Beyond Comparison: Sex and Discrimination

By Timothy Macklem | Go to book overview

1
The Issues

I. Discrimination and Equality

It is a hot summer's day, ice-cream weather, sunbathing-in-the-park weather. A woman walks down the street, bare-breasted. Asked to cover herself, she refuses. As she sees it, indeed as she explains it to the police officer, if a man is entitled to appear in public naked to the waist, as he certainly is, she is entitled to do the same. It would be discriminatory, she insists, for the law to deny this and so treat her behaviour as indecent. Is she right? Does a woman's nakedness mean the same thing as a man's? If not, should it? What is gained by understanding discrimination in this way? What is lost?

The complexity and significance of the problem become clearer when it is looked at from the opposite perspective. Suppose it is true that a woman, like a man, is entitled to appear in public naked to the waist, in hot weather at least (as in fact the courts decided).1 What makes this so? The answer has large implications for our understanding of both sexual difference and the nature of value. Whatever may have been claimed by the topless pedestrian in question, it cannot be the case that there are meaningful differences between the sexes, yet that women are entitled to do whatever men are entitled to do (and vice versa), without regard to those differences. That would be to suggest that sexual difference is at once, in the same settings and for the same purposes, both meaningful and not meaningful, relevant and irrelevant. If men and women are to enjoy the same entitlements, despite the apparent differences between them, either our understanding of sexual difference or our understanding of value must give way. It is not possible for us, as individuals or as a society, to maintain a commitment both to the idea that people are not to be distinguished and to recognizing the characteristics and values that distinguish them.

If a woman is as free as a man to go topless in hot weather, it must be because, contrary to what has been conventionally assumed, there is no difference

____________________
1
R. v. Jacob, 31 O.R. (3d) 350; 142 D.L.R. (4th) 411 (C.A., 1996).

-1-

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Beyond Comparison: Sex and Discrimination
Table of contents

Table of contents

  • Cambridge Studies in Philosophy and Law *
  • Title Page *
  • Contents ix
  • Acknowledgments xi
  • 1 - The Issues 1
  • 2 - Equality 42
  • 3 - Difference 78
  • 4 - Reasons for Feminism 107
  • 5 - The Value of Diversity 120
  • 6 - The Character of Disadvantage 135
  • 7 - The Role of Sexual Identity in a Successful Life 157
  • 8 - Equality, Difference, and the Law 192
  • Index 209
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