Reading Catharine MacKinnon on substantive equality in feminist law, I am struck by the difference between her use of that concept and the use to which it has been put in some disability law contexts.
For MacKinnon, substantive equality means that social hierarchy, social inequality, is taken into account when making and interpreting legal standards. Instead of the Aristotelian approach to equality, treating like as like and unlike, which as she righty points out is meaningless as a tool because it can give opposite results depending on what aspect of a situation are being considered, substantive equality looks at how a group, or class of people, is situated in society and what needs to be done to remedy systemic disadvantages, inequalities of power and resources, subordination, subjugation, oppression, exploitation. Substantive equality in MacKinnon’s approach is revolutionary for women, because it means going deeper than the question, ‘are men and women being treated the same in respect of a particular rule’ when men might not be a comparator class e.g. in discrimination related to pregnancy which only affects women, or in crimes of sexual aggression and exploitation where not only is there a disproportionate impact on women in numbers, the ideology of those crimes and their systemic character affects all women as a class and individual victims in ways that underscore and emblematize their sex-based oppression as women.
Formal equality as applied to women had meant that if men don’t suffer certain kind of disadvantage or if men believed it was trivial or inconsequential, it was legally non-cognizable as a violation of rights. Substantive equality meant looking deeper, acknowledging that women’s situation in relation to society as a whole was as a class being subordinated to and by men as a class, and looking for remedies for injustices related to this social inequality.
In the disability context, substantive equality has returned to Aristotelianism. The idea is promoted that, in order to treat people with disabilities as substantively equal to people without disabilities certain compensatory measures are necessary to bring them up to the required level. In other words, because of the ways that people with disabilities are unlike people without disabilities, treating unlike as unlike is required. That is not substantive equality in the MacKinnon sense! It is not equality at all but discrimination that is masking as a good deed, i.e. paternalism.
In the disability context,* the paternalistic facet of substantive equality is particularly directed against people whose actual or alleged disabilities lie in the realm considered to affect their mental capacity or decision-making. Reasonable accommodation and accessibility are compensatory measures not for impairment, not to compensate deficiencies of the individual, but to remedy and correct social failures to take account of how a subset of the population will use services or facilities, excluding them by deliberate or inadvertent policy. These measures properly understood are substantive equality in the revolutionary sense, dignifying disabled people as rights holders and not charity seekers. Yet perhaps because of lingering charity model attitudes about disability, policymakers sometimes wrongly invoke the concept of reasonable accommodation, or more often substantive equality, to claim that coercive measures for paternalistic purposes against individuals who are believed to lack good judgment about their own needs are necessary to bring the person to a point where they are (accepted by self-styled judges of good decision-making as) capable of exercising legal capacity.
This approach to substantive equality as paternalism was evident in Michael Bach’s advocacy on Article 12 in the Day of General Discussion several years ago, which posited three tiers of decision-making – independent, supported and substituted (called facilitated in his framework), into which individuals would be sorted by some entity acting as the invisible hand of god and unquestioned as to its own capabilities or right to make such classifications. My own contribution that day consisted of an equality-based approach starting with formal equality (absence of facial discrimination in the law or of any purposeful discrimination masked by facially neutral terminology), universally-designed protocol and legal doctrine, systemic accessibility, reasonable accommodation and personalized support to move from the most generalized levels to the most personalized. I believe that this is the way to ensure change in policy and attitudes so that the onus is not on individuals to conform to systems that systemically discriminate against them by acts of omission or commision – by deliberate exclusion or systematic failure to take their circumstances and perspectives into account at the levels of policy and design and legal norms.
(The capabilities framework of Amartya Sen and Martha Nussbaum is commonly offered to elide the differences between a revolutionary approach to substantive equality and a paternalistic one. Without discussing that further here, I note it as a topic for further research and elaboration.)
Thus I would be more aligned with substantive equality in MacKinnon’s sense. MacKinnon is not opposed to facial equality, to eliminating laws that were made deliberately to subjugate women or based on paternalistic and oppressive stereotypes that disadvantage women and single them out for adverse treatment. Her substantive equality means going deeper into the meaning of equality and rejeting the Aristotelian rule that serves to perpetuate the status quo or to make whatever changes the status quo might deem allowable without actually changing the structure of power. What the misuse of substantive equality in the disabilities context means, is a denial or lack of understanding that the relations between non-disabled people and disabled people are relations of power: the power to exclude and to subject to intolerable conditions of life, the power to dominate social institutions and political discourse, the power to ignore, the power to exploit as surplus labor or subjects of experimentation and victims of a destructive service industry with its own institutional financial and professional interests, the power to suppress populations via the threat of the madhouse and mental illness accusations – both populations as a whole and women, people of color and political dissidents of any stripe whom society finds inconvenient, including survivor of psychiatric abuse activists, the power to incarcerate populations in institutions rather than equalize wealth and the genocidal implications and potential of such incarceration.
Militant disability rights advocacy for all was what unified us in the CRPD drafting and negotiations, isn’t it time that returned? I am challenging all human rights defenders, all academics in the disability and human rights field, NGOs, all those who claim in good faith to uphold the CRPD to respond to this call.
*Actually, discrimination as harm to oppressed group in the absence of a comparator class was a feature of the US case Olmstead v LC on right to live in the ‘most integrated setting’. However, the term ‘substantive equality’ does not appear in the decision and paternalism is present in the qualifier that only ‘unnecessary’ institutionalization as determined by ‘the state’s treating professionals’ constitutes discrimination.
Tina Minkowitz (c) 2018
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