Law

Foreword
This paper is based on the analysis of the legal concept of equality.

Thesis
Equality represents a complex concept consisting of formal and substantive equality perspectives realized applied by the court in relation to various social issues

Purpose of the Study
The purpose of the research paper is to analyze the issue of equality, and more importantly a balance between formal and substantive equality in relation to the spirit and purpose of section 15 of the Canadian Charter of Rights and Freedoms and the appropriate treatment of sex differences.

Statement of the Problem
Equality is an inseparable attribute of any democratic society which is guaranteed to all individuals. In past times the perspective of formal equality was applied for determining fairness of all the issues related to the given phenomenon. Development of feminist movement, establishment of equal rights and opportunities for all the members of human society, and many other issues facing contemporary society are more likely to turn a broad variety of factors to determine what is fair from the perspective of substantive equality. Mutual coexistence of formal and substantive equality typical of the Canadian society creates difficulties connected to definition of certain factors which may or may not be justified in accordance to perspective of formal or substantial equality. Such difficulties are related to the courts dealing with cases of unequal treatment, sex differences, etc. Due to these obstacles, there has to be established an appropriate balance between formal and substantial equality in relation to the spirit and major purposes of section 15 of the Canadian Charter of Rights and Freedoms.

Hypothesis 1
Establishment of proper balance between formal and substantive equality will increase productivity of courts performance in relation to the issue of equality granted by section 15 of the Charter.

Research Questions
The research questions being investigated are
What is meant by formal and substantive equality
How does substantive and formal equality reflect the purpose and objectives of section 15 of the Charter
How might be perspectives of formal and substantive equality applied in relation to the issues of differential treatment
What is the role of formal substantive equality in the modern world and in the future

Definition of Terms

Formal equality
Formal equality is achieved by treating like persons alike and unlike persons unlike. (Introduction to equality and the Charter, 1996, p. 20)

Substantive equality represents a comparative concept of legal treatment which may be influenced by differences typical of society, its spheres and members (Andrews v. The Law Society of British Columbia, 1996, pp. 22-23).

Equality represents one of the constituting parts of human personality. Equal rights and opportunities for self-realization in the world influence human dignity, understanding of ones worthiness, and place in human society. In different times the concept of equality played a significant role in peoples lives despite of historical perspective, equality meant certain privilege for an individual as a participant of social life. In democratic society equality defines one of the human fundamental rights or privileges granted by law. Section 15 of the Canadian Charter of Rights and Freedoms states, that everyone has the right to equality without discrimination on the basis of sex. Formal and substantive equality are the two concepts developed in response to modern society, its varied structure, views, and perceptions of life processes. A proper balance between formal and substantive equality is one of the major mechanisms which may be successfully applied to adequate treatment of equality in regard to sex differences, discrimination, and the other challenges raised by the modern complex society, social groups, and separate individuals.

Legal establishment of equality in the Canadian society is connected to development of section 15 of the Charter which contains the basic provisions connected to equality, its role, and influence on each individual members of the Canadian society. In pre-Charter period equality was regarded as identical treatment of all the individuals. The problem of equality was mostly raised by women looking for legal determination of their position, and influence in society. The Royal Commission on the Status of Women (RCSW) in its report on the status of Canadian women defines equality as freedom from discrimination and the principle that permits no distinction in rights and freedoms between men and women (Razack, 1991, p. 28). Equality of rights and freedoms between men and women refers not merely to the sphere of labor division it is connected to the roles occupied by men and women in society, treatment of their peculiarities in relation to work, family life, social benefits, and personal relations. Regarding feminist movement, it is possible to admit that one of the major targets of feminism is realization of each woman as a personality, active society member, contributing to its development and progress.

There are many views in relation to the role of feminism one of the common opinions is connected to understanding feminism as an attempt of women to gain dominance over men, occupy leading positions in social institutions, and control all the processes of social life. Contrary to this radical vision of feminism, it is necessary to admit that feminist movement in Canada made a large contribution to development of the concept of equality, its meaning and realization in practical life. Equality typical of Canadian society was based on Aristotles concept of formal equality according to which equality is achieved by treating like persons alike and unlike persons unlike (Introduction to equality and the Charter, 1996, p. 20). Such a simplistic vision of equality is applicable to society in which there exists a strict order and social division.
Realization of formal equality in practice may be illustrated by a Biblical parable about the landlord and the hired workers described in Mt. 201-17. The parable describes the landlord hiring workers for his vineyard at different periods of the day. Some of the workers were recruited early in the morning and worked the whole day long the others started their work in the afternoon, and still others worked only one hour till the end of the workday. In the evening, all of the workers received equal sum of money regardless of the total amount of time they worked (New Testament). Such compensation was considered to be fair as it reflected the initial agreement between the landlord and all of his workers. Analyzing the given parable from the perspective of the modern world, it is possible to assume that legal norms and provisions existing in modern society would treat the same situations on quite a different way. There might be claims concerning discrimination of human labor, unfair compensation, and many other issues. Though, the parable illustrates formal equality in its relation to fairness and treating alike persons alike.

Referring to the text of section 15 of the Charter it becomes evident that formal equality in its relation to fairness corresponds to the following provisions Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law (Constitution Act, 1982). In regard to the above mentioned provisions, formal equality provides equal opportunity for all individuals to be protected to law and use it for their benefit connected to distribution of resources to which we are entitled on the basis of our common humanity as rational beings (Razack, 1991, p. 49). This view on formal or liberal equality in its application to practical life seems to be too general a concept and does not correspond to the varied structure of modern society represented by numerous groups, their own beliefs and perceptions of social life which are different from the stereotypical mode of human relations.

Feminist views on equality were brightly represented by organization and activity of LEAF founded in 1982 at the time of adoption of section 15 of the Canadian Charter of Rights and Freedoms. LEAF represents feminist organization aimed at support of womens positions in regard to equality and its protection in the courts in relation to the issues of discrimination on the basis of sex, race, religion, etc. Constitutional lobbying as the main mechanism of LEAF served the function of enabling women to articulate precisely their vision of equality (Razack, 1991, p. 35). Womens vision of equality doesnt support equality in its liberal roots. One of the major characteristics of formal equality as regarded by feminists was its neutrality in relation to a particular case. Neutrality means no support for either of the participants of a certain case. On the one hand, neutrality means fairness in decisions regardless of the interests, conditions, or arguments typical of any of the participants of the case. On the other hand, neutrality of formal equality might cause unintentional discrimination resulting in further complications of a certain case. Among the major disadvantages of formal equality is its inability to define the criteria according to which people may be treated alike or unlike. Furthermore, formal equality doesnt allow establishing the main categories of criteria for comparison and treating people as alike or unlike (Introduction to equality and the Charter, 1996, p. 20).

Equality in its broader sense and influence on social issues was supported by feminist movement. Such equality was defined as substantive equality which represents a comparative concept which may be influenced by differences typical of society, its spheres and members (Andrews v. The Law Society of British Columbia, 1996, pp. 22-23). The key principles of substantive equality include analysis of the possible impact of a certain law on social groups and individual society members having their own peculiarities in regard to social norms, standards, and principles recognition of patterns of disadvantage, offence, and oppression which may be imposed by legal norms or provisions significant attention to varied treatment of social life experience by different groups in accordance to their religious beliefs, orientation, and attitudes to life in all its aspects. These principles of substantive equality were regarded by feminists as correct principles which might be applied to equality as a social phenomenon and legal issue.

Substantive equality is devoid of neutrality instead it is related to the content of each separate case, its conditions, participants, their arguments, and obstacles supporting the development of a certain case. The Eldridge case is a bright representation of the courts reliance on substantive equality perspective. The importance of substantive equality may be supported by the fact that identical treatment of all the members of human society is atypical for the present day life. Identical treatment excludes sexual minorities, people with disabilities, and certain religious groups consisting of the ordinary society members who work and live for society benefit, its development and future progress.

Women have utilized a majority of strategies both in the past and present times in their search for equality. Unions have reflected the ability to showcase womens problems at a widely based platform which has in turn led to an evolutionary transformation of equality perspectives. Having become their safety haven, women enroll in such unions in large numbers. Moreover, they have led feminist movements in promoting their agenda focusing on all gender equality issues. They are also characteristic of upfront initiation of action and tenacious defense. Labor issues which often affect women in regard to employment have become easier to resolve. In essence women under the umbrella of a union are better placed to face employers. This is mainly because employers have to choice but to acknowledge their female employees plights. The backbone of unions has also given them a courageous front which prompts them to complain when they are subjected to discrimination. In the absence of legal provisions negotiation becomes the only tool for equality and it is them that unions come in as such powerful forces.

LEAF developed an approach which was meant to delegate the charter provisions on sexual equality. The approach sought to assert the vitality of viewing constitutional equality on the basis of womens experiences. As such, they emphasized that claims of sexual equality be evaluated within the contexts of power relations and impacts of womens subordination. This perspective created a clear distinction between formal and substantive equality. Legal guidelines no longer insisted on the basic dynamics of sexual equality but on a larger spectrum of comparison. Even though formal equality does create a foundation for determining discrimination, its continued use may dispel the very elements of equality it aims to protect. The support for formal equality may be argued in reference to its ability to inhibit illogical decision making processes. Any defects which may be introduced in decision making processes meant to depict the fate of womens issues are rid by formal equality. However, with the injecting of substantive equality in such processes it becomes possible to ensure equality for women successfully.

It has been argued that the neutrality of formal equality is nothing short of illusions. Questions arise on whether there are indeed parties in law who can claim total neutrality. As a result this form of equality has been established as ineffective in dealing with certain equality controversial issues. Indeed, with its masquerade of independence, formal equality detaches from the reality of substantive rights. Both human rights and womens equality must coexist harmoniously for effective function. Substantive equality seems to achieve this while formal equality creates a dichotomy. The concentration on comparison has further reduced the popularity of formal equality and encouraged substantive equality especially in todays modern world.
Opportunities have not often come easy for women and creating this form of equality mandates a conceptual framework which disregards the elements of formal equality. Opportunities for women have to be redistributed under new guidelines which take into consideration their individual plights. Women are regarded according to their backgrounds and giving preference to the grave need for the opportunities. Another concept which has supported the use of substantive equality is the equality of outcomes. Here legal provisions and policies instigate equality through affirmative action, positive and reverse discrimination. Positive discrimination of women entails treating them favorably because they are women. This concept works in wide jurisdictions where the focus is to address general forms of past discriminations. This refers to instances when women are given educational opportunities as a way of promoting women education or a basic need for female empowerment in the society. The main agenda here is to recognize the value of different treatment in promoting equality. Other sectors where this concept has gain popularity include the field of politics. In politics, the issue of equality has prompted the special treatment of female politicians seeking political positions. Therefore, there is a consideration of outcome. If the expectations of particular actions are to create equality positive discrimination becomes inevitable.

Organization of Women Legal Education and Action Fund (LEAF), adoption of its statute and definition of the major objectives was a huge step on the way to equality. Activity of LEAF, its influence on realization of equality concept in legal decision-making marked an important shift from equality formal to equality substantive. Such equality had to be understood by the majority of women following their interests and protecting rights, it had to be beneficial to their needs and expectations.

LEAF has over the years ensured that they carry out high impact litigation processes in the search for women equity. Their role has been and still remains to ensure that law courts are predisposed to interpreting equality on a gender based perspective. This approach has been applied even in cases which have not centered on women. The effectiveness in litigation is evident how the judicial system has adopted a majority of the concepts and propositions made by LEAF in its numerous court cases. In the Andrew v. Law Society of British Columbia (1989), LEAF showcased a sound reevaluation of the equality provision of the Charter. The outcome depicted an affirmation of the Charters provisions as functioning to benefit the historically disadvantaged. In turn, this ruling dissuaded the instigation of reverse discrimination arguments from those who may have benefited from previous legislation developed by the high class (Jhappan, 2002). LEAF has had great success and participated in many cases where all forms of gender biases and issues have been portrayed. Legal expertise is provided in scrutinizing and depicting those relationships which exist between the fundamental causation factors of women inequality and the laws which foster and normalize inequality. It continues to represent women despite the upcoming challenges.

LEAF as well as many other organizations protecting rights and interests of women made a large contribution to legislature regarding gender relations, equality issues, and many other important things. Substantive equality different from the equality formal completely reflects the purpose and the objectives of section 15 of the Charter. The given section is believed to grant the necessary conditions, opportunities, and laws for women to enjoy different kinds of social benefits historically formed for and enjoyed by men.

Particularity has played a substantial role in enhancing the positive outcomes of most of the cases handled by LEAF. Having moved from an essentialism approach whose effectiveness was challenged and this led to the failure of promoting women equality. Particularity calls for the representation of the experiences and concerns of diverse women. Target is directed at an expansive outreach program which involves the inclusiveness of all kinds of women be it colored, immigrants, lesbians or even those with disabilities. Also, most efforts are employed in addressing those areas where women face great vulnerability for discrimination. This orients cases of racial discrimination, sexual identities and disabilities among others. This perspective has better prospects of achieving women equity because of its diversity. The ideal that the law remains the sole protector and regulator of equality is cemented in the constitution (Introduction to equality and the Charter, 1996). LEAF has utilized law courts in their adamant search for equality.

The debate on women equality inevitably attracts the issue of sex differences, discrimination and differential treatment. Sex difference is established by nature but defined by legal principles. It however, differs from sex discrimination and does not necessarily imply different treatment. In essence not all social groups can be treated the same. Following this, balance has been established in the differential treatment of the various societal groups. Sex differentiation refers to the treatment of people as of equal stature but then acknowledging their sex difference. This notion is not in itself illegal but this is conditioned by the absence of disadvantageous outcomes. Even though a balance is sought to create a distinction and draw a line between harmless differentiation and discrimination, sex differentiation is dependent on gender expectations. The stereotypes which dominate the society harbor negative perspectives on womens capabilities. Considered as the weaker sex, women suffer discrimination which is often propagated in the context of sexual differentiation. As a result, inequality is further perpetuated within most societal mainstreams.

Sex differentiation can be demonstrated in case scenarios which regard the femininity and masculinity of individuals. Sports teams have been formed with these characteristics in mind and under the circumstances sex differentiation is authenticated. As such curriculums for physical education entail boys to be in one group and girls in another. Issues of women inequality have been observed in this field especially when this form of grouping indicates that there exist discriminatory tendencies. Legalities concerning sex differentiated pairings allow this on the grounds that both groups accrue similar benefits. However, it becomes problematic to establish this.

Equality without discrimination on the basis of sex is an inseparable element of democratic society which supports the rights and freedoms of its members. Discrimination and differential treatment based on sex or gender differences cannot exist in the modern world with its new approaches to social relations, family life, and the other important affairs.

Women rights have generated a controversial debate over the legalization of abortion in nations where it is not. Sex differences have warranted the primary role of sexual reproduction to women. However, laws have not gone ahead and created similar conditions for them. It becomes difficult to alienate this perspective from gender discrimination. Thomson (1996) asserts that women possess as much the same rights as their unborn child. In retrospect, the claim is to create waivers in cases where womens lives are jeopardized by the pregnancy. Then women would have gotten fair treatment. In instances where third parties are involved womens rights seem to be disregarded. The law also ignores arguments which claim that women are entitled to deciding what affects their bodies. On the other hand, supporters of sexual equality in respect to reproductive rights have used a laid back approach. By endorsing voluntary motherhood they distance themselves from supporting abortion (Siegel, 2007). However, this endorsement has solely given women in such countries the right to choose whether to reproduce or not.

In todays society sexual equality is said to be inhibited by the restrictive laws on abortion and the use of contraception use. These laws are seen as suspect because they tend to presume that womens necessity for birth control as a complex issue which warrants esteem in social justice.  For the realization of sexual equality these restrictive laws have to be eliminated. This must be done in consideration of all involved parties and without employing any double standards. Furthermore, this will be possible if laws acknowledge women as the focal element of these laws. This means that their rights and opinions must be considered prior to others.
In theory, laws are what guarantees equality rights. However, in most cases these legal principles are not reflective of the reality of discrimination experienced by women. With the direct utilization of such laws there may be a conception of equal rights but ones which have certain limitations. However, the direct application of such legal resources in defending womens rights creates bases where other women experiencing discrimination may draw interpretation from. The success of various legal claims involving elements of women inequality also leads to the reevaluation of legislation. Proponents of womens rights have often drawn from these cases to challenge other laws. These dynamics of equal rights are seen as reactionary. There must be an element of provocation which then leads to action. From this perspective it is clearly evident that formal equality may lose stability due to its rigidity. Instead, substantive equality can create a firm foundation for the advocacy of womens rights.

In general, equality is conceived by a democratic comprehension of social justice. The moral elements of equality are focused on the ability to ensure equal outcomes for all and especially for the disadvantaged. This approach does not necessarily allow for diversity. It is therefore crucial to have legal systems which cater for diverse groups of people. LEAF and other international organizations have worked towards such an outcome by offering legal representation to diverse groups of women.

Human rights are inclusive of all individuals regardless of gender. Perhaps womens equality can be achieved wholesomely through the application of a human rights perspective. This combined approach will be better at eliminating substantive disadvantages which women are exposed to. More so, applying the concepts of dignity may create a permanent solution to the legal defects inhibiting equality. The effectiveness of such a framework could be attributed to the fact that human rights legislations impose various responsibilities on all individuals. For one the laws have identified forms of discrimination. Furthermore they ensure the protection of individuals who seek to establish equality for the disadvantaged. Their ability to impose personal responsibilities on individuals makes the advocacy for women equality plausible.

Currently, women equality has been achieved to some extent. Legislation has been critically tailored to cater for the disadvantaged women. Employment and workplace laws ensure that womens rights are addressed and equal treatment applied to all employees regardless of their gender. The right to reproduction for women still draws much attention especially in workplaces. Legal measures can be taken if discrimination is detected in employment procedures. Furthermore women have become more vigilant in fighting for equal treatment and with the many existing legal firms women can manage to get the best representation. Future research and implementation of legal guidelines on women equity should be considered.

From the above discussion it is evident that equality is indeed a complex concept. The complexity arises when formal equality clashes with substantive equality. Every democracy aims at assuring the equality of its people but with this underlying factor cases of inequality have been inevitable. Section 15 of Canadian Charter of Rights and Freedoms does lay a firm foundation for equality but its characteristic reliance on formal equality may be precedent to creating inequality.

On one hand, formal equality which was used in the past to establish justice fails to recognize the presence of inequalities within the society. In doing so, these inequalities are bound to escalate if no measures are taken to prevent this. The debate on equality has mainly aimed at establishing whether the legal provisions on equality are meant to achieve either substantive or formal equality. However, current trends show a substantial separation from such theories. Substantive equality basically complements formal equality by eliminating those inequalities which are present in the society and are not directly provided for by the Charter.
It has been established that substantive equality has been possible through the use of organizations which are dedicated to fighting for womens rights. However, these organizations do not draw their arguments from foreign laws but from the same constitutional provisions. LEAF has been instrumental in promoting women rights and their focus on helping women of vast diversities have contributed to their popularity. It is important to reflect on the role LEAF has played in creating a balance between formal and substantive equality.

Most of the cases in which LEAF has managed to establish discrimination claims and achieved fairness have challenged the existing laws. This has made LEAF a crucial enabler of the dynamism of equality. Their tenacity in seeking to alter laws and legal concepts has in most instances led to the permanent change of these laws. As a result, this provides a permanent solution to all women who may be facing similar discriminations. Using the same arguments they can seek equality through the legal systems. The search for substantive equality can be very challenging and while some women may be courageous enough to venture into finding it others often shy away. It is for such women and especially those minority groups which have faced continuous discrimination that LEAF sets out to help. Indirectly LEAF has empowered women to challenge laws which are discriminatory.

The integration of formal and substantive equality in the legal system will indeed increase efficiency and promote overall equality for all. This paper call for law courts to stop over relying of formal equality as it creates a dysfunctional legal system. Instead, reality should be a core component of legal systems and this can be achieved by the use substantive equity. Not only does this ensure the dynamism of the law and women equality but it also consolidates the legal systems.

A holistic system which ensures the protection of the minority rights must be founded on various principles and mechanisms. In addition, they should be elements which enable an effective incorporation of all groups while at the same time allowing them to keep their individual characteristics. These principles include the forbidding of discrimination and the implementation of measures aimed at protecting and promoting the individuals identity. The rules which govern the prohibition of discrimination are meant to guarantee individuals of formal equality. Moreover, they should be conducive for the achievement of substantive equality. Thus, the rules become quite vital in the process of accomplishing the objective of separate identity realization for the minority. Basically this objective can only be facilitated by the acquisition of substantive equality and this creates a dependent relationship between these principles.

In order to achieve complete equality for women it becomes crucial to make substantive equality a basic constitutional principle.  Not only would this work in heightening womens rights but it would also create a harmonious coexistence between the charter and the general constitution. Institutional actors would be prompted to evaluate the impacts of differential treatment on both minority groups and the rest of the population. Substantive equality holds great significance as it encompasses considerations of any ensuing differences. More so, it recognizes that there may be a necessity for differential treatment in the search for equality.

In essence, the achievement of complete justice through equality will depend on the assurance of two entities. For one, the law must be prepared to ensure that all individuals belonging to different minority groups are regarded with the same respect for perfect equality as other citizens. On the other hand, the law should ensure that it has fundamental elements which protect minority groups and indeed preserve their separate identities. These characteristics are interlocked with each other in the fact that the realization of true equality would be dependent on accommodating views and arguments from both the minority and majority. Disadvantaged women in the society should not be mandated to renounce their differences in the name of complying with formal equality. Ultimately, the solution will emanate from a clear and wholesome approach which serves both formal and substantive equality.