While formal sex equality judges the
form of a rule, requiring that it treat women and men on the same
terms without special barriers or favors on account of their sex,
substantive equality looks to a rule's results or effects. Formal
rule equality often does not produce equal results because of
significant differences in the characteristics and circumstances
of women and men. Advocates of substantive equality demand that
rules take account of these differences to avoid gender-related
outcomes that are considered unfair. Determining what differences
should be taken into account and in what ways -- in short, what
is fair -- is not always an easy matter. Thus, substantive
equality is not one theory, but several theories, reflecting
multiple types and sources of difference and a number of
alternative or overlapping substantive ideals.
One version of substantive equality attempts to remedy the
effects of past discrimination. For example, women historically
have been excluded either by law or by gender role norms from
having certain jobs excluded wages comparable to those earned by
men. "Affirmative action" designed to boost women into
occupational fields dominated historically by men and
"comparable worth" schemes designed to restructure wage
scales to eliminate the effects of past patterns of gender-based
job segregation are examples of remedial measures designed to
reverse the effects of this past discrimination.
Another type of substantive equality focuses on biological
differences between women and men. Only women become pregnant,
for example, and pregnancy may disadvantage a woman worker with
respect to job opportunities, seniority, and job security.
Maternity leave provisions, child care assistance, and seniority
guarantees are examples of measures within a substantive equality
framework that are designed to neutralize this disadvantage. More
radical substantive equality approaches look beyond biological
difference to social expectations and practices such as those
that steer women into lower-paying occupational categories,
encourage their economic dependence on men, and lead them to be
the primary caretakers of their children. These more radical
approaches attempt to reverse these expectations and practices,
or eliminate their costs.
Many differences between men and women are matters of averages,
rather than definitional or across-the-board differences. Formal
rule equality principles will be sufficient to achieve fair and
equal outcomes for the exceptional or "non-average"
woman who can compete successfully for an opportunity on the same
basis as the average man. Other more result-oriented approaches
may be required, however, to protect the interests of women as a
whole, whose average characteristics would otherwise disadvantage
them in relation to men. Thus, for example, in public education
women-only sports teams might be necessary to ensure equal
opportunities for women, even where boys-only teams might not be
justified constitutionally. Likewise, substantive equality might
require rules for child custody and spousal support at divorce
that appear to "favor" women in order to balance the
power between spouses, thereby preventing men from exploiting
women's greater (average) economic vulnerability and their
stronger (average) preference for custody of their children.
As you study the various examples of substantive equality in
this [unit], notice the similarities and differences in
approaches taken with respect to (1) which differences in
circumstances or characteristics between men and women are, or
should be significant, (2) which outcomes are just, and (3) which
strategies are most likely to lead to those outcomes. Compare and
contrast also the reasoning in these examples with that in the
formal equality approach. To what extent is it necessary to
choose between approaches? Is there any one approach that would
seem satisfactory in all situations surveyed in the [unit]?
