Toward Substantive Equality: A Feminist Critique of the Notion of Difference in the Canadian and South African Equality Tests

Abstract

Difference is implicitly measured against a standaro of ‘normality’ which upon closer inspection reveals the traits of society's dominant group — white Christian heterosexual able-bodied men. Those falling short of this benchmark are outcast as ‘different’. Although feminists long critiqued the hegemony of this standard, it was with limited success. In the early 1990's, however Martha Minow inspired a paradigm shift of our perception of difference, principally recognizing that difference is not fixed in the sense that it belongs to someone, but is variable, dependent on the comparator groups under review and the perspective of the person naming the difference. This theoretical leap has profound consequences for a substantive reading of equality. And yet the South African and Canadian courts have been slow to apply it to their equality jurisprudence. This paper examines the Canadian and South African equality tests and some of their more recent case law, concluding that the absence of a relational construction of difference perpetuates a formal application of equality.