Posted by ccld201
25 June 2026The challenges in determining what constitutes an inequality have led some courts to both implicitly and explicitly look to the justification-stage when assessing whether there has been a breach of women’s equality rights. Courts around the world, including in South Africa, India, the UK, the US and Canada, will analyse, for example, whether the law has a proper purpose to explicate the scope and breadth of women’s legal right to equality. And this has severe negative implications for identifying breaches of women’s equality. I explore these arguments in my book Hanging in the Balance: The Function of Justification in Achieving Women’s Equality. In this post, I focus on how this seeping of justification into the equality analysis makes it impossible to identify gendered dignity harms (understood as stigma, prejudice, stereotypes and negative cultural attitudes).
Is a Good Law an Equal Law?
Some examples from the jurisprudence help illustrate the dangers of conceptually entwining of equality and justification when assessing whether there has been a breach of women’s equality rights. Typically, the exclusion of certain types of intimate partner unions from marital property law has been held not to be a breach of women’s rights on the basis of justification-like reasoning. In these cases, the courts examine the purpose of marital property laws concluding that the core objective was to protect the choices of individuals.[1] Spouses, by choosing to get married, were presumed to consent to an equal economic partnership and were correspondingly entitled to the legal presumption of equal division of property upon the relationship breakdown. By contrast, individuals in intimate partner unions who had not performed any legal ceremony could not be presumed to have chosen an equal property arrangement. The differential treatment between marriage and intimate partner unions signalled respect for the autonomous decision not to marry. Thus, the purpose of the law was to protect the dignity of individual choice and as such there could be no breach of equality rights. The objectives of the law were worthy and laudable, and this praiseworthiness was sufficient in resolving women’s claims for equality. The purpose of the law is the cornerstone of most justification assessments, yet it is being used to evaluate whether the law violates women’s right to equality.
This justification-like reasoning operates to hide the gendered dignity harms in marriage. First, like in marriage, women in intimate partner unions perform the majority of unpaid care work.[2] The legal exclusion of intimate partner unions from the law, which aimed to account for the value of this work, has continued to ignore and devalue this work simply because it was performed by women who were not married. Second, the court’s reasoning rested upon an untenable presumption that the aim of the law, respecting choices, accurately reflected reality. Feminists have long argued that the decisions on marriage are not individualised but are made by synergy between the people in the relationship.[3] Gender power hierarchies can heavily influence the choice to marry or not to marry. While the purpose of the law may have been to protect autonomy, in reality it worked to protect men’s choices. This because the aims of the law failed to account for women’s lack of power within intimate partner relations and the constraints on their choices. By applauding the objective, protecting choice, the equality-stage was directed away from the gendered impacts of the law.
It is not only in relation to marital property rights that justification reasoning creeps in and distorts the legal analysis of whether equality rights have been breached. In the context of work, while the employer might have a policy aimed at banning sex discrimination at work, this does not preclude front line managers from using their discretion in pay and promotion in a prejudicial and stereotypical manner that consistently undervalues women’s skills, competency, commitment and leadership.[4] Similarly, the rationality of protecting women by prohibiting them from working at night may camouflage essentialist stereotypes on women as mothers and operate to exclude them from economic opportunities and public life.[5]
Protecting Equality from Justification: Substantive Equality
When courts draw on justification to evaluate whether the law is in breach of the constitutional guarantee of equality the analysis becomes a defence of the law or policy. Justification reasoning is simply unable to unearth and understand why a law breaches equality rights. This is because it cannot evaluate whether the law demeans, stigmatises, marginalises, oppresses or disadvantages women. The seeping of justification into the equality-stage of judicial reasoning permits judges to ignore the hardships and suffering the law imposes on women. Substantive equality protects the equality-stage from the hazards of justification. While this is a contested concept with different proposed meanings, at its core, substantive equality analyses the impacts of the law on women’s living, including its impact on women’s dignity.[6] It forces courts to ask whether the law, policy or programme contributes to women’s retrenches stigma, stereotypes or negative cultural attitudes. Importantly too, it directs the analysis away from the reasons why the state wants to pursue this law as this is analytically irrelevant for determining whether a law breaches equality rights. By drawing on a substantive equality model of equality that assesses the dignity impacts of the law, courts will not dilute women’s equality with justification.
Meghan Campbell is a Reader in International Human Rights Law at Birmingham Law School. She is the author of Hanging in the Balance: The Function of Justification in Achieving Women’s Equality (Bloomsbury, 2025)
[1] Nova Scotia (Attorney General) v Walsh [2002] 4 SCR 325; Quebec v A [2013] 1 SCR 61; Volks v Robinson [2005] ZACC.
[2] The CEDAW Committee, ‘General Recommendation No 29 on the economic consequences of marriage, family relations and their dissolution’ (2013) CEDAW/C/GC/29.
[3] Natasha Mukhtar, ‘A Feminist Critique of Quebec v A: Evaluating the Supreme Court’s Divided Opinion of Section 15 and Common Law Support Obligations’ (2017) 30(1) Canadian Journal of Family Law 129.
[4] Wal-Mart v Dukes 564 US 338 (2011).
[5] Leela v State of Kerala (2003) 6 SCC 611
[6] See for example, Colleen Sheppard, Inclusive Equality (McGill-Queen’s University Press, 2010).