Catharine MacKinnon and the “Equality Paradox”
Catharine MacKinnon’s legal theory and feminist activism are said to be «hard to forget and easy to misunderstand». Best known for her works on sexual harassment, her critique of pornography, and her analysis of human rights law, she also wrote extensively about anti-discrimination law, feminist jurisprudence, torture, human trafficking, sex equality in legal education, and constitutional law.
A cornerstone of her thought is the «contradiction» identified in sex equality mainstream provisions:
Equality is a sameness and gender is a difference. To define equality in terms of sameness and women as “not the same” thus raises the question whether women will be equal under this approach only when they are no longer women. To consider this question is not to affirm women’s sameness to men or women’s differences from men, but to face a conflict at the point of intersection between the ruling equality paradigm and the social definition of women as such. Sex equality, so understood, appears to be a contradiction in terms.
According to MacKinnon, in fact, the male exercise of power has generated a sort of logical paradox in defining the equality rule. Even if the principle of equality is conceived as one of the pillars of western legal orders, it is still rarely realized – since it is formulated in ambiguous and contradictory terms. In particular, its formulation, which has become the linchpin of analogical juridical logic, appears to be still based on the traditional «treating likes alike and unlikes unalike» formula, commonly referred to the famous excerpt of the Nicomachean Ethics, in which Aristotle defines equality as giving to «equal people» «equal things».
The jurist explains:
[T]here is a group here that sets a standard. Then there is a group that is supposed to meet that standard. But the group that sets the standard is unlikely ever to be in the position that the group that needs something done is in. Whenever that occurs, whenever you have an inequality […] you don’t have an equality argument. The dominant measure is set by advantaged peoples. To the extent that a disadvantaged person is close to that measure, they are “the same”; therefore their unequal treatment is an inequality. But to the extent they are close to that measure, the same, they are far less likely to have an inequality problem that needs to be addressed at all. To the extent the disadvantaged person’s situation is far from that measure, thus are likely to have an equality problem that needs to be addressed, but they are likely to be considered “different”. Hence not unequally treated. […] In other words, only when some actual social parity between advantaged and disadvantaged occurs will this equality argument work to challenge whatever disadvantage remains. Only when it is not really needed will it be available. It’s a trap.
This kind of so-called «mainstream» equality is also described as «formal», being conceptualized as an empirical (how one ought to be treated is based on the way one is) and symmetrical (as if on two sides of an equation conjoined with a mathematical sign of equivalence) truth.
Against this view, MacKinnon states that, firstly, the warning about equal treatment of equals does not consider the perimeter of inclusion, and thus exclusion, separating those who are predefined as “equal” and those who are “different”. Thus the problem of justifying the criteria is avoided, leaving the “power to define” in the hands of the powerful. «Aristotle does not defend his comparative empirical approach on normative grounds: he does not ask why one must be the same as someone else before one ought to receive equal consideration or benefit».
Secondly, the logic of the Stagirite requires the adaptation of treatment of one group to the treatment reserved for another group according to the principle “B should be treated as A”. Considering this example, “A” remains a sort of standard and evaluative reference parameter. This «equality approach does not specify the reference points for sameness of treatment». Such an observation is peculiarly clear in the case of sex inequality, where the legal parameter is typically male and the feminine condition should be measured with reference to the male standard. With a metaphor that takes up that formulated by Germaine Greer in The Female Eunuch (1970), MacKinnon recalls the anatomy models at a school of medicine: the human body is male, and all the other peculiarities that characterize the female body are studied in gynaecology.
Thirdly, it should be emphasised that equality could result, as an output, from a specific discriminatory historical background. «If people have been kept unequal, they will often be unequal». In other words, past oppressive conditions have an impact in reproducing inequalities and disadvantages, so that “being” different can be a consequence of a previous discrimination.
Fourthly, the Aristotelian equality looks «indeterminate» and, in this sense, «perverse», because it can be applied to a situation as well as to its opposite, with equal logical consistency. The case of a pregnant worker is a typical example of this ambivalence: according to MacKinnon, who refers to the jurisprudence of the US Supreme Court, a law providing special labour protection could be conceived both as discrimination based on sex or as non-discrimination based on sex depending merely on the Court’s findings.
For all these reasons,
[t]he Aristotelian approach to equality tends to reproduce inequality by seeing the products of dominance as “difference”. Its blindness to hierarchy makes it incapable of producing determinate outcomes in opposition to inequality; it will tend systematically to produce outcomes that reinforce and reproduce social inequality. […] Against major or structural social inequality, it is impotent, even regressive.
By this route the author arrives at a reformulation of the concept of equality in substantial terms, intending it as an absence of dominion. In addition to this negative aspect, however, she adds a positive obligation, which through groups’ reclaiming actions must be brought to the attention of the institutions: the fundamental purpose of the social community is to foster substantive equality, compensating for the spontaneous tension surrounding the subjugation of the weak, typical of human nature. Thus, looking at the example of the Black civil rights movement, she emphasises the aspiration to transform social hierarchies from the bottom up. Understanding social inequality as pervasive rather than exceptional, she adopts the view that «law has done, it must undo, and what it has not rectified, it should».
The new paradigm of substantive equality found a first jurisprudential recognition in the 1989 Andrews vs. Law Society of British Columbia case, before the Supreme Court of Canada. The suit was brought under the equality provisions of the Canadian Charter of Rights and Freedoms (1985), whose Section 15 provided “Equality Rights”. The decision recognized the value of formal equality but rejected it as defining the core meaning of the legal equality guarantees, promoting instead the need for a concrete context-sensitive test and requiring that law and policy should «promote equality» in order to be conceived as constitutional. Andrews focused on «advantage and disadvantage rather than equivalence and distinction, [r]evealing that the opposite of equality is hierarchy, not difference, [and] understanding social inequality as vertical rather than horizontal in nature».
After this breakthrough, in subsequent cases, the Supreme Court of Canada came back to perform formal equality in the name of substance miring «in a well-intended but vacuous and damaging focus on dignitary loss at the sine qua non of inequality. Having wriggled at least nominally free of Aristotle, it fell into the grip of Kant». In the 2008 R. v. Kapp case, however, the Court noted that the concept of dignity is «abstract and subjective», and it could be «confusing and difficult to apply», potentially creating barriers for disadvantaged groups. Canada returned therefore to the recognition of a concrete and material equality, rooted in specific discriminatory backgrounds.
To this extent, MacKinnon’s view of substantive inequality unequivocally focuses on discrimination, i.e. an unjustified or disproportionate treatment or disadvantage depending on the membership to a certain oppressed group, rather than on sameness or differences. «Inequality, substantively speaking, is always a social relation of rank ordering», concretely actualized in specific domains ‒ which could even intersect and overlap. Every inequality «fact» is specific and distinctive, but it is always hierarchy that marks it.
* Serena Vantin is Research fellow at the Law Department of the University of Modena and Reggio Emilia, Italy. She also works at CRID – Interdepartmental Research Centre on Discrimination and vulnerabilities (www.crid.unimore.it).
 C. Littleton, “Feminist Jurisprudence: The Difference Method Makes”, Stanford Law Review, 41 (3): 751-784; see also D.M. Peña-Guzmán, “MacKinnon, Catharine”, in M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy, Springer, Dordrecht, 2018 (on-line edition).
 See, inter alia, C. MacKinnon, Sexual Harassment on Working Women. A Case of Sex Discrimination, Yale University Press, New Haven, 1979; C. MacKinnon, Towards a Feminist Theory of the State, Harvard University Press, Cambridge (MA), 1989; C. MacKinnon, Only Words, Harvard University Press, Cambridge, MA, 1993; C. MacKinnon, Women’s Lives, Men’s Laws, Harvard University Press, Cambridge, MA, 2005; C. MacKinnon, Are Women Human? And Other International Dialogues, Harvard University Press, Cambridge, MA, 2006; C. MacKinnon, Gender in Constitutional Law, Edward Elgar Publishing, Cheltenham, 2018.
 C. MacKinnon, Sex Equality, Foundation Press, New York, 2001, p. 20.
 C. MacKinnon, Butterfly Politics, Harvard University Press, Cambridge, MA, 2017, p. 111.
 Aristotle, Etica Nicomachea, 1131a, 23.
 Ivi, pp. 115-116.
 C. MacKinnon, Sex Equality, cit., pp. 20 and ff.
 Ivi, p. 6.
 Ivi, p. 7.
 G. Greer, The Female Eunuch (1970), Bantam Books, London, 1972, p. 21.
 C. MacKinnon, Feminism Unmodified. Discourses on Life and Law, Harvard University Press, Cambridge, MA, 1987, pp. 32-45.
 C. MacKinnon, Sex Equality, cit., p. 7.
 C. MacKinnon, “Substantive Equality. A Perspective” Minnesota Law Review, 2011: 1-27, in part. 5-6.
 C. MacKinnon, Sex Equality, cit., p. 10.
 Ivi, p. 21.
 Ivi, pp. 25-27.
 C. MacKinnon, Butterfly Politics, cit., p. 313.
 C. MacKinnon, “Substantive Equality. A Perspective”, cit., p. 11.
 Ivi, p. 12.