The concept of equality is traditionally understood to mean “the right to be equal to men”. This becomes problematic when it is extended to the understanding that women must be treated exactly like men if they are to gain equality with men. It implies that women must be treated according to male standards, obscuring the ways in which women are different from men and how they will be disadvantaged because of these differences.
Initiatives for the realisation of women’s rights need to compensate for or cater to the difference, disparity or disadvantage, rather than a “one size fits all” approach. It means taking into account the ways in which women are different from men, and ensuring that these differences are acknowledged and responded to by State measures toward achieving equality. Furthermore, real equality goes beyond formal (de jure) equality – women and men must be equal in fact (de facto) as in law.
Substantive Equality and Difference
The CEDAW Convention promotes the substantive equality model and consolidates two central approaches to equality:
- Equality of opportunity in terms and access to the resources of a country, to be secured by a framework of laws and policies, and supported by institutions and mechanisms for their operation.
- Equality of results upon access and opportunity, toward achieving real change for women. State parties to CEDAW have a responsibility to ensure the practical realisation of rights, and are thus obliged to show results
The concept of substantive equality arose out of the recognition that formal equality may not be sufficient to ensure that women enjoy the same rights as men. An ostensibly gender-neutral policy, while not excluding women per se, may result in a de facto discrimination against women. It does not consider:
- Sex or biological differences whereby, for example, women bear children, not men.
- Gender differences or socially-created differences resulting in norms and assumptions about women and men’s roles in society, and their capability and need. This in turn influences both policy-making and its implementation.
Differences between women and men whether based on biological (sex) difference or socially created (gender) differences results in women’s asymmetrical experience of:
- disparity, and
Responding to Gender Difference
Approaches that take into account differences between women and men may not all be immediately favourable to women. In fact, they could be discriminatory in effect, if not in intention. To be able to intervene effectively in favour of women’s equality, it is important to have a conceptually sound understanding of what or why differences exist between women and men.
There are two ways of responding to gender differences in policy or approach:
- The protectionist approach which, while recognising differences, seeks to curtail or curb women’s activities or freedoms with the rationale that the aim is to “protect” women from harm or wrongdoing. This approach does not challenge gender discrimination, but reproduce it in the guise of protecting women.
- The corrective or substantive approach which recognises that in order to redistribute benefits equally between women and men, measures to promote women’s rights must transform the unequal power relations between women and men in the process. There should not only be equal opportunities for women but also equal access to those opportunities.
The substantive equality approach recognises that women and men cannot be treated the same, and for equality of results to occur, women and men may need to be treated differently. The challenge is to know when to take note of difference, and to decide on appropriate measures for different treatment that will facilitate equal access, control and equal result. Such measures will have to be assessed to ensure they promote autonomy rather than protection or dependency. This has to be done without compromising the claim for equal rights and equality as a legal standard.