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Substantive equality revisited: A rejoinder to Catharine MacKinnon
Open accessAbstract
In her Reply to my article, Professor MacKinnon argues that the single principle of substantive equality is that of social hierarchy. 1 Hierarchy, in the sense of relationships of domination and subordination, is of course central to my conception of the right to substantive equality. Hierarchy is expressly captured by the first dimension (redressing disadvantage), which moves away from an abstract understanding, to one which concentrates on those who are disempowered or disadvantaged. This understanding is asymmetric in that it specifically distinguishes between classifications aiming to redress inequality and those creating or perpetuating inequality. However, to characterize substantive equality solely in terms of hierarchy obscures the multi-facetted ways in which inequality manifests. As a start, power relationships are not only vertical, as hierarchy would suggest. They are also diagonal, horizontal, and layered. White women may be subordinate relative to men, but dominant relative to black women. They may be privileged in relation to black men where race matters, but subordinate to black men in patriarchal contexts. Hierarchy on its own cannot capture the interaction between these different directions of power. Power can also manifest in importantly different ways. Gay men might be advantaged in the labor force (first dimension), but be subject to stereotyping, stigma, and harassment (second dimension), or be required to cover or assimilate as a condition of such advantage (fourth dimension). Racism can exist as a harm of stigma, stereotyping, prejudice, and violence even if it does not manifest in a particular context as socio-economic disadvantage. Religious and ethnic discrimination may manifest as social exclusion or segregation (third dimension) or pressure to assimilate (fourth dimension). The rationale of the four-dimensional framework is to provide a sufficiently nuanced tool to detect the complex ways in which inequality of power occurs and thereby to be in a position to address them. The principle of substantive equality advocated for draws on many of the insights in Professor MacKinnon’s own work. It is, however, deliberately framed in terms of dimensions, rather than separate lexical principles, to bring together the strengths and counteract the weaknesses of any one alone. To pick off each separate element and criticize it as symmetrical, abstract or disguising hierarchy is to misunderstand the multi-dimensional approach: it is the way in which the dimensions buttress one another that is central to this conception. Professor MacKinnon suggests that stereotyping could be flattened out and turned upside down, making it impossible to tell the difference between privileged stereotypes and those which are subordinate. But within the multi-dimensional conception, stereotyping cannot be used in this symmetric or abstract way. Stereotyping is addressed as a compound conception which also includes stigma, prejudice, and violence. Moreover, this dimension can only be understood together with the other dimensions, namely, redressing disadvantage, enhancing participation, and achieving structural change, including accommodating difference, allowing us to distinguish stereotypes according to their contribution to perpetuating inequality. This dimension is also characterized in relational terms, to capture Fraser’s notion of “recognition harms,” rather than the individualist and a-contextual notion of dignity. It is therefore primarily about ways in which unequal power relations are patterned. From a relational perspective, gendered stereotypes of men can be recognized as furthering inequality for women, for example through the provision of parental leave to mothers but not to fathers. Similarly, Professor MacKinnon isolates the third dimension, participation and voice, arguing that it does not identify whose voices need to be enhanced. However, the conception of substantive equality developed here does not regard participation and voice as determined in abstract but as one of four dimensions. The alliance with the first dimension, redressing disadvantage, and the second, stigma, and stereotyping, illuminates the need to facilitate voice for those who are excluded. In this way specific attention is drawn to the need to ensure that those who speak are not those who are already in a position of relative power. It also means that the formal or technical right to speak is not sufficient, unless there is also the potential of being heard and engaging in ongoing interchange. Again, embedding the fourth dimension (accommodating difference and structural change or transformation) into a multi-dimensional approach means that it is not capable of supporting “special treatment” which in practice legitimizes inequality, as Professor MacKinnon suggests. This is because of its alliance both with the need to redress disadvantage and to prevent stigma and stereotyping. Measures purportedly “protecting” women should n
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Hierarchy on its own cannot capture the interaction between these different directions of power.”
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“Likewise, in addressing the argument that the applicants had withdrawn their complaints, the Court was able to situate choice within the broader context of lack of power.”
What the sources say
- Not matchedcites [4] 4. Meghan Campbell, Sandra Fredman, & Jaakko Kuosmanen, Transformative Equality: Making the Sustainable Development Goals Work 2016 for Women, 30 ethics & Int'l affaiRs (2016), 177, 180.
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In the paper
“In Opuz v. Turkey, 4 the ECtHR held that the state's failure to give women appropriate protection against gender-based violence constituted sex discrimination.”
What the sources say
- Not matchedcites [4] 4. Meghan Campbell, Sandra Fredman, & Jaakko Kuosmanen, Transformative Equality: Making the Sustainable Development Goals Work 2016 for Women, 30 ethics & Int'l affaiRs (2016), 177, 180.
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In the paper
“Most important was its emphasis on the ways in which stigma, stereotypes and prejudice against women can lead the authorities to refuse to recognize the victims as worthy of state protection.”
What the sources say
- Not matchedcites [4] 4. Meghan Campbell, Sandra Fredman, & Jaakko Kuosmanen, Transformative Equality: Making the Sustainable Development Goals Work 2016 for Women, 30 ethics & Int'l affaiRs (2016), 177, 180.
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In the paper
“By ignoring out-of-school children and dropouts, it failed to genuinely redress disadvantage.”
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“the more serious the offence or the greater the risk of further offences, the more likely that the prosecution should continue in the public interest, even if victims withdraw their complaints.”
What the sources say
- Not matchedcites [5]
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“The fact that the women at risk were already some of the most disadvantaged in Turkey aggravated and reinforced the stereotypical view of women as being in a subordinate position to men and therefore worthy of lower protection.”
What the sources say
- Not matchedcites [4] 4. Meghan Campbell, Sandra Fredman, & Jaakko Kuosmanen, Transformative Equality: Making the Sustainable Development Goals Work 2016 for Women, 30 ethics & Int'l affaiRs (2016), 177, 180.
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In the paper
“For example, conditional cash transfers to mothers are increasingly advocated as ways of dealing with poverty.But when they are conditional on women performing gendered roles, they may reinforce gendered hierarchies even if addressing distributive inequalities.2”
What the sources say
- Not matchedcites [2] 2. Sandra Fredman & Beth Goldblatt, Gender Equality and Human Rights, Discussion Paper for Progress of the World's Women 2015-2016, No. 4 (July 2015), at 1-11.
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In the paper
“However, on closer inspection, it can be seen that this rested on a thin and formal version of equality, which simply looked at aggregate primary school enrolment data, 13 rather than engaging the four dimensions of substantive equality.”
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- Not matchedcites [13]
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“By paying no attention to violence in schools, or gender stereotypes in school curricula, it ignored the recognition dimension.”
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- Probably not a substantial claim. 32
- It may state two separate claims as one. 12
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In the paper
“it is the way in which the dimensions buttress one another that is central to this conception.”
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In the paper
“However, to characterize substantive equality solely in terms of hierarchy obscures the multi-facetted ways in which inequality manifests.”
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In the paper
“Moreover, this dimension can only be understood together with the other dimensions, namely, redressing disadvantage, enhancing participation, and achieving structural change, including accommodating difference, allowing us to distinguish stereotypes according to their contribution to perpetuating inequality.”
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In the paper
“Stereotyping is addressed as a compound conception which also includes stigma, prejudice, and violence.”
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“As a start, power relationships are not only vertical, as hierarchy would suggest.They are also diagonal, horizontal, and layered.”
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In the paper
“Religious and ethnic discrimination may manifest as social exclusion or segregation (third dimension) or pressure to assimilate (fourth dimension).”
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In the paper
“But within the multi-dimensional conception, stereotyping cannot be used in this symmetric or abstract way.”
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In the paper
“Racism can exist as a harm of stigma, stereotyping, prejudice, and violence even if it does not manifest in a particular context as socio-economic disadvantage.”
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In the paper
“Hierarchy, in the sense of relationships of domination and subordination, is of course central to my conception of the right to substantive equality.”
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In the paper
“It is, however, deliberately framed in terms of dimensions, rather than separate lexical principles, to bring together the strengths and counteract the weaknesses of any one alone.”
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In the paper
“However, the conception of substantive equality developed here does not regard participation and voice as determined in abstract but as one of four dimensions.”
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In the paper
“The women's movement has been able to articulate these obstacles in influencing the new agenda for the SDGs, 14 and monitoring their operationalization.”
What the sources say
- Not matchedcites [14]
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In the paper
“It therefore insists that all four dimensions, and their interaction with each other be considered.6”
What the sources say
- Not matchedcites [6]
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In the paper
“Violence against women is characterized as stemming from stereotyped roles (second dimension) whereby women are regarded as subordinate to men, perpetuating widespread practices such as family violence, forced marriage, acid attacks, and female circumcision.”
What the sources say
- Not checked yetcites [3] 3. UN Women Flagship Report, Progress of the World's Women 2015-2016: Transforming Economies: Realising Rights (2015) ch. 1, available at http://progress.unwomen.org/en/2015/chapter1/.
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In the paper
“The alliance with the first dimension, redressing disadvantage, and the second, stigma, and stereotyping, illuminates the need to facilitate voice for those who are excluded.”
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In the paper
“This also assists in redressing stereotypical assumptions of how women behave after experiencing gender-based violence.”
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In the paper
“To bring about real substantive equality, all these dimensions need to be addressed in an interactive form.”
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In the paper
“Moreover, accommodating difference is deliberately allied with structural change, because deep structural changes may be needed to ensure that difference is not penalized and to avoid pressures for conformity.”
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In the paper
“Similarly affirmative action programs which bring with them stigma, or do not tackle underlying structures of domination, will not advance substantive equality.”
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“From a relational perspective, gendered stereotypes of men can be recognized as furthering inequality for women, for example through the provision of parental leave to mothers but not to fathers.”
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In the paper
“Women's political participation is affected and their access to justice rights are submerged due to unsympathetic procedures (third dimension).”
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In the paper
“Thus accommodating religious difference would not pass muster if it silenced the voices of women or others within the religious group.”
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In the paper
“This in turn both stems from and reinforces gendered power relations in society.”
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In the paper
“In this sense, this conception of substantive equality is capable too of escaping legal silos and leaping jurisdictional boundaries.”
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In the paper
“Drawing directly on the multi-dimensional model, 9 the report proposes a three-point framework for action: redressing women's socio-economic disadvantage; addressing stereotyping, stigma, and violence; and strengthening women's agency voice and participation.”
What the sources say
- Not matchedcites [9]
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In the paper
“For example, LaMarche used this framework to evaluate the International Labour Organisation's Social Protection Floor Recommendation 7 from a women's rights perspective.8”
What the sources say
- Not matchedcites [7]
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- Not matchedcites [8]
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In the paper
“As Professor MacKinnon argues, gender based violence (GBV) is indeed a core manifestation of a breach of substantive equality.”
What the sources say
- Not checked yetcites [1] 1. Lucie LaMarche, ILO's Social Protection Floor Recommendation (2012) from a Women's Rights Perspective, (Sept. 15, 2014), available at http://www.unrisd.org/UNRISD/website/newsview.nsf/%28httpNews%29 /31DAC54759E2780DC1257D540043F205?OpenDocument.
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In the paper
“Similarly, it did not take into account the voice of girls; nor require structural changes to be made, such as sanitation provisions for menstruating girls, protection against expulsion for teenage pregnancy and child marriage and equal opportunities for girls leaving school and entering the labor market, including the teaching profession itself.”
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In the paper
“Condoning GBV on the grounds that it happens within the family, or refusing to believe women's accounts of such violence, reflect a deep-seated negation of women as persons, the antithesis of recognition.”
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In the paper
“It also means that the formal or technical right to speak is not sufficient, unless there is also the potential of being heard and engaging in ongoing interchange.”
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In the paper
“As argued in my paper, the interaction between the participative dimension and the disadvantage dimension means that choices should not automatically be regarded as an exercise of participation or agency.”
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In the paper
“This specifically gendered understanding was captured in the Committee on the Convention on the Elimination of All Forms of Discrimination against Women's (CEDAW's) watershed General Recommendation No. 19 on violence against women in 1992.3”
What the sources say
- Not checked yetcites [3] 3. UN Women Flagship Report, Progress of the World's Women 2015-2016: Transforming Economies: Realising Rights (2015) ch. 1, available at http://progress.unwomen.org/en/2015/chapter1/.
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In the paper
“Redistributive measures might address economic disadvantage; but do so in ways that reinforce stereotypes or stigma.”
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In the paper
“Again, embedding the fourth dimension (accommodating difference and structural change or transformation) into a multi-dimensional approach means that it is not capable of supporting”
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In the paper
“The multi-dimensional approach to substantive equality is not intended to reflect the discrimination law of particular systems, although it grows out of that experience.”
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In the paper
“But rather than entailing that substantive equality should be reduced to a single principle, namely hierarchy, it demonstrates the importance of sensitivity to the interaction of several dimensions of inequality.”
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In the paper
“Action taken in all these domains is essential to bring about the fourth, namely the transformation of structures and institutions.10”
What the sources say
- Not matchedcites [10]
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In the paper
“The physical and mental consequences help maintain women in subordinate positions, and contribute to lower levels of education, skills and work opportunities (first dimension).”
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In the paper
“Similarly, the four dimensional framework can be used to evaluate the global commitment to gender equality in the Millennium Development Goals (MDGs) and point the way to improvement in the Sustainable Development Goals (SDGs).11”
What the sources say
- Not matchedcites [11]
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Citations
Cites
Transformative Equality: Making the Sustainable Development Goals Work for Women
Fredman, S., Kuosmanen, J., & Campbell, M. (2016) · Ethics & International Affairs · doi:10.1017/s089267941600006x · Cited by 49
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The case for treating violence against women as a form of sex discrimination in India
Agarwal, A. (2020) · International Journal of Discrimination and the Law · doi:10.1177/1358229120978865 · Cited by 6
“A range of meanings have been attributed to ‘substantive equality’, such as equality of opportunity, equality of results, or a multidimensional concept pursuing several interrelated objectives (see Fredman, 2016a, 2016b; MacKinnon, 2016).”
BackgroundBringing Governance Home: Feminists, Domestic Violence, and the Paradoxes of Rights in India
Mandal, S. (2023) · Feminist Legal Studies · doi:10.1007/s10691-023-09532-x · Cited by 6
“…a number of jurisdictions have since embraced the idea of substantive equality on a variety of justifications and as pursuing many different goals (Fredman 2016a, b), MacKinnon has steadfastly maintained that its “core insight is that inequality, sub-stantively speaking, is always a social…”
InfluentialŞEKLİ EŞİTLİĞİN SINIRLARINI AŞMAK: FREDMAN VE MACKINNON TARTIŞMASI
Akçabay, F. C. (2026) · Ankara Barosu Dergisi · doi:10.30915/abd.1950704
Kherkheulidze, I. (2026) · European Scientific Journal ESJ · doi:10.19044/esj.2026.v22n39p175
A continuing constitutional conversation: Locating Nitisha
Pillai, G. (2022) · International Journal of Discrimination and the Law · doi:10.1177/13582291211070227
“Under an asymmetric understanding, the former is discriminatory while the latter is not (Fredman, 2016b: 747).”
Background
Metadata
- Authors
- Fredman, S.
- Affiliations
- University of Oxford (GB)
- Corresponding author
- Fredman, Sandra
- ORCID
- Fredman, Sandra
- Venue
- International Journal of Constitutional Law
- Publisher
- Oxford University Press (OUP)
- Published
- 2016-07
- Volume
- 14
- Issue
- 3
- Pages
- 747-751
- ISSN
- 1474-2640 (ISSN-L)
- 1474-2659
- OpenAlex
- W2520064354
- Semantic Scholar
- 61d4580004bb2132782d1c224f520f9c3632c22b
- Cited by
- 6
- References
- 1
- Citations by year
- 2026: 2 · 2023: 1 · 2022: 1 · 2021: 1 · 2020: 1
- FWCI
- 0.00
- Type
- journal article
- Language
- en
- Open access
- bronze
- doi.org
- Locations
- International Journal of Constitutional Law (publishedVersion)
- HighWire Press Open Archive (submittedVersion)
- Topics
- Social Sciences › Law › Discrimination and Equality Law
- Social Sciences › Gender Studies › Feminism, Gender, and Sexuality Studies
- Social Sciences › Political Science and International Relations › Political Philosophy and Ethics
- Keywords
- substantive equality, hierarchy, power relations, four-dimensional framework, intersectionality, stereotyping, stigma, racism, social exclusion, assimilation, Catharine MacKinnon, equality law, gender discrimination, sexual orientation discrimination, racial discrimination, religious discrimination, ethnic discrimination, social hierarchy, sexual harassment
About these checks
Registry, retraction, Cites and statistics results are computed, not judged, with one exception: a printed reference that no index lists is read once by a model before it counts as a citation error. Claims are extracted by a model and kept only when their quote appears verbatim in the text; each cited source is then checked, with a model’s help, for whether it says what the claim relies on. Those verdicts can be wrong — read the claim’s quote and the cited source before relying on one.
A language model drew the claims from the paper on 2026-10-11, under version 3 of the claim definition (model deepseek-v4.1-flash, prompt extract-v3).
A second model labelled each claim on 2026-10-11 (model jev-1.13-20260917, definition revision gold-guideline-v0.2).
Statistics and arithmetic are recomputed, not judged.
Confidence bands are shown only for fields calibrated on our annotated test set. None is calibrated yet, so no band is shown.
What counts as a claim ›How we measure confidence ›How we check this ›
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