How useful is law as a tool to promote equality?

What are the advantages and disadvantages of law as a tool to promote equality?  How far does this depend on the conception of discrimination enshrined in the law?

 Equality legislation appears to provide a tangible demonstration of progress ‘towards equality’ for specified groups, but how useful is it as a tool to promote equality, and how far does this depend on the conception of discrimination enshrined in the law?

 Today we will look at the advantages and disadvantages of the law as a tool to promote equality, by critiquing equality legislation in the UK up to the Equality Acts of 2006 and 2010. We will briefly examine how equality and discrimination has been conceptualised and how this is wound up with economic considerations and liberal political philosophy. Reflected not only in legislation ‘promoting equality’ but the institutions which address inequality.

 For the sake of brevity this essay will focus on certain aspects of gender and does not seek to fully examine the UK journey ‘towards’ gender equality through legislation. By placing conceptualisations of equality, discrimination and the application of law within the wider political economy, I will show law as an essential tool to promote equality, but that its effectiveness not only depends on workable conceptions of discrimination reflected in the reality of intersecting lived inequality and across institutions, but on the economic and political philosophy and institutional structure which shapes its application.

Conceptions of equality

 Law does not exist in isolation; its evolution is bound into social, political and economic changes, and law as a tool to promote equality is inextricably linked with the evolution of how ‘we’ as a society think about equality. It adjudicates on real questions in real lives lived in a complex reality, as well as forming the basis of institutions.

 Equality legislation often comes on the back of political change, grassroots movements, and crisis. However, mainstream political and economic considerations have always shaped how equality legislation is implemented and sold, and it is often wrapped around economic need and orthodoxy and political expedience. The necessity of equality legislation illustrates that equality is a deeply contested notion that cannot be defined clearly. It is therefore difficult to disentangle liberal philosophy, which shapes mainstream political ideologies, from the way discrimination and inequality are conceptualised in legislation and institutions in the UK.

 The theorising of egalitarianism is often disconnected from the reality of the social movements that sought to address their own inequality and created the conditions which have propelled the evolution of law as a tool to promote equality.

 Elizabeth Anderson, in her critique of egalitarianist theory ‘What is the point of Equality?’, demonstrates the framing of inequality by Rawls, Dworkin, Nagel and others, as reinforcing divisions between ‘the fortunate’ and ‘the less fortunate’ and orbiting a common core of the relationship between capitalism and the welfare state. This framing theorises ‘the unfortunate’, and the appropriate humanitarian impulse and obligation to them. With little consideration for the coercive power of the state, reinforcing unequal dynamics between groups which arguably legislation could be used to address, ignoring the complexity of what social movements whose actions have precipitated equality legislation actually campaigned for. The welfare state, capitalism, and equality legislation are the prescriptions for inequality thus far sanctioned by liberal theory. With anti-discrimination law mapping out specific axes of inequality and social policy institutions mapping out contested areas and the consequences of inequality.

Conceptions of Discrimination

 These conceptions of inequality are inevitably reproduced in conceptions of discrimination within equality legislation and enshrined in social policy institutions concerned with inequality. The disadvantages of this are complex and too numerous to examine in this essay. Nicola Lacey’s examination of the Sex Discrimination Act 1975 from a feminist perspective breaks this down into several key areas.

 Lacey acknowledges the Sex Discriminatoin Act 1975 was the first to explicitly state a commitment to eliminate certain forms of discrimination in the UK, its inclusion of indirect discrimination acknowledging that discrimination was often the result of structural inequality and not individual acts of discrimination. Lacey breaks down her criticism into five general criticisms and follows this with four specifically feminist criticisms, all of which still stand after the Equality Act 2010.

Disadvantages of using law as a tool to promote equality

General criticisms:

1.     Difficulties of proof

2.     Inadequate remedies

3.     Inadequate, under-resourced bodies established to oversee equality duties with insufficient power to do so

4.     Inadequacy of courts and tribunals as a setting for hearings

5.     Lack of legal aid provision to access legal redress

 Feminist criticisms:

  1.     Flawed ideal of equality enshrined so action on individual discrimination cannot address the structural inequality which exists on gender lines. Legislation focused entirely on the paid, public sphere and market transactions in a world when gender inequality is centred on what happens in the private and domestic sphere and is tied to unpaid reproductive labour

2.     Equality of opportunity, which the legislation was built around, is meaningless political rhetoric.

3.     The symmetry of equality principles prevents examination of gender inequality, and applies to men as well as women treating inequality as symmetrical

4.     The notion of unfavourable treatment was at the core of this legislation; the litigant had to prove their treatment was unfavourable in comparison to another sex. This was in the event used to rule out pregnancy discrimination in the case of Turley v. Allders Department Stores Ltd.

 Furthermore, the conception of discrimination in equality legislation in the UK has historically focused on only one aspect of identity (Lacey, 1987), creating a legal fiction for women who experience inequality along intersecting faultlines of race, gender and class, where redress can only be accessed along one of these axes, and often precluding redress for inequality exists at the intersection of multiple axes and outside the scope of blunt legal instruments (Crenshaw, 1989).

Crucially, protections offered only existed in the paid, public, and market spheres, and did not give equality in the context of welfare, power, resources and goods (Lacey 1987). Once women crossed into the private and domestic spheres, or become subject to social policy, they became ‘the unfortunate’ and subject to paternalistic notions with little consideration of the coercive effect of these institutions, without recognition that their situation was linked to the inequality requiring legislation in the paid and market sphere (Anderson, 1999). Legislation maps out recognised axis of discriminatoin while social policy provision evolves to address the consequences of what is not recognised. The benefits system, social care, and because inequality is often about power and abuse, the evolution of services for gendered violence and child abuse provide this map. Policy makers use the inequality faultlines mapped out with social policy to faultlines to justify abusive policy prescriptions that anti-discriminatoin law would have outlawed in the private sphere in 1975.

 The legal system itself is a crucial disadvantage to using law to promote equality. It is widely accepted that legal scholars wishing to address the role of equality in legislation need to examine the social and cultural context in which laws are formulated, enforced, and interpreted (Frohman and Mertz 1994, Lacey 1987, Dickens 2007).

Advantages of using law as a tool to promote equality

Despite this, law remains a crucial tool in the promotion of equality, and does not have to be bound by the conceptions of discrimination and inequality that have characterised it’s use so far.

Anderson argues that the proper aim of egalitarianism is not to eliminate the impact of ‘brute luck’, but to end socially imposed oppression. She defends ‘democratic equality’, which guarantees all law abiding citizens effective access to the social conditions on which their freedom depends (Anderson, 1999). She draws on Friedrich Hayek, who in Road to Serfdom frames the rule of law as necessary to limit the power of the state to oppress individuals and groups. Hayek draws on Volataire when he states ‘Man is free if he needs to obey no person but solely the laws.’ Law is not only a tool with advantages in the pursuit of equality, it is essential. Hayek is clear that law is not only effective in its application by case, but in giving individuals a fair expectation of what they can expect from their government and in allowing them to live free of the oppression of other groups. (Hayek, 1944). The ‘False Consciousness’ Nicola Lacey refers to, may have been an advantage of equality legislation, until women crossed out of the market sphere (Lacey, 1987). 

The liberal prescription for inequality may be equality legislation and the welfare state, but the welfare state is not treated as the flip side of this coin in any meaningful sense (Lacey, 1987). Hyman Minsky is clear that the legislation that underpins the formation of stabilising institutions will work with market forces to shape those institutions for their lifespan (Minsky, 1984). Beveridge’s conceptions of the undeserving are still reflected in the benefits system today (Timmins, 1995)

The legal system is an evolving one. Jane Conaghan points out that even in a legal system that prizes the legal person as an abstract, disembodied, universal expression of everyone, there is considerable scope for examination of the way gender (and other inequality faultlines) is woven into the fabric of law (Conaghan, 2013). She concludes that the nature of the relationship between law and gender is contingent rather than necessary or absolute (Conaghan, 2013). The evolution of law is in fact driven by social, political, and economic change which never ends.

Recognition of the advantages of using law as a tool to promote equality without progress.

The Equality Acts of 2006 and 2010 appeared to understand the role legislation could play in promoting equality. They addressed multiple axes of inequality, and covered the development of institutions and the private and domestic spheres, as well as the paid and market spheres covered by the original sex discrimination legislation. The Acts created an equality duty bound into service delivery as well as policy development, as well as promising the advent of ‘gender mainstreaming’. Gender mainstreaming was a much vaunted idea to make sure future policy development would be wrapped around the promotion of equality (Miller, 2009, Veitch, 2005). Protection was expanded to cover age, trans women and other groups, and on the surface this legislation seemed like the natural evolution to our existing web of legislation, casting off the limitations offered by previous conceptions of inequality and discrimination.

 Yet the criticisms Nicola Lacey made of the Sex Discrimination Act 1975 still stand, and in many respects the situation is now worse than it was then. The recognition of multiple axes of inequality turned out to be the creation of separate silos of inequality, reinforcing the legal fiction of a single axis of oppression. Public spending commitments were exempt from consideration under the equality duty, and the implementation of these new duties has been widely accepted as ineffective (Solanka, 2010).

The rhetoric of equality legislation progressed, but it’s impact didn’t.  The financial instability of 2008 was used to justify austerity measures, which have pushed us to a crisis where many are questioning whether the limited measure of ‘gender equality’ already achieved has been ‘rolled back’ (European Women’s Lobby, 2012). It has justified accelerated market driven reform of the institutions women are likely to use as they pass out of the public and market sphere – the benefits system, social care, children’s services, the courts, and the services that provide support for gendered violence – have all been disproportionately impacted by austerity and this focus is subject to political consensus. (Finlayson 2009, Jensen et al, 2012, Kowalewska 2015, Prabhakar 2009, Krachler and Greer 2015, Ferguson 2008, Fouzder et al 2015,Prabhakar 2009). Legal aid is now unavailable in family courts, In some cases leaving women unable to leave the control of ex-partners, or facing cross examination by rapists (Bowcott, 2015). Legislation regarding children does not give children rights but creates duties to them.

Legislation that governs primary caregivers of children, who are mostly women, doesn’t see them and creates a legal duty to remove children from abuse even if they are a victim of that abuse. It is assumed they have conditions to demand freedom from abuse (Ferguson, 2013). Adoption and increased use of child protection law has coincided with the deliberate creation of maternal poverty using deserving and undeserving rhetoric..Proposed benefit reforms include expansion of conditionality to the predominantly female workers who use tax credits to top up gendered low pay, such that women will have to justify the conception of their child to statutory bodies(HM Treasury, 2015, Institute of Fiscal Studies 2015). The institutions who map out the axis of inequality that antidiscriminaion legislation can’t see, exploited that inequality in an abusive way and only recognition that they map out that axis, and legislation guiding the development of those institutions can address that.

 This pattern has been reflected across European economies with the same political and economic philosophy and can equally be traced along faultlines of disability and race, with the same intersection of inequality that Crenshaw outlined existing everywhere compounding the impact (European Women’s Lobby 2012).

 In conclusion, the disadvantages of using law as a tool to promote equality stem directly from conceptions of discrimination tightly bound with liberal and economic philosophy, and applied in a political economy shaped by them. The institutions in which law is applied and the institutions concerned with inequality have almost nullified the impact of using law as a tool to promote equality. However, the advantages of using law as a tool to promote equality are substantial and in fact it is the only instrument which could ensure promotion of equality is wound through the entire political economy. Rhetoric around the recent Equality Acts demonstrates there is awareness of this and as law and our legal system are constantly evolving, law should still be seen as a key tool to promote equality.


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