure of society, and
cannot be attributed clearly to any one person.

4. Alternative conceptions
One way forward, as Westen suggests, is to abandon equality and opt for substantive
rights. Recognizing its limitations, however, does not necessarily entail abandoning the
concept. Instead, courts and legislatures have moved towards more substantive interpre-
tations of the right to equality. Different conceptions have been developed. While all fall
under the broad umbrella of “substantive equality,” the precise meaning of substantive
equality remains contested. The next section considers several candidates. One broad
approach is to answer the question “equality of what” in a different way. Instead of
equality of treatment, we aim for equality of results or equality of opportunity. A differ-
ent broad approach is to look for substantive values, such as dignity. Section 4 considers
equality of results, equality of opportunity and dignity as candidates for the meaning of
substantive equality. Building on the insights gained from this discussion, Section 5 sets
out a multi-dimensional approach to understanding and applying substantive equality.

4.1. Equality of results

As we have seen, a key limitation of the equal treatment conception is its inability
to address situations in which equal treatment entrenches antecedent inequalities.

41
Washington v Davis 426 U.S. 229, 96 S Ct 2040 (1976) and see Catherine MacKinnon, Toward a Renewed
Equal Rights Amendment: Now More Than Ever, 37(2) Harv. J. L. & Gender 569 (2014).
42
James v. Eastleigh Borough Council [1990] 2 AC 751; R. (on the application of E) v. JFS Governing Body
[2009] UKSC 15 (UK Supreme Court).
 Substantive equality revisited 721

By focusing on results rather than treatment, it is possible to avoid this problem.

Unequal treatment may be permitted or required in order to achieve equal results.
While the equal treatment principle is based on a notion of procedural fairness stem-

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ming from consistent treatment, equality of results is concerned with a fairer distribu-
tion of benefits.43 Thus affirmative action, or preferential treatment of a disadvantaged
group, while apparently breaching the equal treatment principle, is better understood
as furthering equality of results. Similarly, the concept of disparate impact in US law
proscribes neutral practices which nevertheless unjustifiably have unequal impact:
“practices that are fair in form, but discriminatory in operation.”44 By moving from
treatment to results, proof of intent becomes unnecessary. In the seminal case of Griggs
v. Duke Power, the US Supreme Court made it clear that “good intent or absence of dis-
criminatory intent does not redeem employment procedures or testing m ­ echanisms
that operate as ‘built-in headwinds’ for minority groups and are unrelated to mea-
suring job capability.”45 Similarly, in the UK and EU, indirect discrimination refers to
practices, policies, or criteria which apply equally to all, but put an individual at a dis-
advantage because of a protected characteristic, and which cannot be justified.46
The principle of equality of results, however, is challenging. What “results” mat-
ter and what does “equality” mean in that context? Theorists such as Parfit tend to
focus on equality of well-being,47 but the meaning of well-being is itself a subject of
more than a little debate, and indeed, the radical consequences of insisting on equal-
ity of well-being tend to be used as a reason to reject egalitarianism. In discrimination
law, the principle of equality of results is generally applied to workforce participa-
tion, places at schools or universities, or voting. But here the application of “equality”
becomes problematic. Should the results reflect the spread of all the identity groups
in the population as a whole? This may be relatively easy to envisage in relation to
gender or race. We might plausibly aim to achieve a balanced workforce or student
body, with parity between women and men in all grades. But are we aiming to achieve
a workforce, educational institution, or representative body which exactly reflects the
population in relation to age, disability, religion or belief, and sexual orientation? And
how do we factor in intersectional discrimination? As several jurisdictions have dis-
covered, a simple focus on equality of results does not assist us in determining how we
count representation of white women as against black men, and where we position
groups with intersectional identities, such as older women, women with disabilities,
gay women, etc.

43
John Gardner, Liberals and Unlawful Discrimination, 9 Oxford J. Legal Stud. 1 (1989).
44
Griggs v. Duke Power Co., 401 U.S. 424 (1971).
45
Id. at 432. Intent had not been proved in the lower courts. Nevertheless, as well as addressing structural
discrimination, disparate impact can be used to “(1) to smoke out covert discriminatory purpose; and
(2) to challenge subconscious employer bias”: Reva Siegal, From Colorblindness to Antibalkanization: An
Emerging Ground of Decision in Race Equality Cases, 120 Yale L.J. 1278, 1317 (2011).
46
See Equality Act 2010, §19 (UK); see also Ontario Human Rights Commission v. Simpsons-Sears Ltd,
[1985] 2 S.C.R. 536 (Can.); City Council of Pretoria v. Walker (CCT8/97) [1998] Z.A.C.C. 1; 1998 (2) SA
363 (S. Afr.).
47
Derek Parfait, Equality and Priority, 10 Ratio 202 (1997).
722 I•CON 14 (2016), 712–738

Nor is it obvious that equality of results resolves the leveling down problem. It is per-
fectly plausible to achieve equality of results by equalizing everyone at a lower level:
indeed, the critique of egalitarianism is primarily aimed at distributive solutions such

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as this. One way forward is to follow Parfit’s “prioritarian” approach. On this view, the
focus is on the worse-off. On any scenario, the gains to the worse off are given greater
value than the gains to anyone else. As Parfit frames it, this is not an egalitarian claim.
“We do not think it in itself bad, or unjust, that some people are worse off than others. . . .
Egalitarians are concerned with relativities: with how each person’s level compares
with the level of other people. On the Priority View, we are concerned only with
­people’s absolute levels.”48 He concludes that this approach makes equality redun-
dant: what matters are people’s absolute entitlements, rather than their entitlements
relative to others. However, absolute entitlements tend to settle at the minimum and
do nothing to redress disparities above the minimum. It is here that equality continues
to play a role. A clear example is the difference between the right to minimum pay,
which is an absolute entitlement, and the right to equal pay for equal work for men
and women, which is centrally and rightly concerned with disparities. Thus while sub-
stantive equality need not be about achieving purely egalitarian outcomes; it should
at least in part aim to reduce the gap between the more disadvantaged and the less
disadvantaged.
There is a deeper problem with equality of results. This is that altering outcomes
need not necessitate any fundamental reexamination of the structures that perpetuate
discrimination. A change in the color or gender composition of a grade or sector, while
to some extent positive, might reflect only an increasingly successful assimilationist
policy. Thus women who achieve these positions might have done so by conforming to
“male” working patterns, contracting out their childcare obligations to other women,
who remain as underpaid and undervalued as ever. Similarly, the increase in numbers
of women doing certain types of jobs might coincide with a decrease in the pay or sta-
tus of the job in question. In the US, school desegregation, while appearing to achieve
racial integration, in fact frequently replicated racial hierarchies within schools, as
reflected in the fact that the racial achievement gap persists even in racially mixed
middle class schools.49 Thus quantifiable change might only partially reflect qualita-
tive change. There is a danger too that a focus on equality of results pays too little
attention to the equally important duty to accommodate diversity by adapting existing
structures. This is particularly problematic in relation to disparate impact or indirect
discrimination because of the possibility of a justification defense. Under the US stan-
dard, a practice which excludes a protected group, is only prohibited if, in the words of
Burger CJ in Griggs, it “cannot be shown to be related to job performance.”50 Similarly,
the UK provision permits an employer to justify prima facie indirect discrimination if
it is a proportionate means of achieving a legitimate aim.51 Ultimately, therefore, if an
employer can justify disparate impact on the basis that it is proportional to a legitimate
48
Id. at 214.
49
Minow, supra note 6, at 26.
50
Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
51
Equality Act 2010, s 19 (UK).
 Substantive equality revisited 723

end inequality of results is condoned. Thus equality of results, while providing a wel-
come antidote to equality of treatment, can be seen to be at best a partial framework
for situating the right to equality. There is the additional need for structural change.

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4.2. Equality of opportunity
Equality of opportunity is a popular alternative to both equal treatment and equality
of results and is given statutory force in several jurisdictions.52 Proponents of this view
recognize that equal treatment against a background of past and structural discrimi-
nation can perpetuate disadvantage. Using the graphic metaphor of competitors in a
race, it is argued that true equality cannot be achieved if individuals begin the race
from different starting points. However, according to this approach, to focus entirely
on equality of results is to go too far in subordinating the right to individual treatment
to a utilitarian emphasis on outcomes. Once individuals enjoy equality of opportunity,
the problem of institutional discrimination has been overcome, and fairness demands
that they be treated on the basis of their individual qualities, without regard to sex or
race. This model therefore specifically rejects policies which aim to correct imbalances
in the workforce by quotas or targets the aim of which is one of equality of outcome.
Instead, an equal opportunities approach aims to equalize the starting point rather
than the end result. Once all have equal opportunities, they should be judged on indi-
vidual merit. Equality of opportunity is fully compatible with unequal results, not just
because individual talent differs, but because this approach incorporates and empha-
sizes choice. Once opportunities are made available, each individual can choose her
own life course.
Like equality of results, equality of opportunity requires more attention to be given
to what counts as an opportunity, and ultimately, what counts as equality. What mea-
sures are required to ensure that individuals are genuinely able to compete equally?
Williams distinguishes between a procedural and a substantive sense of equal opportu-
nities. On a procedural view, equality of opportunity requires the removal of obstacles to
the advancement of women or minorities, but does not guarantee that this will lead to
greater substantive fairness in the result.53 For example, the abolition of word-of-mouth
recruitment or non-job-related selection criteria removes procedural obstacles and so
opens up more opportunities. But this does not guarantee that more women or minori-
ties will in fact be in a position to take advantage of those opportunities. Those who
lack the requisite qualifications as a result of past discrimination will still be unable to
meet job-related criteria; women with childcare responsibilities will still not find it easier
to take on paid work. In the famous words of US President Lyndon Johnson, it is “not
enough to open the gates of opportunity. All our citizens must have the ability to walk
through those gates.”54

52
Id. at 149.
53
Bernard Williams, The Idea of Equality, in Philosophy, Politics and Society Second Series 110 (Peter Laslett &
W. G. Runciman eds., 1962).
54
Lyndon B. Johnson, Address at Howard University (4 June 1965) cited in Abagail Thernstrom, Voting
Rights, Another Affirmative Action Mess, 43 U.C.L.A. L. Rev. 2031, 2037n.22 (1996).
724 I•CON 14 (2016), 712–738

A substantive sense of equality of opportunity, by contrast, requires measures to

be taken to ensure that persons from all sections of society have a genuinely equal
chance of satisfying the criteria for access to a particular social good.55 This requires

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positive measures such as education and training, and family-friendly measures. It
may go even further, and challenge the criteria for access, since existing criteria of
merit may themselves reflect and reinforce existing patterns of disadvantage. For
example, criteria which stress a continuous work history would reflect a view that
experience out of the paid labor force is of little value to a future job. Women who have
left the paid workforce to bring up children would thereby be subject to detriment. As
Hepple argues, one is not supplying genuine equality of opportunity if one applies an
unchallenged criterion of merit to people who have been deprived of the opportunity
to acquire “merit.”56 In practice, however, equality of opportunity is rarely used in
its substantive sense when framing equality laws. Thus equality of opportunity, like
equality of results, remains at most a partial basis for grounding the right to equality.

4.3. Dignity
Rather than refocusing on equality of opportunity or results, many legislatures,
courts and theorists have searched for a more substantive core to the notion of equal-
ity. Some such substantive core could, in particular, avert the “levelling down” argu-
ment. This can be seen in the US Supreme Court case of Johnson v. California, which
involved racial segregation of prisoners.57 The prison authority argued that this should
not be regarded as discriminatory because all races were “equally segregated”. The US
Supreme Court emphatically rejected the argument that equality could be satisfied by
“neutrality” of this sort. Citing the earlier case of Powers v. Ohio, the Court stated: “It is
axiomatic that racial classifications do not become legitimate on the assumption that
all persons suffer them in equal degree.”58
The US Supreme Court did not specify the core value it was referring to. Other
jurisdictions have been more explicit. The foremost candidate has been the notion
of dignity. The primacy of individual dignity and worth as a foundation for equal-
ity rights has been clearly articulated in a number of jurisdictions, both in consti-
tutional or statutory documents and by courts. Particularly vocal in this regard has
been the Supreme Court of Canada, which has located dignity at the center of the
equality principle. “Equality means that our society cannot tolerate legislative distinc-
tions that treat certain people as second class citizens, that demean them, that treat
them as less capable for no good reason, or that otherwise offend fundamental human
dignity.”59 Similarly, from the very beginning of the jurisprudence on equality in the
South African Constitutional Court, dignity has played a central role. Thus Ackerman

55
Williams, supra note 53, at 125–126.
56
Bob Hepple, Discrimination and Equality of Opportunity—Northern Irish Lessons, 10 Oxford J. Legal Stud.
408, 411 (1990).
57
Johnson v. California, 543 U.S. 499 (2005).
58
Powers v. Ohio, 499 U.S. 400, 410 (1991).
59
Law v. Canada [1999] 1 S.C.R. 497, ¶ 51 (Can.).
 Substantive equality revisited 725

J. in the early case of Prinsloo v. Van der Linde,60 stated that unfair discrimination “prin-
cipally means treating persons differently in a way which impairs their fundamental
dignity as human beings.”

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Certainly, there is much that makes dignity an intuitively appealing concept.61
Most importantly, dignity should replace rationality as a trigger for the equality
right. Rationality has proved to be an exclusive doctrine, which has been deployed
to deny access to the equality right; in particular to women, who were portrayed as
lacking the prerequisite rationality.62 The crucial advance represented by substitut-
ing dignity for rationality is that dignity is seen to be inherent in the humanity of
all people.
However, a closer look at these formulations reveals that dignity is not the panacea
it is often imagined to be. Dignity on its own does not inevitably entail equality. Indeed,
dignity is just as capable of being hierarchical. One could easily imagine that some
could be regarded as more dignified than others. We could regard everyone as having
moral worth, without inevitably regarding them as having equal moral worth, and
therefore as attracting equal concern and respect. Indeed, the history of the concept
of dignity reveals its roots in ideas of rank and hierarchy rather than equality.63 It is
only by insisting that everyone has equal moral worth that we achieve the goal of
justifying equal concern and respect. This demonstrates that equality plays an inde-
pendent role, over and above dignity. In fact, we are still asking the question: equality
of what? And our answer in this case is “equal dignity.”
In any event, “dignity” is open to different interpretations, and even opposite
results.64 This can be seen in the South African Constitutional Court case of Hugo.65
The case concerned the pardon issued by President Mandela to all women prisoners
who were mothers of young children. The pardon was challenged by a male prisoner,
the sole carer of his young children, on the basis that it discriminated on grounds of
gender. The court rejected the case. According to Goldstone J., “[t]he Presidential Act
might have denied fathers an opportunity it afforded mothers, but it could not be said
to have fundamentally impaired their rights of dignity or sense of equal worth.”66 By
contrast, for Kriegler J. it was the assumption that women are the primary child-carers
which constituted an assault on their dignity. As he put it in his dissent: “One of the
ways in which one accords equal dignity and respect to persons is by seeking to protect
the basic choices they make about their own identities. Reliance on the generalisation
that women are the primary care givers is harmful in its tendency to cramp and stunt

60
Prinsloo (CCT4/96), [1997] Z.A.C.C. 5, ¶ 31 (S. Afr.).
61
For a particularly persuasive approach, see Denise Réaume, Discrimination and Dignity, 63 L.A. L. Rev. 645
(2002–2003).
62
Fredman, Women and the Law, supra note 38, ch. 1.
63
Stephanie Hennette-Vauchez, A Human Dignitas? Remnants of the Ancient Legal Concept in Contemporary
Dignity Jurisprudence, 9 Int’l J. Const. L. 32 (2011); Christopher McCrudden, Human Dignity and Judicial
Interpretation of Human Rights, 19(4) Eur. J. Int’l L.656 (2008).
64
See David Feldman, Human Dignity as a Legal Value: Part 1, Public L. 682 (1999); McCrudden, supra note
63.
65
President of the Republic of South Africa v. Hugo (CCT11/96), [1997] Z.A.C.C. 4 (S. Afr.).
66
Id. ¶ 47.
726 I•CON 14 (2016), 712–738

the efforts of both men and women to form their identities freely . . .”67 Here, dignity
is interpreted in at least three ways: as protecting a sense of self-worth, as protecting
basic choices individuals make, and as protecting individuals against harmful stereo-

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types. There is no particular reason within the conception of dignity why we should
choose any particular one of these formulations.
The use of dignity in the application of the right to equality has in practice been
highly problematic.68 Courts in several jurisdictions have tended to regard dignity as an
independent element in discrimination law, requiring a claimant to prove not just that
she has been disadvantaged, but that this signifies lack of respect of her as a person.
We have already seen that in the South African case of Hugo,69 the Court held that even
though the applicant had been denied an opportunity made available to women, this
could not be said to have impaired his fundamental sense of dignity or self-worth. This
danger has been similarly demonstrated in the Supreme Court of Canada, in which
the Court held that proof of disadvantage on grounds of an enumerated character-
istic would not in itself be discriminatory if the claimant could not prove in addition
that this disadvantage signified that society regarded her of less value than others.70
Thus in Gosselin,71 welfare beneficiaries under thirty received significantly lower benefit
than those over thirty unless they participated in a designated work activity or educa-
tion program. Given the considerable shortfall in places available, many young people,
including the claimant, experienced real poverty. She claimed that this constituted age
discrimination, in breach of the equality guarantee in § 15(1) of the Canadian Charter.
However, the majority held that “the provision of different initial amounts of monetary
support to each of the two groups does not indicate that one group’s dignity was prized
above the other’s.”72 It therefore rejected her claim. In a remarkably similar response,
in the House of Lords in the UK case of Reynolds, Lord Rodgers stated: “There is no
doubt that the relevant regulations, endorsed by Parliament, deliberately gave less to
those under 25. But this was not because the policymakers were treating people under
25 years of age as less valuable members of society.”73
This problem has now been recognized by the Canadian Court. In an important
case in 2010, R. v. Kapp,74 it acknowledged that
several difficulties have arisen from the attempt . . . to employ human dignity as a legal test.
There can be no doubt that human dignity is an essential value underlying the s. 15 equality
guarantee. In fact, the protection of all of the rights guaranteed by the Charter has as its lode-
star the promotion of human dignity. . . . But as critics have pointed out, human dignity is an
abstract and subjective notion that . . . has . . . proven to be an additional burden on equality
claimants, rather than the philosophical enhancement it was intended to be.75

67
Id. ¶ 80.
68
Albertyn and Goldblatt, supra note 11.
69
President of the Republic of South Africa v. Hugo, (CCT11/96) (S. Afr.).
70
Law v. Canada [1999] 1 S.C.R. 497 (Can.); Gosselin v. Quebec, [2002] 4 S.C.R. 429 (Can.).
71
Id.
72
Id. ¶ 61.
73
[2005] UKHL 37 ¶ 45.
74
R. v. Kapp, [2008] 2 S.C.R. 483 (Can.).
75
Id. ¶¶ 21–22.
 Substantive equality revisited 727

This strongly suggests that the right to equality cannot simply be collapsed into the
right to dignity.

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5. Substantive equality: a four-dimensional concept
In this section, I draw on the insights above to reconceptualize the right to equality
by stipulating a four dimensional framework of aims and objectives. Firstly, the right
to substantive equality should aim to redress disadvantage. Second, it should counter
prejudice, stigma, stereotyping, humiliation and violence based on a protected char-
acteristic. Third, it should enhance voice and participation, countering both political
and social exclusion. Finally, it should accommodate difference and achieve structural
change.
The four dimensional approach extrapolates from existing understandings of the
right to substantive equality. The first two dimensions, disadvantage and stigma or
stereotyping, are clearly evident in Canadian and South African jurisprudence. The
Supreme Court of Canada summed up its position in its 2011 case of Withler.76
Referring to substantive equality as the “animating norm”77 of the right to equality in
the Charter, the Court stated that, in determining whether substantive equality had
been violated, the question should be whether “having regard to all relevant factors,
the impugned measure perpetuates disadvantage or stereotypes the plaintiff group.”78
Similarly, in the early South African Constitutional Court case of Brink v. Kitshoff,79
O’Regan J., writing for the Court, identified the purpose of the constitutional right
to equality as remedying patterns of disadvantage. In subsequent cases, the Court
effectively placed dignity at the center of the equality right. However, neither of these
jurisdictions has expressly articulated the relationship between dignity and disadvan-
tage, or how tensions between them should be addressed. The participation dimension
has been central to the US courts’ development of race jurisprudence based on exclu-
sion from the political process of “discrete and insular minorities”80, and resonates too
with the concern of the Canadian and South African courts with permanent residents
as non-citizens.81 The transformative dimension grows out of and elaborates duties of
accommodation in relation to religion and disability in the US, Canada, and the UK,82
and the UK duty to have due regard to the need to advance equality of opportunity.83
As argued above, the four-dimensional framework is rooted in existing understand-
ings, extrapolating from what is already implicit in the approaches to substantive

76
Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396 (Can.).
77
Id. ¶ 2.
78
Id. ¶ 3.
79
Brink v. Kitshoff (CCT15/95), [1996] Z.A.C.C. 9 ¶ 42 (S. Afr.).
80
Carolene Products Co., 304 U.S. 144 (1938).
81
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (Can.); Khosa and Mahlaule v. Minister
for Social Development (CCT13/03) 2004 (6) B.C.L.R. 569 (S. Afr.).
82
U.S. Airways v. Barnett, 535 U.S. 391 (2002); Multani v. Commission Scolaire Marguerite-Bourgeoys,
[2006] 1 S.C.R. 256 (Can.).
83
Equality Act 2010, § 149 (U.K.).
728 I•CON 14 (2016), 712–738

equality of courts and other national and international decision-makers. By drawing

these implicit understandings together into a multi-dimensional format, it is argued,
the resulting synthesis takes forward the approach to substantive equality in ways

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that can be more responsive to real social wrongs.
One of the benefits of a multi-dimensional approach to substantive equality is that it
allows us to address the interaction between different facets of inequality. Philosophers
and political scientists tend to focus on distributive inequality,84 while discrimination
lawyers see the right to equality as primarily concerned with countering prejudice and
stereotyping, regarding distributive inequalities as the domain of policy-makers.85 It
is argued here that both have an importance within the right to equality, but these do
not exhaust the field. It is important too to include inequalities in participation, and
structural obstacles to equality. Moreover, the ways in which they interact need to be
understood and addressed. These interactions are not always harmonious. But instead
of excluding one or the other facet wholly from the right to equality, it is argued here
that a substantive approach requires them to be considered together. This makes it
possible too to recognize and deal with conflicts between the different facets. Where
there is the potential for these facets to pull in opposite directions, the aim is to look
for synthesis or compromise, rather than suggesting that substantive equality pursue
one of the aims at the cost of obliterating the others. The four-dimensional approach
is therefore not a definition as such, but an analytic framework which can be used
to assess and assist in modifying policies and practices to better achieve substantive
equality. Drawing attention to all the dimensions and insisting on resolving conflicts
and building complementarities can move us positively towards ensuring that laws,
policies or programs can be formulated in ways which further substantive equality.
The next section briefly explains each dimension while the following section elabo-
rates briefly on how the dimensions complement and buttress each other, and how
conflicts may be resolved. Given limits of space, this article does not examine the
extent to which existing legal formulations of the right to equality or anti-discrimina-
tion conform to the principle of substantive equality outlined here; this has been done
elsewhere.86 Nor does this article deal with the extent to which the right to substantive
equality can be justifiably limited by reference to other rights or the public interest; the
argument being that the right itself should be clearly established before it is balanced
against other rights or interests.

5.1. Redressing disadvantage

One of the key advances represented by substantive equality over formal equality,
is that it is expressly asymmetric. This sets it apart from the equal treatment model,
which prohibits classification on the prohibited grounds regardless of whether this
favors or disfavors a disadvantaged group. Instead, substantive equality focuses on the
group which has suffered disadvantage: women rather than men, black people rather
84
Raz, supra note 34, at 3.
85
See further Sandra Fredman, Redistribution and Recognition: Reconciling Inequalities, 23 S. Afr. J. Hum. Rts.
214 (2007).
86
Fredman, Discrimination Law, supra note 7, ch. 4.
 Substantive equality revisited 729

than whites, people with disabilities rather than able-bodied, or gay people rather than
heterosexuals. Women, ethnic minorities, black people, and disabled people tend to
be among the lowest earners, to experience the highest rates of unemployment, and

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to predominate among those living in poverty or social exclusion. Thus it is not so
much an individual’s status or group identity which is the problem, but the detrimen-
tal consequences attached to that status. In effect then, this dimension of substantive
equality bridges the gap between the traditional sphere of anti-discrimination law and
distributive equality, which the latter, as we have seen, has been regarded as falling
within the terrain of policy rather than human rights law.
Targeting disadvantage rather than aiming at neutrality has several advantages.
Most importantly, it removes the possibility of a leveling down option. Its asymmetry
also means that it is possible to reconcile affirmative action with the right to equality.
Although apparently breaching the principle of equal treatment, affirmative action in
reality advances substantive equality by taking steps to redress the disadvantage. This
is a sounder basis for supporting affirmative action than equality of results. It does
not require results to be numerically equal in order to lessen disadvantage. Instead,
it leaves open the question as to when disadvantage has been redressed. Indeed, it is
compatible with a prioritarian theory.
However, focusing on disadvantage also carries with it some important challenges.
One is to specify the nature of disadvantage. In this context, disadvantage is primarily
aimed at socio-economic disadvantage, and the right to equality frequently operates
to address under-representation in jobs, under-payment for work of equal value, or
limitations on access to credit, property, or similar resources. However, disadvantage
should encompass more than maldistribution of resources. It needs also to take on
board the constraints which power structures impose on individuals because of their
status. Young argues that instead of focusing on the allocation of material objects, the
focus should be on domination, or structures which exclude people from participating
in determining their actions.87 Crucially, domination need not be attributable to the
actions of any particular individual, but produces constraints which are the intended
or unintended product of actions of many people.88 This is particularly salient in rela-
tion to women. Women’s disadvantage cannot be characterized solely in terms of
income poverty, but is centrally related to imbalances of power within and outside
the family.89 For example, as Chant notes, household income may bear no relation to
women’s poverty because women may not be able to access it.90
Disadvantage can also be understood as a deprivation of genuine opportunities to
pursue one’s own valued choices. This draws on the insights of the “capabilities” the-
ory developed by Amartya Sen91 and Martha Nussbaum.92 Starting from the premise

87
Iris Young, Justice and the Politics of Difference (1990).
88
Id., at 31–2; MacKinnon, supra note 41, at 572.
89
Sylvia Chant, The “Feminisation of Poverty” and the “Feminisation” of Anti-Poverty Programmes: Room for
Revision?, 43 J. Dev. Stud. 165, 174 (2008).
90
Sylvia Chant, Rethinking the Feminisation of Poverty, 7(2) J. Hum. Dev. 201, 208 (2006).
91
Amartya Sen, Development as Freedom (1999).
92
Martha Nussbaum, Women and Human Development (2000).
730 I•CON 14 (2016), 712–738

that each individual should be able to be and do what she values, this theory stresses
the importance of considering the extent to which people are actually able to exercise
their choices, rather than simply having the formal right to do so. The capabilities

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approach is richer than equality of opportunity, because it incorporates both individ-
ual autonomy and the differing needs of differently situated individuals. It recognizes
that it may not be feasible for a person to achieve the goals she values due to social, eco-
nomic, or physical constraints, as well as due to political interference.93 “What people
can achieve is influenced by economic opportunities, political liberties, social powers
and the enabling conditions of good health, basic education, and the encouragement
and cultivation of initiatives.”94 Thus it is not enough to treat everyone equally, since
the same treatment of individuals with very different constraints can replicate disad-
vantage. One of the functions of the right to substantive equality is therefore to redress
disadvantage by removing obstacles to genuine choice.
At the same time, it needs to be recognized that choice itself can be problematic,
since people often adapt their choices to their circumstances. For example, women
might prefer part-time work even if it is insecure and low paid, because it permits
them to combine paid work and child-care. But this choice is made within a context in
which women are assumed to be the primary child-carers. The fact that women make
these choices should not imply that there is no further need for legal intervention.
Substantive equality should aim to remove the disadvantages attached to part-time
work. Moreover, there are circumstances in which the concern is not solely to increase
the range of feasible options but to address the disadvantage attached to the circum-
stances a person actually finds herself in. This is particularly true in the context of
some kinds of disability; as well as of caring obligations. These complexities within
the notion of disadvantage suggest that more is needed than simply this dimension of
substantive equality. Redressing disadvantage needs to be augmented by the second
dimension (addressing stigma, prejudice and stereotyping), to which we now turn.

5.2. Redressing stigma, stereotyping, and humiliation

Stigma, stereotyping, humiliation, and violence on grounds of gender, race, disability,
sexual orientation, or other status can be experienced regardless of relative disadvan-
tage. This is the dimension of equality which speaks to our basic humanity. Equality
attaches to all individuals, not because of their merit, or their rationality, or their
citizenship or membership of any particular group, but because of their humanity.
Individuals should not be humiliated or degraded through racism, sexism, violence,
or other status-based prejudice.
This dimension has similarities to “dignity” but attempts to avoid some of its pit-
falls. Rather than relying on a vague and manipulable definition of dignity, I prefer the
concept of “recognition,” originally developed by Hegel, and refined and expanded by
Fraser and Honneth.95 Recognition refers to the central importance of inter-personal

93
Id. at 90–91.
94
Sen, supra note 91, at 5.
95
Nancy Fraser & Alex Honneth, Redistribution or Recognition (2003).
 Substantive equality revisited 731

affirmation to our sense of who we are. Identity is shaped through the ways in which
others recognize us, and we recognize others. Misrecognition or recognition inequali-
ties arise through denigration, humiliation, and failure to value individuals. To that

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extent recognition resonates with the dignity discourse. However, recognition and dig-
nity differ because of the former’s essentially relational format: rather than regarding
each person as an isolated individual to whom dignity is attached, it regards individu-
als as constructed in many ways by society and social norms. Substantive equality
is therefore capable of addressing race and gender as social constructs. Instead of
regarding sex as a biological given, the right to equality aims to address its social con-
sequences through its focus on the ways in which people relate to each other. Thus the
right to equality can address sexual harassment and stereotyping in ways in which a
pure equal treatment paradigm could not. A similar approach can be taken to disabil-
ity: using the recognition dimension of substantive equality, it is possible to address
the social implications of disability rather than focusing on the impairment.
The pivotal importance of this dimension can be seen in Brown v. Board of Education.96
The US Supreme Court posed the question thus: “Does segregation of children in pub-
lic schools solely on the basis of race, even though the physical facilities and other
‘tangible’ factors may be equal, deprive the children of the minority group of equal
educational opportunities?”97 The answer was unequivocally in the affirmative. And
the reason given was strikingly resonant of recognition issues: “To separate them from
others of similar age and qualifications solely because of their race generates a feel-
ing of inferiority as to their status in the community that may affect their hearts and
minds in a way unlikely ever to be undone.”98 The recognition principle also addresses
racist, sexist, homophobic and other violence against protected groups. Such violence
is distinctive in its negation of the very identity of the victim.

5.3. The participative dimension: social inclusion and political voice

The third dimension of substantive equality relates to participation. The right to equal-
ity is concerned with two aspects of participation. The first is political. Given that past
discrimination or other social mechanisms have blocked the avenues for political par-
ticipation by particular minorities, equality laws are needed both to compensate for
this absence of political voice and to open up the channels for greater participation in
the future. In one of the most famous footnotes in history, the US Supreme Court stated
that judicial intervention under the equality guarantee was particularly necessary
because of the way in which “prejudice against discrete and insular minorities . . . tends
seriously to curtail the operation of those political processes ordinarily to be relied upon
to protect minorities.”99 Building on this approach, John Hart Ely developed his “repre-
sentation–reinforcing” theory of judicial review in relation to groups “to whose needs
and wishes elected officials have no apparent interest in attending.”100 Similarly, the
96
Brown v. Board of Education, 347 U.S. 428 (1954).
97
Id. at 493.
98
Id. at 494.
99
Carolene Products Co., 304 U.S. 144, 152n.4 (1938) (per Stone J).
100
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 46 (1980).
732 I•CON 14 (2016), 712–738

Supreme Court of Canada in Andrews v. Law Society101 held that the equality guarantee
should extend to non-citizens for the very reason that, lacking in political power, they
were vulnerable to having their interests overlooked and their rights to equal concern

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and respect violated. These formulations address the lack of political voice by afford-
ing excluded groups judicial review through the right to equality. A further step might
involve opening up avenues for greater political participation, potentially through
­quotas in Parliament, or other explicit measures to achieve parity.102
The second aspect of the participative dimension is to address the importance of
community in the life of individuals. Rather than the universal, abstract individual of
formal equality, substantive equality recognizes that individuals are essentially social.
To be fully human includes the ability to participate on equal terms in community and
society more generally. Fraser puts particular emphasis on participation, regarding
parity of participation as the normative core of her conception of justice, encompass-
ing both redistribution and recognition without reducing either one to the other.103
Collins, in searching for a justification for departure from the equal treatment prin-
ciple, develops the concept of social inclusion as central to his notion of substantive
equality. Like Young and Fraser, Collins’s conception includes but goes beyond distri-
bution of material goods.
Although . . . social inclusion shares with equality a concern with the distributive allocations
to groups and individuals in a society, its more fundamental objective is the outcome of social
cohesion. Social inclusion is a theory of how society can be integrated and harmonious. At its
simplest, the theory is that if everyone participates fully in society, they are less likely to become
alienated from the community and will conform to its social rules and laws.104

He sees the goal of social inclusion as having the potential to provide a vital ingredient
in a more coherent account of the aims of anti-discrimination law. A further alterna-
tive characterization is that of solidarity, a value which is also expressed in the EU
Charter of Fundamental Rights. Barnard argues that solidarity requires not just the
removal of obstacles to participation, but also active measures to integrate individuals
into society.105 It is noteworthy that social cohesion is expressly required in UK anti-
discrimination law. The EA 2010 requires public bodies to have due regard to the need
for good race relations.106

5.4. Accommodating difference and structural change

Under a formal equality or “anti-classification” approach, gender, race, ethnicity,
or other status are regarded as irrelevant. This presupposes that it is both desirable
and possible to abstract an individual from these aspects of her identity and treat her

101
Andrews [1989] 1 S.C.R. 143 (Can.).
102
See Ruth Rubio Marin, A New European Parity–Democracy Sex Equality Model and Why it Won’t Fly in the
United States, 60 Am. J. Comp. L. 99 (2012).
103
Fraser & Honneth, supra note 95, at 36–37.
104
Collins, supra note 10, at 24.
105
Catherine Barnard, The Future of Equality Law: Equality and Beyond, in The Future of Labour Law: Liber
Amicorum Sir Bob Hepple 213 (Catherine Barnard et al. eds., 2004).
106
Equality Act 2010, §149 (UK).
 Substantive equality revisited 733

entirely on “merit.” By contrast, substantive equality recognizes that these charac-

teristics can be valued aspects of an individual’s identity. The problem is not so much
difference per se, but the detriment which is attached to difference. The fourth aim

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of substantive equality should therefore be to respect and accommodate difference,
removing the detriment but not the difference itself. This in turn means that existing
social structures must be changed to accommodate difference, rather than requiring
members of out-groups to conform to the dominant norm. Substantive equality is
therefore potentially transformative. For example, working hours have always been
patterned on the assumption that childcare takes place outside the labor market.
Women who wish to participate in the paid labor market must conform to this para-
digm, either by forgoing having children, or leaving their children with paid child-
carers or family members. Substantive equality aims to change such institutions so
that participative parenting is possible for both mothers and fathers in the labor mar-
ket. Similarly, the built environment must be adapted to accommodate the needs of
disabled people, and dress codes and holidays must accommodate ethnic and religious
minorities.
As with the other facets of substantive equality, structural change raises challenges.
First, does accommodating difference require general structural change, or is it suf-
ficient to create exceptions for individuals, while maintaining the general rule? An
“exceptionalist” approach has attracted criticism on the basis that, as Brodsky and
Day have argued,
it does not challenge the imbalances of power, or the discourses of dominance, such as rac-
ism, able-bodyism and sexism, which result in a society being designed well for some and not
for others. It allows those who consider themselves “normal” to continue to construct institu-
tions and relations in their image, as long as others, when they challenge this construction
are “accommodated” . . . In short, accommodation is assimilationist. Its goal is to try to make
“different” people fit into existing systems.107

However, the dichotomy between exceptionalism and structural change might be

overstated. There are clearly situations, particularly in the context of gender discrim-
ination, in which the norm should be changed. But in other situations it might be
appropriate to retain the norm as a whole, but with specific exceptions to cater for reli-
gious differences. For example, if Sikhs are unable to wear a hard hat on a construc-
tion site because of their religious duty to wear a turban, the creation of an exception
is preferable to the wholesale rejection of the rule.
The second challenge arises from the fact that structural change can be costly.
How can we justify expecting the State or private bodies to bear the cost? One way
of answering this question could be on the basis of a tort-type model, namely that
only those at fault for causing the damage should be responsible for compensating
the victim. However, a basic premise of substantive equality is that it can respond to
structural barriers, for which no single perpetrator can be found. Rather than look for
a perpetrator “at fault,” the costs should be borne by those in a position to bring about

107
Shelagh Day & Gwen Brodsky, The Duty to Accommodate: Who Will Benefit?, 75 Can. Bar Rev. 433, 447–
457 (1996).
734 I•CON 14 (2016), 712–738

change. This also avoids an adversarial approach, which might invite defensive rather
than co-operative action. Kelman argues that the decision as to where costs should
fall depends on the nature of those costs. He contrasts “simple discrimination,” which

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is similar to the equal treatment principle, with the demand for accommodation.
Because “simple discrimination” can be removed by a change in subjective taste or
conduct, all claims to be free of simple discrimination can be vindicated.108 A claim for
simple discrimination therefore cannot be balanced against other competing claims.
The demand for accommodation, by contrast, is a claim on social resources which are
inherently finite and therefore need to be balanced against other demands.109 Thus,
he argues, claims to accommodation are always subject to the argument that they are
unreasonable in the sense that the resources devoted to them could be spent better.110
This does not, however, give any guidance as to what is reasonable. Kelman gener-
ally approaches this question from the perspective of market-based decision-making.
From the perspective of substantive equality, the starting point must lie in the recogni-
tion that the question is not about how much to spend, but who should bear the cost. It
is misleading to argue that it is too costly to accommodate difference or to bring about
structural change, since the cost is incurred in any event. The status quo, without
legal intervention, requires the out-group to bear the full cost: women bear the cost
of child-bearing and childcare; disabled people bear the cost of disability; and ethnic
minorities bear the cost of their own cultural or religious commitments. Whatever
cost is not borne by employers or the State is left on the shoulders of those who are
least able to bear it. At the same time, little notice is taken of the fact that society does
bear the cost of the specific characteristics of dominant groups, be they male, able-
bodied, or in the ethnic majority. Working time, the built environment, or religious or
cultural holidays and dress already cater for the dominant groups. Substantive equal-
ity aims to redistribute these costs in ways which are fairer to all. Ultimately, then, any
decision as to cost allocation should be assessed against the framework of the four
dimensions.

5.5. A multi-dimensional approach: complementarities and conflicts

Having considered each of the dimensions and the challenges they raise, what does
a multi-dimensional approach have to offer? This section aims to sketch how the
dimensions can be used to buttress one another and better address the weaknesses
of each. We have already seen that focusing only on redressing disadvantage, or the
first dimension, is not sufficient to deal with the need to value individuals regardless
of their socio-economic position. The need for a multi-dimensional approach is rein-
forced by considering three further questions. The first concerns the link between dis-
advantage and “grounds of discrimination” or protected characteristics. If we were to
maintain that the primary concern is with socio-economic disadvantage, why do we
not simply focus on disadvantage, regardless of its connection with gender or other

108
Mark Kelman, Market Discrimination and Groups, 53 Stan. L. Rev. 833, 834 (2001).
109
Id. at 853–854.
110
Id. at 837.
 Substantive equality revisited 735

out-groups? This question can only be helpfully answered by recognizing the multi-
dimensional nature of substantive equality, which addresses disadvantage as part of
a pattern of stigma and prejudice, structural barriers and exclusion. When disadvan-

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tage is disproportionately associated with a group which also suffers from one or all of
the other factors, it should attract the attention of the right to equality. This also helps
answer the question of whether socio-economic disadvantage should be a ground
for discrimination. Socio-economic disadvantage per se should be addressed through
other legal rights and policies, such as the right to social security. The right to equal-
ity applies to socio-economic disadvantage when such disadvantage is also associated
the other dimensions, such as stigma, lack of voice, or structural factors which lock
individuals and their families into a cycle of disadvantage.111
The second reason why redressing disadvantage cannot be the sole dimension of
substantive equality arises in response to the earlier critique of indirect discrimination.
This dimension supports indirect discrimination in that equal treatment can breach
the right to inequality where it reinforces disadvantage. However, it does not address
the role of business-related justifications, noted above. Instead, redressing disadvan-
tage needs to be allied with the fourth dimension, which requires structural change.
The right to substantive equality would not be satisfied by a conception of indirect dis-
crimination which permits business-related justifications without more: it would also
require change to enable the excluded group to meet the job criteria better. This might
include supply side changes such as training or child-care, or demand side changes
such as flexible hours. Equally, paying attention to the fourth dimension emphasizes
the importance of positive duties on employers and others to take pre-emptive action to
avoid disparate impact. This has been recognized in several jurisdictions which require
proof that there are no ways of achieving the respondent’s purpose which have a less
invasive discriminatory impact.112
Thirdly, redressing disadvantage does not sufficiently address under-representation
in political decision-making. Unlike under-representativeness in employment or edu-
cation, it is difficult to characterize under-representation in decision-making in terms
of a mal-distribution of benefits. Including the participative dimension requires us
to ask a different question, namely, what would constitute participation for the pur-
pose of substantive equality? This recognizes that it is not so much about the need to
distribute benefits as the need to ensure that the perspectives of women and others
are heard and taken seriously. This also sheds light on whether equality means strict
numerical parity or not.
Similarly, it would be a mistake to see the second dimension (stigma, stereotyping,
prejudice and violence) as standing alone. This can be seen by looking again at the
judgment in Brown v. Board of Education. Although the case was based on the stigma
and feeling of inferiority generated by segregated education, this should not be sepa-
rated from the reality of disadvantage and the need for structural change in racially
segregated education in America. As Martha Minow asks, “[d]id the Court in Brown

111
Id.
112
See further Fredman, Discrimination Law, supra note 7.
736 I•CON 14 (2016), 712–738

find racially separate education inherently unequal because it tended to be education-

ally inferior, or because segregated education communicated and reinforced racial
hierarchy? The Court did not sort out these two options.’113 As the aftermath of Brown

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demonstrates, simply addressing recognition harms without paying serious attention
to redressing disadvantage and, structural change, such as improving the quality of
educational provision, is unlikely to achieve substantive equality.
Stigma and stereotyping can of course lead directly to material disadvantage, as
seen in the South African case of Union of Refugee Women, where a prohibition on
refugees working in the private security industry was challenged as a breach of the
right to equality in Section 9 of the Constitution. The government argued that refu-
gees could not be regarded as reliable, an assertion which the minority judges held to
be unfairly prejudicial and stereotyping. As O’Regan and Mokgoro J.J. put it in their
dissenting judgments: “By excluding all refugees whether or not they can comply with
the requirements of section 23(1)(d), the clear message underlying section 23(1)
(a) is that whether refugees can prove their trustworthiness or not, they may not be
employed as security service providers.”114 However, “it is not only the social stigma
which may result from such discrimination, but also the material impact that it may
have on refugees.”115
The multi-dimensional approach also flushes out potential conflicts between
dimensions. Rather than rendering one aspect of the conflict invisible and therefore
­effectively permitting one to trump the other, the multi-dimensional approach requires
synthesis and compromise. This can be seen by considering a major challenge raised
by the fourth dimension, the need to accommodate difference and achieve structural
change. At what point is it unreasonable or even wrong to accommodate difference, or
tolerate minority cultures? Many of these dilemmas arise in respect of religion. Should
polygamy be accommodated? Should religious objections to equal rights for LGBT or
women be tolerated? Should burkas be permitted? Female genital mutilation? How
does this compare with minority approaches to religious festivals, dietary laws, ritual
slaughter of animals? Here again, resolution of these difficult dilemmas is facilitated
by the multi-faceted approach to equality. Thus the transformative dimension must
coexist with the second dimension, which addresses stigma, prejudice, stereotyping
and violence. Practices which compromise the basic dignity and humanity of indi-
viduals cannot be acceptable in order to accommodate difference. Sexism, racism,
and homophobia would therefore not be capable of accommodation. There may of
course be complex debates as to whether particular cultural or religious practices
do breach the recognition dimension, particularly if their adherents believe they do
not. However, the multi-dimensional structure gives a framework within which such
debates can occur. The multi-dimensional approach can also assist in determining
how to delimit the costs of reasonable accommodation.116

113
Minow, supra note 6, at 20.
114
Union of Refugee Women v. Director, Private Security Industry Regulatory Authority (CCT 39/06)
[2006] Z.A.C.C. 23, paras 122–123 (S. Afr.).
115
Id. ¶ 122.
116
Kelman, supra note 108, at 895.
 Substantive equality revisited 737

Familiar conflicts between redressing disadvantage and addressing stigma can also
be approached through the multi-dimensional framework. Measures aimed at redress-
ing socio-economic disadvantage can themselves cause stigma and other recognition

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harms. Thus paying attention to both redressing disadvantage and the need to avoid
stigma and stereotyping is essential to ensure that the design of social welfare rights
is in tune with substantive equality. This can be seen by considering social welfare
rights, which, although aimed at redressing disadvantage, can be highly intrusive and
demeaning, as well as being based on gender stereotypes, such as assuming a male
breadwinner or that women are the primary child-carers. The demonizing of welfare
recipients as lazy and scroungers in modern rhetoric is a further demonstration.117
Lister points to the ways in which black people have been stereotyped and stigmatized
through associating them with poverty and welfare dependency.118 Similarly, Porter
describes a “disturbing pattern of scapegoating the poor” in Canada, where welfare
recipients were seen in “unremittingly negative terms by the economically secure.”119
Failing to address such stigma can undercut the goals of measures aimed at redress-
ing disadvantage. For example, in the UK, free school meals have played a central role
in the nutrition of children from poorer families; yet research shows that 20 percent
of children who are entitled to free school meals do not use their entitlement. A third
of pupils surveyed and over two-fifths of parents identified embarrassment or fear of
being teased as factors which put them off taking their free meal.120 A similar point
could be made about the design of affirmative action programs, which need to take
care to avoid stigmatizing the beneficiaries.
The alliance with redressing disadvantage also helps us avoid the obstructive
role played by dignity as seen in the Canadian and UK cases referred to above. Once
both dimensions are taken into account, it makes no sense to say, as did the judges
in Gosselin121 and Reynolds, that the disadvantage experienced by the applicants
should not be seen as impacting on their dignity. Inflicting socio-economic disadvan-
tage can itself constitute a recognition harm.122 This was highlighted in the South
African case of Khosa,123 which concerned a legislative measure which confined the
right to child benefit and old-age pensions to South African citizens, to the exclu-
sion of permanent residents. In striking down this measure as a breach of equality,

117
This has been particularly true for single mothers in the US, who were specifically targeted by the wel-
fare reform package when the Aid to Families with Dependent Children (AFDC) program, which over-
whelmingly supported single mothers, was replaced in 1996 with a welfare to work program known as
Temporary Assistance for Needy Families (TANF). See James Midgley, Welfare Reform in the United States:
Implications for British Social Policy, CASE/131 (2008).
118
Ruth Lister, Poverty 64 (2004).
119
Bruce Porter, Claiming Adjudicative Space: Social Rights, Equality and Citizenship, in Poverty: Rights, Social
Citizenship and Legal Activism 77 (Susan Boyd, Gwen Brodsky, Shelaigh Day & Margot Young eds., 2007).
120
Pamela Storey & Rosemary Chamberlin, Improving the Take Up of Free School Meals, Thomas Coram
Research Unit, Institute of Education. (2001), available at [Link]
[Link].
121
Gosselin, [2002] 4 S.C.R. 429 (Can.).
122
See further Réaume, supra note 61, at 688.
123
Khosa (CCT13/03) (S. Afr.).
738 I•CON 14 (2016), 712–738

Mokgoro J. emphasized that the consequences of exclusion were not only socio-eco-
nomic. In addition, the exclusion of permanent residents had a strong stigmatizing
effect, creating the impression that they were inferior to citizens and less worthy of

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social assistance. Permanent residents were in effect “relegated to the margins of soci-
ety and deprived of what may be essential to enable them to enjoy other rights vested
in them under the Constitution.”124
A final note concerns the role of agency or choice. While enhanced agency might
seem to be an aim of substantive equality, liberal theories of choice have periodically
been used to defeat equality claims on the grounds that the claimant could have cho-
sen to avoid the consequences of a policy or practice. Individuals should thus only
be protected against detrimental treatment on the basis of characteristics that are
“immutable” or cannot be changed by the applicants’ own efforts. Substantive equality
has brought with it an acknowledgement that that an individual should not be made
to pay an unreasonable price for her choices. More fundamentally, Sen’s capabilities
theory has illuminated the distinction between abstract choice and feasible options.
Nevertheless, because agency needs to be carefully nuanced, it is not regarded as a
separate dimension within the four dimensional framework. Instead, the appropriate
notion of agency should be constructed within the four dimensions. For example, the
need to redress disadvantage can override apparent choice when such choices are lim-
ited by that very disadvantage, or choices appear to entrench disadvantage. Similarly,
recognition issues are based on the actual consequences flowing from one’s identity,
regardless of whether that identity is chosen. Under the transformative dimension,
agency can be enhanced, through changing structures to widen the range of feasible
options. However, choice is not the only value to strive: it should be complemented by
valuing the situation people find themselves in regardless of choice.

6. Conclusion
I have argued in this article that the right to equality continues to be a powerful source
of energy for those who are disadvantaged, excluded, ignored or demeaned. The chal-
lenges it represents are not a reason to discard it. Instead, as witnessed by the strong
and growing commitment at international and national levels, the impetus should
be to develop it in substantive terms, which go beyond the right to equal treatment,
equal opportunities or equal results, or a simplified egalitarianism or right to dignity.
Instead, I have suggested that substantive equality should be developed in a multi-
dimensional format, which recognizes and addresses the distributional, recognition,
structural, and exclusive wrongs experienced by out-groups. These four dimensions of
substantive equality create a complex and dynamic conception of the right to equality,
which build on existing understandings but also invite further development and evo-
lution. This approach does not of course solve all the challenges raised by the right to
equality. Nevertheless, I hope that this contribution continues the vibrant process of
enriching the right to equality through conversation and engagement.

124
Id. ¶ 77.