Economic inequality and gender

Where courts fear to tread

Resumen

This paper argues that the right to equality should not be confined to discrimination based on individual status (such as race, gender, age and disability) but should address distributive inequalities, particularly for gendered inequality. Policies which have an impact on inequality should be analysed under the lens of a four-dimensional right to substantive gender equality. This entails simultaneously (i) redressing redistributive disadvantage; (ii) addressing stigma, stereotyping and violence; (iii) facilitating voice and participation; and (iv) accommodating difference and furthering structural change. Although distributional decisions should remain the primary responsibility of policy-makers, courts adjudicating the right to equality should require policy-makers to demonstrate that their decisions further these four dimensions as far as possible. The paper examines taxation, a key redistributive mechanism which attracts unnecessarily high levels of judicial deference and considers some examples of how courts might apply the four-dimensional principle of substantive equality to require taxation to further the right to gender equality. The focus is on gender in an intersectional context. Further research is needed to demonstrate its application to race, disability and other status-based inequalities