The right to equality has traditionally been understood as “formal” equality - demanding that likes should be treated alike. A new framework for measuring “substantive” equality, developed by Professor Sandra Fredman (Faculty of Law) takes into account a much broader range of influencing factors, and is growing in international influence.
As a method of assessing the right to equality in law and policy-making, formal equality has many limitations. It does not take into account circumstances perpetuating or redressing disadvantage, it focuses on individuals rather than structural inequalities, and it can be satisfied by everyone being treated equally badly. The need for a more nuanced method of assessment has long been acknowledged by courts and international bodies.
Substantive equality provides a much broader definition, looking beyond the basics to recognise differences between groups of people. However, until relatively recently, there was no method of assessing this more complex definition.
Fredman, a Professor of the Laws of the British Commonwealth and the United States, a practising barrister and leader of the Oxford Human Rights Hub, first outlined a useable framework to measure substantive equality in her 2002 paper ‘The Future of Equality in Britain’, commissioned by the Equal Opportunities Commission.
Looking at equality through a multi-dimensional lens
Professor Fredman’s new approach was informed by extensive interviews with policy-makers as well as rigorous examination of the law and history of several comparable jurisdictions. The resulting framework for assessing substantive equality is based on four dimensions: redistribution, recognition, participation and transformation.
“Redistribution” aims to redress disadvantage, “recognition” addresses stereotyping, stigma and violence, “participation” ensures underrepresented voices are heard, and “transformation” accommodates difference and aims to achieve structural change.
These four dimensions were designed around the principle that the right to equality should be responsive to those who are disadvantaged, demeaned, excluded or ignored.
In practice, Fredman explains, each of the four dimensions should be considered simultaneously to make a fair judgement. “The approach is deliberately framed in terms of dimensions because it allows us to focus on the interaction and synergies of each, with the aim of optimizing all of them simultaneously, rather than asserting a pre-established order of priority.”
Initial impact and ongoing influence
Fredman’s four-dimensional framework is able to balance differences of opinion and experience and provide a pathway to action. Consequently, it has gone on to prove highly influential for consistency of governmental approach in law and policy, for monitoring bodies in evaluating compliance with laws and policy, and for courts when interpreting the right to equality.
Fredman’s framework met with approval from the EOC and went on to underpin the general duties of the Equality and Human Right’s Commission following the 2006 Equality Act. It was also included in Section 149(3) Equality Act 2010, cited in several UK court decisions. Most recently, it was used by the Supreme Court of India to guide decisions on gender equality under the Indian Constitution. As a result, women in the Indian Army could achieve genuine equality in accessing permanent commissions by demonstrating that apparently neutral criteria, based on male career profiles, in practice disadvantaged them because of previous endemic discrimination against women in the army
The framework has also gone on to inform and influence at an international level via its incorporation into a General Comment on the United Nations Committee on the Rights of Persons with Disabilities (UNCCRPD). The chairperson of UNCCRPD , who was responsible for drafting the comment, stated that: ‘These four dimensions are almost identical with the components of the transformative model of equality developed by Sandra Fredman.’ The Committee regularly refers to the General Comment in its recommendations to States and its opinions on complaints brought by individuals. For example, the Committee referred to this Comment to decide that Australia should provide sign language alternatives to enable persons with hearing impediments to perform jury service on an equal basis with others.
It has also been incorporated into the Abidjan Principles on the Human Rights Obligations of States to Provide Public Education and to Regulate Private Involvement in Education. In February 2019, these Principles were adopted by 56 international signatories and have been endorsed by the African Commission on Human Rights, the UN Special Rapporteur on the Right to Education, and the European Committee of Social Rights.
The UN has subsequently adopted two resolutions recognising the Abidjan Principles. India’s representative on the drafting committee commented that this recognition from the UN will: “provide guidance to State authorities, institutions and courts in protecting and implementing the right to education” for countless children worldwide.”