Comparing Theories of Sex Discrimination: The Role of Comparison

Abstract

This article reviews Timothy Macklem's Beyond Comparison: Sex and Discrimination. The book's central argument is that sex discrimination is not essentially a matter of comparison between men and women to see if women are getting as much of some benefit as men. Along the way, Macklem criticizes feminist accounts of discrimination that identify it either with inequality or failure to respect difference, taking Catharine MacKinnon and Druscilla Cornell as his main targets. His account joins with the school of thought that denies that equality is an independent value in determinations of how goods and benefits are to be distributed, at least most of the time. Macklem argues that in order to know whether any given distribution of some benefit is discriminatory, we need to know whether it can be valuable for the possible recipients, given their needs, interests, and capacities. This exercise does not involve comparing one would-be recipient to another, whether to make sure either that both get an equal share or that differences are respected. Sex discrimination is a matter of failing to give members of a particular sex enough of what they need to lead successful lives because of a misconception about what kind of people they are.

This non-comparative approach to discrimination is combined with a pluralistic account of value to argue that to the extent that men and women have different but incommensurable qualities put to use to lead differently valuable but also incommensurable lives, a search for equality between the sexes is literally incomprehensible.

This review argues that Macklem is right that sex equality or sex discrimination claims are, properly understood, not essentially comparative in nature, not strictly egalitarian but rather only rhetorically egalitarian, to use Raz' terminology. Such claims can be rephrased in terms of some underlying entitlement or basis for distribution which women satisfy and by virtue of which they claim their fair share. But Macklem is wrong to attribute an essentially comparative account to the feminist accounts he canvasses. His misreading of feminist equality theories is due to a failure to grapple with the concrete legal and political struggles which have motivated and shaped feminist theorizing. As a result, Macklem's criticism of much feminist scholarship is not altogether fair, and his own theory is too disengaged.

Keywords: Sex discrimination, equality theory

JEL Classification: J7, K1