Formal or Substantive Equality? - Gender Equality in European Community law

Abstract: Our conceptual understanding is a dual one, where opposing pairs define our world. This dualistic system is sexualised, hierarchical and normative when it comes to gender perceptions. In the liberal tradition of ideas, the meaning of Equality can be deduced from the concept developed by Aristotle: treat like cases as like, and treat different cases differently. During more than three decades, the European Community has been legislating against inequalities between men and women. In the late seventies, the first directive on Gender Equality in relation to access to employment, vocational training and promotion, and working conditions was adopted. Since then, the ECJ has had to interpret the directive in a number of cases and two new directives have amended and recast the original directive. Under Community law, the principle of Equal Treatment is the fundamental principle in relation to sex-inequalities and work and it springs from the liberal idea of Formal Equality. There are exemptions to this principle&semic a person's sex may be a determining factor in relation to the nature of the occupation, protective measures in relation to pregnancy or maternity and positive action-measures under the principle of Equal Opportunities. In the liberal tradition of ideas, positive action in some of its forms may be regarded as discrimination. However, under Cultural Feminism, positive action is a way of attaining Substantive Equality. It is apparent that focus in European Community law has shifted over the years, starting out by the development of the principle of Equal Treatment and continuing by the embracing of positive action-methods. Nevertheless, the congruence of the two concepts has been continuously questioned and there is an inherent conflict between the concepts that the legislators and the ECJ have been unwilling to focus on. Through European Community law, the principle of Equal Treatment is objectified and made the rule, whereas the concept of Equal Opportunities is subjectified and considered as an exception. There seems to be a jurisprudential confusion in respect of the central ''sameness-difference'' distinction. Gender Equality manifested through anti-discrimination laws including provisions on Equal Opportunities, as interpreted by the ECJ, cannot truly be of a substantive nature&semic where Formal Equality establishes male-norms, Substantive Equality risks having the effect of cementing stereotyped views on men and women. Greater demands on a more theoretic discussion on sex, gender and Equality must be made in relation to European Community law.