The ‘Liberal’ Heritage: Equality Rights and the Law

The historical antecedents of the standard sex equality argument can be found in the work of seventeenth — and eighteenth-century political and philosophical liberal theory. This is a period commonly termed the Enlightenment, marked as it is by a European philosophical movement whose basic belief was the superiority of reason as a guide to knowledge and human behaviour. Liberal theory contested the divine right of monarchs to political rule. It argued that men of propertied classes should have equal rights of citizenship. These were: the right to vote and to hold political office and the right to hold property in one’s own name.

Arising from this period the writings of Mary Wollstonecraft (Thoughts on the Education of Daughters, 1787, A Vindication of the Rights of Woman, 1792) and John Stuart Mill (On The Subjection of Women, 1869) are often cited as forming the cornerstone of early feminist campaigns for equality. The basis of these was to argue that the natural justice accorded to men should be extended to women. In building on liberal philosophy the main emphasis in such arguments was that of individual rights.

With its liberal heritage equal rights feminism or formal equality, the two most common terms used here, has been seen to be the most successful form of feminism. This has, for example, reversed a previous absence in public consciousness of the role of women in society and women’s rights to citizenship and equality before the law (Bulbeck, 2000). Indeed, how many of us would now give up our right to vote or our right to an education? Equal rights feminism has, in particular, sought to achieve equality through legislative means in order to secure the rights of the individual. In this respect Ashiagbor identifies four types of equality that inform legal definitions and the processes of law:

First, ontological equality or the fundamental equality of individuals wherein all human beings are considered equal; secondly, equality of opportunity, namely meritocratic access to opportunities such as employment which leaves initial starting points untouched; thirdly, equality of condition, where there is an attempt to make conditions of life equal for relevant social groups; and fourthly, equality of outcome or of result, which would require some form of legislative or other intervention to compensate for inequality in starting points. (1999: 150)

It is equality of opportunity that has been deployed most often in UK law (Ashiagbor, 1999; Belcher, 1999). For example, in the UK the Sex Discrimination Act, 1975 outlawed discrimination on the grounds of sex and marital status in the fields of education and employment and in the provision of goods, facilities and services. The Sex Discrimination Act also established the Equal Opportunities Commission (EOC) that describes its vision as follows:

Our vision is for a society and an economy that enables women and men to fulfil their potential and have their contributions to work and home life equally valued and respected, free from assumptions based on their sex.

We want a society that guarantees equality for women and for men. (http://www. eoc. org. uk/ emphasis in original, accessed 1 June 2001)

As the EOC vision makes clear, the promotion of equal opportunities assumes a ‘no difference’ ‘sameness’ view of the sexes. The language of equal opportunity also conveys its main purpose as the facilitation of a level playing field between women and men so that any individual potentials can be realized within a competitive system. Nonetheless, there are a number of critiques that surround formal equality models. For example, rights-based arguments do not necessarily always work in women’s favour. The supposed gender neutrality of rights-based arguments means that men can argue for their rights as they perceive them to be diminished by feminist activism. The case outlined above of boys’ under-achievement is one example. Smart (1989) also illustrates this issue through the fathers’ rights movement ‘Families need Fathers’. With increasing divorce and the awarding of child custody to mothers, ‘Families need Fathers’ have lobbied successfully that their paternal rights need protecting. As Grosz (1990b: 338) comments ‘men. . . have been able to use anti-discrimination or equal opportunity regulations to secure their own positions as much as women have’.

These formal conceptualizations of equality also do not adequately challenge the existing social order in terms of its hierarchical and competitive basis. Indeed, they can be said to uphold it. This is not only the case in terms of comparisons between women and men, social classes, ethnic groups, and so forth. It is also the case in respect of women as a group or class. Meyers (1997: 64) summarizes critiques of liberal equality arguments by stating that ‘Liberal feminism is primarily an instrument for the advancement of well-off, talented women.’ Similarly, hooks notes the ‘race’ and class privileges in equal rights arguments:

Most people in the United States think of feminism or the more commonly used term ‘women’s lib’ as a movement that aims to make women the social equals of men. This broad definition, popularized by the media and mainstream segments of the movement, raises problematic questions. Since men are not equals in white supremacist, capitalist, patriarchal class structure, which men do women want to be equal to? Do women share a common vision of what equality means? Implicit in this simplistic definition of women’s liberation is a dismissal of race and class as factors that, in conjunction with sexism, determine the extent to which an individual will be discriminated against, exploited, or oppressed. Bour­geois white women interested in women’s rights issues have been satisfied with simple definitions for obvious reasons. Rhetorically placing themselves in the same social category as oppressed women, they were not anxious to call attention to race and class privilege. (hooks, 1997: 23)

It is certainly the case that equality of opportunity policies have not produced equality of outcome (see, for example, Figes, 1994). As Case Study 2 illustrates, there remain considerable disparities in the income levels of women and men despite, in some countries, equal pay legisla­tion. Few women actually do run global corporations or nations. There are even fewer Black and minority ethnic women in such positions. These concerns have led some feminists to argue for more interven­tionist or targeted approaches that would go beyond the individualism of rights-based equality. For example, in a discussion of Black women as a group facing discrimination in the labour market Ashiagbor comments on the individualizing framework of equal opportunities:

Not only are the concepts of equality which inform anti-discrimination law seemingly hostile to the idea of group rights and the recognition of black women as a discrete group within anti-discrimination discourse but the nature of enforcement further reinforces the individualised form of equality which the law sets out to achieve. (1999: 153)

Arguments for group rights are based on the need to recognize that members of particular groups in society, such as minority ethnic groups, disabled people and women, face particular forms of discrimination and disadvantage. Eisenberg outlines the significance of weighting individual rights over group rights as follows:

The principle of equality serves individual well-being by equalizing the resources individuals have available to them to lead good lives. Group rights might be required because some types of resources are only available to individuals through the groups to which they belong. Some minority groups cannot enjoy the security required to build a meaningful and rich cultural context without the additional protection of rights. (2000: 397)

Group rights come under a range of terms that include affirmative action, positive discrimination or quotas. Their aim is to equalize the chances or outcomes between groups in society rather than individuals. Bacchi comments on the range of programmes that can be termed affirmative action:

Affirmative action, a term which originated in the United States, refers to a range of programmes directed towards targeted groups to redress their inequality. Broadly it takes two forms: policies to alter the composition of the labour force, and/or policies to increase the representativeness of public committees, political parties, and educational institutions. (1996: 15)

There is considerable variation internationally in the take-up and implementation of affirmative and positive action policies, as with equal rights policies more generally. For example, ‘positive discrimination’ or ‘affirmative action’ is unlawful in the UK. Instead, the overall principle is that issues such as recruitment and promotion must be undertaken on merit and irrespective of sex (Belcher, 1999). Chalude et al. (1994) report on the legal measures that have been developed within the European Union to enhance women’s professional equality. These include more attenuated positive action programmes to ‘allow better access for women to jobs where they have been underrepresented, better career and training opportunities, better relationships with their family and enhanced career responsibilities’ (ibid.: 291). Chalude et al. note, however, that the legal framework for positive action varies for each country of the European Union. In the UK ‘positive action’ is per­missible and is ‘directed at equalizing opportunities, in line with the liberal conception of equality’ (Belcher, 1999: 45). For example, train­ing bodies can provide women-only access to training only in sectors of employment where women are significantly under-represented.

Case Study 3: Equal Opportunities and Positive Action in the British National Health Service

Iganski et al. (2001) comment that there are two main arguments that are offered to support equal opportunities measures. The first is that of justice arguments around fairness and equity that have been forwarded by feminists and others. The second is termed the ‘business case’ and is distinguished by its call to utilitarian, pragmatic self-interest. It is the latter argument that has been most persuasive in Britain for encouraging the take-up of equal opportunities policies.

Iganski et al.’s research is concerned with an analysis of positive action policies that were implemented by the British National Health Service (NHS). Their particular sphere of concern is analysing the extent to which positive action policies facilitated the recruitment of minority ethnic groups into nursing and midwifery. Their methodolo­gical approach was to select eight case studies from 50 nurse education centres in England that were responsible for initial registration training. However, Iganski et al. were not primarily concerned to select a representative sample of case studies. Rather their approach was based on the critical case approach whereby ‘the method adopted entailed deliberately seeking out circumstances most likely to be favourable to the development and implementation of equal opportunities and posi­tive action provisions’ (ibid.: 299). For this reason the case studies were selected on the basis of their location in areas with high levels of minority ethnic communities. Empirical data was then collected through 81 semi-structured interviews conducted in 1996 and 1997.

The findings from Iganski et al.’s research illustrate how legislative change is no guarantor of social change. Their findings therefore illustrate the variability of implementation, necessary resourcing, organizational commitment and indeed understanding of equal opportunities issues. In all of the case study nurse education centres that were selected

few positive action provisions had been established which were adequately resourced, part of a systematic strategy of targeting minority ethnic communities, or informed by data on those communities and on the characteristics of applicants and student cohorts. Most of the measures encountered were inappropriately resourced and ad hoc and commonly relied on the initiative of particularly committed individuals. (ibid.: 312)

Iganski et al. suggest that the reasons why so few effective initiatives were in place were ‘the availability/acceptance of a rationale for action, the availability of information about the ethnic composition of student

populations and the local labour force, and the existence of a strategy for action’ (ibid.). Overall, Iganski et al. argue that what is required is an effective national strategy that links the justice/moral case for equal opportunities with the business case.

Principally because of the assumption of ‘no difference’ in equality laws, the issue of group rights is one that has proved to be quite controversial. For example Bacchi (1996: 20) comments: ‘Because antidiscrimination legislation is couched in race — and sex-neutral language, it has been possible to argue that legislation like affirmative action which targets ‘‘women’’ or ‘‘Blacks’’ is a kind of discrimination, albeit ‘‘reverse dis­crimination’’.’ Bacchi goes on to say: ‘The dominant current understand­ing, even among supporters of the reform [for affirmative action] is that affirmative action means ‘‘preferential’’ treatment to assist ‘‘disadvan­taged’’ people to move into better jobs’ (ibid.: 33). Similarly, Eisenberg (2000: 397) comments: ‘the benefits to individual well-being of any system based on group rights must be weighted against the costs of potentially undermining social cohesion and essentializing group identity’.

More generally, Bacchi (1996) comments that anti-discrimination legislation is minimally interventionist. For example, such legislation is based on a foundational assumption that primarily society’s rules are generally functioning quite fairly. It is only when ‘discrimination’ occurs that intervention is necessary. The form of intervention is also relatively minimalist as it is only activated when an individual draws attention to discriminatory action through court action. In addition, such legislation maintains a distinction between the private and the public by exempt­ing, for example, private schools and single sex clubs. Finally, equal opportunity approaches are critiqued in terms of their relatively limited conception of equality. In particular, the denial of ‘difference’ is seen to present innumerable problems that restrict the potential meanings of equality. While these issues are more fully explored in the following chapter, I shall now indicate the centrality of motherhood to some conceptualizations of equality.

Equal but Different, Equal and Different: The Centrality of Motherhood

The ideology of the organised white, middle-class women’s move­ment in nineteenth-century Britain, Australia, and America, was

more of a piece than is often assumed. Concerning functional and metaphysical issues, feminists in this movement in the main shared a common vision. They believed that the maternal function was vitally important and that women were suited by nature for this role. They also believed that women were ‘equal’ to men in the sense that they shared a common human spirit. Women were equal, but different in their social function as childrearers and in their distinctive maternal character.

(Bacchi, 1990: 6)

Bacchi’s analysis of eighteenth — and nineteenth-century feminism high­lights how the issue of women’s sameness and difference was perceived in terms of an equal but different view. The ‘sameness’ arguments are those outlined above. Women were viewed as having equal intellectual capabilities and their common humanity with men meant that they should be granted the same rights and freedoms. However, their maternal difference was such that they would naturally also be the homemakers and carers of children. The work of Mary Wollstonecraft illustrates this position well. As I have commented, Mary Wollstonecraft is commonly seen as the originator of the movement for women’s rights. In particular, she argued strongly for women’s access to education. Nevertheless, the basis of her argument was not only that education was a natural right for both sexes. Wollstonecraft argued that education would make women better wives and mothers as it would create the mental discipline necessary to ensure that they were not flighty or frivolous. It would also increase their sense of autonomy so that they would no longer be slaves to their emotions. In this, therefore, Wollstonecraft and those who initially followed her were not concerned with changing the social roles of women and men. Indeed, they believed that women were morally superior and the care of children was woman’s highest calling. Thus, Mill and his contemporaries in the nineteenth century would have approved of women’s primary roles as mothers because ‘the hand that rocked the cradle belonged to the most elevating of all minds’ (Robson and Robson, 1994: xxxiv). In so doing, women would have an equal but different place in the social order.

The ‘rights’-based model of first-wave feminism did not, therefore, aim to challenge the ways in which social roles are gendered. Rather, it was assumed that individual rights would give women the right to choose between a public life in civic pursuits or a life as a wife and mother. It was also assumed that most women would choose mother­hood (Robson and Robson, 1994). Indeed, first-wave feminists did not question the sanctity of motherhood but assumed that this was a woman’s ‘natural’ calling. In part this is because in moral terms motherhood is often perceived as the epitome of selfless love. In societies that are heavily influenced by market capitalism with its individualistic and competitive values, motherhood is taken in a range of writings to metaphorically express an idealization of the many relationships and experiences to which a feminist world could aspire (Umansky, 1996).

The division between identifiable factions of ‘sameness’ and ‘differ­ence’ arose, according to Bacchi, in the inter-war years when the question of whether or not married women should engage in paid employment came to the fore. These divisions were part of broader political divisions between laissez-faire individualism (Gesellschaft) and welfarism (Gemeinschaft). The ensuing debates were set between the idea that women should forego their maternal duties and engage in equal competition with men (i. e. ‘sameness’) or accept their traditional roles within the home (i. e. ‘difference’). For example, early second-wave feminism is particularly noted for how it theorized motherhood as an oppressive institution. Such feminists focused on women’s financial dependency in marriage, their overwhelming responsibilities for child­care and the isolation and ensuing depression that women felt when being at home alone caring for young children. In addition, the intran­sigence of the public worlds of paid employment and politics to the requirements of childcare left women with either choosing motherhood or paid employment or working the ‘double shift’. In terms of what can be seen as a counter-discursive strategy within feminism to these critiques and as offering a political resolution of these problems, ‘The ‘‘female as superior’’ construct was re-activated’ (Bacchi, 1990: 87). This was particularly through the work of cultural and radical feminists.

‘Cultural feminism spoke about the existence of a separate female or woman’s culture based upon distinctively female characteristics such as nurturance, care and the ability to relate to others. These were the characteristics traditionally assigned to women but now they were to be valued not denigrated’ (ibid.: 86). Similarly, Bohan (1997: 32) com­ments that cultural feminism ‘presents traits deemed distinctively women’s as indeed different from but equal or even preferable to those that characterize men in general. Thus, difference is affirmed, but the customary valuation of difference is turned on its head; women’s ways of being are revered rather than demeaned.’ The work of Noddings (1984) and Ruddick (1980) are often cited as exemplars of this per­spective. Noddings took up the argument of Gilligan (1982) that an expanded view of moral development was required which included women’s ways of reasoning. Noddings saw the maternal relationship as the epitome of the virtuous relationship. Her work has been particularly influential in the field of education where it has been taken up in terms of classroom pedagogies and school management.

Ruddick recognizes the oppressive nature of motherhood that arises from women’s sense of powerlessness and the intensity of mothering work. Nevertheless, she comments that ‘to suggest that mothers are principally victims of a kind of crippling work is an egregiously inaccurate account of women’s own experience as mothers and daughters’ (Ruddick, 1997: 585). Ruddick puts love at the centre of her analysis of motherhood. Indeed, she comments on how a mother’s love survives the most inhospitable conditions of poverty, social isolation and denigration. She also reflects on how important motherly love is to the development and well-being of the child. Thus love ‘when realized, invigorate preservation and enable growth. . . the capacity of attention and the virtue of love is at once the foundation and the corrective of maternal thought’ (ibid.: 595). Maternal thinking, Ruddick argues, should be extended to the public spheres of life.

The major critique made of these perspectives is that of essentialism. Bohan offers the following conceptualization:

Essentialist views construe gender as resident within the individual, a quality or trait describing one’s personality, cognitive process, moral judgement, etc. Thus, it is an essentialist stance to argue that ‘relationality’ or a ‘morality of justice’ is a quality possessed by the individual. Essen­tialist models, thus, portray gender in terms of fundamental attributes that are conceived as internal, persistent, and generally separate from the on­going experience of interaction with the daily sociopolitical contexts of one’s life. (1997: 32-3)

Essentialism has become a key word in policing feminist thought. To have one’s work labelled as ‘essentialist’ is to be called to account. The charge of essentialism suggests that one’s analysis has, for example, failed to acknowledge diversity, failed to take account of the historical, cultural and political locatedness of meanings and has implied that women do not have access to other modes of being (ibid.). In particular, essentialism is often compared with social constructionism, which Bohan defines as:

By way of analogy, consider the difference between describing an indi­vidual as friendly and describing a conversation as friendly. In the former case, ‘friendly’ is construed as a trait of the person, an ‘essential’ com­ponent to her or his personality. In the latter, ‘friendly’ describes the nature of the interaction occurring between or among people. Friendly here has a particular meaning that is agreed upon by the participants, that is compatible with its meaning to their social reference groups, and that is reaffirmed by the process of engaging in this interaction. Although the essentialist view of gender sees it as analogous to the friendly person, the constructionist sees gender as analogous to the friendly conversation. (ibid.: 33)

The intense debate that has ensued over the meanings and implications of essentialism has led to some rethinking about the relationship between the biological determinism of essentialism and social construc­tionism (see Schor and Weed, 1994). For example, Bulbeck (2000: 51) compares the problems of both perspectives in terms that ‘Most of us know that essentialism is a ‘‘bad thing,” simplifying a complex reality into a single cause; possibly politically reactive if it takes a form such as biological essentialism. Constructionism can, however, produce a claim that identities are totally fluid and just a matter of performance.’ In an interview (Spivak with Rooney, 1994), Spivak reflects on how she has been attributed with arguing that essentialism is an important strategic tool in feminist politics. Spivak comments that the widespread take-up of her comments on essentialism has led her to slightly change her original view. In particular, she notes that there are dangers in an unreflexive assertion of strategic value as this ‘gives a certain alibi to essentialism’ (ibid.: 155). She cautions that it requires vigilance in order to build for difference.

The strength of critiques of essentialism should not be read as assuming that feminists have rejected the potential of exploring the ‘feminine’. In a discussion of Italian feminist arguments that surround the concept of equality, Bock and James (1992) note that while there is a considerable amount of consensus with other feminist movements, there are a number of distinctive features that set it apart from both Anglo — American feminism and French feminism. For example, Italian theories and practices of sexual difference (practica and pensiero della differenza sessuale) are less deeply rooted in psychoanalytic theory that is a mark of French feminism. In addition, Italian feminists have drawn very strongly on their experiences with political movements such as the Christian Democrats, who could be described as traditional conserva­tives and the Communist Party who adhered to the view that the ‘woman question’ would be solved through class struggle. Bock and James note that this has meant that Italian feminists:

acquired an exceptionally concrete understanding of what the most ‘progressive’ forces on the male political spectrum understood by women’s equality. To combat the prevalent conception of equality as sameness, as an invitation to join men on men’s terms which feminists came to call

‘emancipationism’, they developed a sophisticated range of theoretical insights and political practices centred on their distinctive notion of female difference, (ibid.: 6)

According to Bock and James, these political experiences have led Italian feminists to argue more strongly than most that there is a male bias in all traditional discourses about women and equality. For example, while some North American analyses of domestic life have argued that the family is a site of both female oppression and power, Italian feminists argue that women are ruled by men in both the private and public domains. Thus, Bock and James note that:

This conclusion contributes to the view, so central to pensiero della differenza sessuale, that a primary, originary female difference has, in all areas of social life, been homologized or assimilated to a male perspective which hides behind a mask of gender neutrality in order to subordinate women. The remedy for this state of affairs cannot lie in the traditional conception of women’s difference, a conception which functions on male terms and has been used to keep women in their inferior place. Rather, so the Italian feminist movement insists, it lies in a new exploration of an autonomous differenza sessuale, understood as a basis for women’s liberty. (ibid.)

In searching for an autonomous sexual difference that is not adapted to the needs of masculinity, Bock and James argue that Italian feminists have focused their attention on those areas of social life that have been the primary locus of women’s domestication. These are maternity and women’s body, language and subjectivity. Their aim is to shape these areas in terms of women’s rather than men’s interests. Nevertheless, lest it appears that such aims would accord with a maternalist stance that can be found in some North American feminism, Italian feminists are not concerned to identify a primary essence of womanhood (see de Lauretis, 1994, for a fuller discussion of Italian feminism and the issue of essentialism). Indeed, they would argue that it is as essentialist to assume that women are the same as men as it is to assume that they are different. Both positions assume some innate nature or essence of being. Rather, their position is one that argues that we cannot know what woman essentially is because this knowledge cannot be gained outside of the past and present conditions to which she is subjected. We can, however, know how womanhood is differentiated from, subordinated to, and shaped by masculinity. Thus, unless women shape these fields of knowledge and practice for themselves, they will remain homologized, that is made to correspond with masculine interests.

In terms of equality, this is expressed in terms of ‘an equal liberty to shape oneself in accordance with whatever differences one finds sig­nificant’ (Bock and James, 1992: 7). Or as Cavarero puts it, this means to be both equal and different:

It is possible to be both different and equal, if each of the two different beings is free and if the kind of equality at stake radically abandons any foundation in the logic of abstract, serializing universalization of the male One. It is possible to be both different and equal if not only a new logical foundation of the concept of equality can be developed, but a new model of society and politics. (1992: 45)

Updated: 01.11.2015 — 19:51