Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-26T04:49:12.310Z Has data issue: false hasContentIssue false
  • English
  • Français

Towards a Concept of Equality of Well-Being: Overcoming the Social and Legal Construction of Inequality

Published online by Cambridge University Press:  09 June 2015

Marcia H. Rioux
Get access

Extract

The ways in which a society provides for people who, for one reason or another, are more socially and economically dependent throws into sharp focus the problems of equality as a political construct. The basic dilemma of social dependency is that of reconciling the responsibility of the state to ensure equality with the rights and needs of those who are dependent. The social, legal and economic policies in place at any given time in history reflect the ways that principles of justice have legitimated differential treatment. To study the case of intellectual disability, therefore, is to reflect upon the legal microcosm of the struggle for social justice and the parameters of political obligation to ameliorate inequality.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 7 , Issue 1 , January 1994 , pp. 127 - 147
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1994

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

I would like to thank Ernie Lightman, Michael Bach, Cameron Crawford, and Jerry Bickenbach for their helpful comments on this paper.

1. Intellectual disability is used throughout this text—it includes individuals who have been variously labelled as mentally retarded, mentally handicapped, mentally disabled, mentally impaired, intellectually impaired, developmentally disabled, and developmentally delayed and any other condition resulting in intellectual impairment.

2. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, ch. 11 [hereinafter Charter].

3. Sterba, J., Justice: Alternative Political Perspectives (Belmont, California: Wadsworth Publishing Company, 1980);Google Scholar Nozick, R., Anarchy, State and Utopia (New York: Basic Books Inc., 1974);Google Scholar Rees, J., Equality (London: Pall Mall Press, 1971).CrossRefGoogle Scholar

4. Rawls, J., A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971);Google Scholar Williams, B., “The Idea of Equality” in Laslett, P. & Runciman, W.G., eds, Philosophy, Politics and Society, 2nd series (Oxford: Basil Blackwell, 1962) 110;Google Scholar Williams, W., “The Equality Crisis: Some Reflections on Culture, Courts and Feminism” (1982)Google Scholar 7(3) Women’s Rights L. Reporter 175.

5. Veatch, R., The Foundations of Justice: Why the Retarded and the Rest of Us Have Claims to Equality (New York: Oxford University Press, 1986);Google Scholar Lukes, S., “Socialism and Equality” in Sterba, supra note 2, 211;Google Scholar Baker, C.E., “Outcome Equality or Equality of Respect: the Substantive Content of Equal Protection” (1983) 131(4) U. Penn. L. Rev. 933;Google Scholar Dworkin, R., Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977).Google ScholarPubMed

6. Under the Canadian Charter of Rights and Freedoms, people with intellectual disabilities (“mental disability”) are specifically listed as a class of persons entitled to equality; that is, they have a prima facie entitlement to equality. The Charter also specifically excludes programs established to redress discrimination from being classified as discriminatory. In other words, special measures are deemed to be consistent with equality.

7. As Hutchison and Potter put it, the oppression and inequality that “flow from the seemingly natural operation of the economy.” Hutchison, A.J. & Petter, A., “Paradise Postponed” (1990) [unpublished].Google Scholar

8. That is compassionate care, based on the notion that people with disabilities while pitiable are deserving of charity and benevolence. Within both the policy and legal framework, arguments are made that any different treatment of people with disabilities is justified because it is in the best interests of the individual according to some external set of standards. Differentiation has included the suspension of citizenship rights and the formalization of the dependent relationship of the individual to the state through legislation that provides unequal social and economic benefits.

9. Gould, S.J., The Mismeasure of Man (New York: Norton, 1981) at 24.Google Scholar

10. Evans, B. & Waites, B., I.Q. and Mental Testing: An Unnatural Science and Its Social History (London: Macmillan Press, 1981) at 188.CrossRefGoogle Scholar

11. Implications of hereditarian thinking are as devastating for those distinguished as less equal by virtue of their race as for those labelled intellectually disabled.

12. Hayman, R.L. Jr., “Presumptions of Justice: Law, Politics and the Mentally Retarded Parent” (1990) 103(6) Harv. L. Rev. 1201 at 1248.Google Scholar

13. Generally the criterion for being classified as intellectually disabled is that there is some significant intellectual impairment or developmental deficiency, the onset of which occurs in the early years of development (Batshaw, M.L. & Perret, Y.M., Children with Handicaps: A Medical Primer (Baltimore: Paul H. Brookes Publishing Co., 1981)).Google ScholarMore recently, difficulty adapting to environmental circumstances has been added to the definition as a further criterion (American Association for Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Support, 9th ed. (Washington, D.C.: A.A.M.R., 1992)). There are some specific objective conditions such as Down Syndrome that have always been classified and continue to be classified as mental retardation; other conditions, such as epilepsy, were at one time classified as mental retardation but are no longer. Finally, the term has not conventionally included such conditions as Alzheimer’s Disease or senile dementia, because their onset is later in life. However, if the basis of distinguishing difference is competency rather than condition, these conditions would be included.

14. Mercer, J.R., Labelling the Mentally Retarded: Clinical and Social System Perspectives on Mental Retardation (Berkeley: University of California Press, 1973).Google Scholar

15. The activities of medical and therapeutic professions reinforce this construction of disability and inequality. Theirs are not merely technical or commercial interactions but express the values of society generally. They operate as gatekeepers to the exercise and enjoyment of citizenship rights. The labelling of people as intellectually disabled is not therefore simply a technical medical “diagnosis”. It affects the economic, social, and legal interactions in which a person will participate and legitimizes political decisions concerning the relationship of that class of persons to society. The illusion that such decisions are “apolitical” has masked the practical political implications of the decisions and has enabled wide spread discrimination and inequality without a political debate on procedural or substantive justice.

16. The definition of intellectual disability can always be applied to a segment of the population. This is because the definition is based on a relative measure. There will inevitably be a class of persons who are intellectually significantly less able in comparison to others and who have comparative difficulty adapting to their environment.

17. Tarnopolsky, W.S., “The Equality Rights” in Tarnopolsky, W.S. & Beaudoin, G. eds, The Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982) at 399–401.Google ScholarFor other discussions of the rule of law see International Commission of Jurists, The Rule of Law and Human Rights: Principles and Definitions as Elaborated at the Congresses and Conferences Held Under the Auspices of the International Commission of Jurists (Geneva: I.C.J., 1966); Walker, G. DeQ., The Rule of Law: Foundations of Constitutional Democracy (Carleton, Vic: Melbourne University Press, 1988);Google Scholar Hutchison, A.C. & Monahan, P., eds, The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987);Google Scholar Neumann, F., The Rule of Law: Political Theory and the Legal System in Modern Society (Leamington, Eng.: Dover, N.H.: Berg Publishers, 1986).Google Scholar

18. In this paper, institution refers only to residential institutions for people with psychiatric or intellectual disabilities.

19. Feminist theorists have argued that the adherence to a formal view of equality, i.e., equality of treatment, perpetuates and legitimizes women’s substantive inequality, i.e., equality of condition. Brodsky, G. & Day, S., Canadian Charter Equality Rights for Women: One Step Fomard or Two Steps Back (Ottawa: The Canadian Advisory Council on the Status of Women, 1989);Google Scholar Scott, J.W., “Deconstructing Equality-Versus Difference: or, The Uses of Poststructural Theory for Feminism” (Spring, 1988) 14(1) Fern. Studies 33;Google Scholar Flax, J., “Postmodernism and Gender Relations in Feminist Theory” (1987) 12(4) Signs: J. of Women in Culture and Soc. 621.Google Scholar

20. Peter Westen argues that the notion of equality added nothing to the determinations of proper treatment. His critique of the formal principle of equality as an empty idea reinforces the argument that equality could be achieved under that limited principle without the achievement of any substantive rights. “The Empty Idea of Equality” (1982) 95(3) Harv. L. Rev. 537.

21. Petter, A., “Comment: Legitimizing Sexual Inequality: Three Early Charter Cases” (1989) 34 McGill L.J. 358 at 363.Google Scholar

22. The substantive inequality may even be legitimated by court decisions that find in favour of an equal treatment model of equality because it can lead to advantaged groups winning their claims to scarce resources that are designed to remedy the acknowledged disadvantage.

23. Brown v. Board of Education 349 U.S. 294 (1955).

24. G. Brodsky & S. Day, supra note 20; More, G.C., Competing Conceptions of Sexual Equality in the European Community and Canada: Formal and Substantive Models (Ottawa: National Library of Canada, 1991);Google Scholar Gibson, D., The Law of the Charter: Equality Rights (Toronto: Carswell, 1990);Google Scholar Swinton, K., Advanced Constitutional Law: Equality Rights, 1988–89 ed., (Toronto: Faculty of Law, University of Toronto,Google Scholar 1988–89); Bayefsky, A.F. & Eberts, M., eds, Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985);Google Scholar Lahey, K., “Equality and Women’s Specificity in Feminist Thought” (1983) [Unpublished] cited in Mossman, M. & Majury, D. eds, Readings for Law, Gender, Equality (Toronto: Osgoode Hall Law School, York University, 1989–90) at 338.Google Scholar

25. While there is no general agreement of the precise components of equality of opportunity, it generally presumes that people of equal need and ability, desirous of a scarce resource not available to everyone, should have an equal opportunity to obtain it. In other words, extraneous social categories, such as sex, race and disability are excluded from the consideration in determining who gets the scarce resource. See for example, R. Veatch, supra note 6, and B. Williams, “The Idea of Equality”, supra note 5.

26. Martha Minow refers to the following question as the dilemma of difference: “When does treating people differently emphasize their differences and stigmatize or hinder them on that basis? and when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that basis?” [emphasis in original] Minow, M., Making All the Difference (Ithaca: Cornell University Press, 1990) at 20.Google Scholar

27. Minow characterizes the traditional view that classifies people on the basis of mental incompetence, understood to be immutable and natural, as the “abnormal persons” approach. The assignment of difference is based on the person’s basic or immutable nature and, in the law, the facts concerning a person’s mental competence and capacity. Subtle differences are ignored: one is either normal or deviant. The mental capacity of those with a mental handicap is the determining factor in any case. Minow points out that this approach owes much to notions of fixed status relationships. Minow, M., “When Difference has its Home: Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference” (1987) 22(1) Harv. Civil Rights/Civil Lib. L.R. 111.Google Scholar

28. During the 1960s intellectual disability began to be reconceived as a developmental issue rather than a biological one or a matter of public threat. The concept of normalization (“utilization of means which are as culturally normative as possible, in order to establish and/or maintain personal behaviours which are as culturally normative as possible”: Wolfensberger, W., The Principle of Normalization in Human Services (Toronto: N.I.M.R., 1972) at 28),Google Scholardeveloped during the 1970s, rested on the premise that persons with intellectual disabilities are entitled to some self-determination and freedom of choice in a context of assimilation. The goal was to break down the philosophical and material barriers between “normal” and “deviant” or “abnormal.” Rights won in court and the concept of normalization had a powerful ideological and material impact in Canada, providing a crucial rationale for the efforts of those concerned with deinstitutionalization and development of community-based services. The limitation of normalization, however, was that it did not provide a theoretical basis that, in practice, gave much scope for pluralism.

29. In its first interpretation of the equality provisions of the Charter, the Supreme Court recognized that S. 15 protects against both impact as well as intent of disadvantage; that there must be an equality of both benefit and protection of the law; that difference in treatment will not necessarily result in inequality and that sameness in treatment may result in serious inequality. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1. In a 1988 opinion, Justice Bertha Wilson acknowledged the historical basis of women’s experience of inequality. R.v. Morgentaler, [1988] 1 S.C.R. 30.

30. The Federal Court of Canada declared S. 14(4)(0 of the Canada Elections Act unconstitutional in October 1988 on the basis that “the assumption that a person suffering from any mental disability is incapacitated for all purposes, including voting, is simply a false assumption”. Canadian Disability Rights Council v. Canada, [1988] 3 F.C. 622 at 625, per Madame Justice Reed.

31. Re Eve, [1986] 2 S.C.R. 388.

32. Brodsky and Day argue that Section 15 of the Cliarter should provide a basis for formal claims (process claims) as well as substantive claims to ensure that equality rights can be achieved. They point out that formal equality claims will in many cases compete with substantive equality claims particularly in cases of distributive justice. They propose that “section 15 [complaints] should be available for substantive equality claims by disadvantaged groups, and that members of advantaged groups who are disadvantaged only by virtue of their individual circumstances ought not to be able to bring substantive equality claims.... This would not mean that members of advantaged groups would be completely with out equality rights, however. The process rights component of section 15 should be recognized and available to all. But it should be developed in a limited way to protect rights traditionally associated with the rule of law, such as access to the courts.” Brodsky & Day, supra note 20 at 197.

33. See, for example, Block, W.A. & Walker, M.A., eds, Discrimination, Affirmative Action and Equal Opportunity: An Economic and Social Perspective (Vancouver: Fraser Institute, 1981).Google ScholarIn this conceptualization of equality goals, the liberal values of competition, freedom and radical individualism are relied on to argue that there is no need for government intervention. Competition in the marketplace is the equalizer in the sense that those who have been disadvantaged will cost less to employ and consequently the marketplace will regulate itself. Rights to autonomy and rights to freedom are conceptually linked to the fair play paradigm. See, for example, R. Nozick, supra note 4.

34. See, for example, MacKinnon, C.A., Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979);Google ScholarLivingston, infra, note 50; Thurlow, L.C., “A Theory of Groups and Economic Redistribution” (1979) 9(1) Phil. & Publ. Affairs 25;Google Scholar Goldman, A.H., “Reparations to Individuals or Groups?” in Gross, B. Reverse Discrimination (Buffalo: Prometheus Books, 1977);Google ScholarPubMedand Nagel, T., “Equal Treatment and Compensatory Discrimination” (1973) 2(4) Phil. & Publ. Affairs 348;Google Scholar Chapman, J.W. ed., Compensatory Justice (New York: New York University Press, 1991);Google Scholar Nagel, T., “Equal Treatment and Compensatory Justice” in Cohen, M., Nagel, T. & Scanlon, T., eds, Equality and Preferential Treatment (Princeton, N.J.: Princeton University Press, 1977) 3.Google Scholar

35. S. 15(2) of the Charter.

36. In ibid., s. 15(2), s.23, s.25, s.27. s.28, s.29.

37. Equality claims are framed by some as paramount to freedom claims. Macpherson claims that the premise on which equality of opportunity in liberal theory is based is “to provide the conditions for the free development of human capacities, and to do this equally for all members of society.” He places this within the framework of serving the needs both of freedom and of equality, that is, “freedom of each individual from subservience to the wills of others and equality in this freedom.” While acknowledging the ethical significance of equality, this does not address the issues of history and nature. Macpherson, C.B., The Real World of Democracy (Toronto: Canadian Broadcasting Corp., 1966) at 58,Google Scholar 59.

38. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1.

39. However, R.v. Morgentaler, [1988] 1 S.C.R. 30, was not decided on the equality issue.

40. In Re Eve, [1986] 2 S.C.R. 388 at 427–28, 434.

41. As Smith argues: “It is easy for most people to accept that the physical differences between the races do not matter and should be legally irrelevant. The equal opportunity model, in which justice is seen to be done when everyone is permitted to run the same race from the same starting line, fits relatively well when the contestants differ only in the colour of their skins. (The problem, of course, is how to achieve the same starting line in a meaningful way.) However, there are physical differences between the sexes in relation to child-bearing and breast-feeding which make identical treatment of the sexes unequal in some contexts. Running the race from the same starting line does not solve the problem of maternity along the way. Classifications based on sex may be legally relevant. Similarly there are differences between the able-bodied and the disabled and between young, middle-aged, and old people which can make identical treatment unequal. Simple equality of opportunity cannot conceivably produce equality of results in many of these situations. Such issues do not arise as squarely with respect to racial discrimination”. Smith, L., “A New Paradigm for Equality Rights” in Smith, Lynn et al., eds, Righting the Balance: Canada’s New Equality Rights (Saskatoon: Canadian Human Rights Reporter Inc., 1986) 353 at 365.Google Scholar

42. See Greenawalt, K., “How Empty is the Idea of Equality” (1983) 83(5) Col. L. Rev. 1167.Google Scholar

43. As the classification “mentally handicapped” includes an enormous range of intellectual capacities, it is difficult to generalize claims.

44. Freedman, A.E., “Sex Equality, Sex Difference, and the Supreme Court” (1983) 92(6) Yale L. J. 913;CrossRefGoogle Scholar Wildman, S.M., “The Legitimation of Sex Discrimination: A Critical Response to Supreme Court Jurisprudence” (1984) 63(2) Oregon L. Rev. 265;Google Scholar Scales, A.C., “Towards a Feminist Jurisprudence” (1980–81) 56(3) Indiana L. J. 375;Google Scholar Williams, W.W., “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism” (Spring 1982) 7(3) Women’s Rights L.Google Scholar Reporter 175.

45. Brodsky and Day argue that the formal equality model, directed as it is to like treatment and different treatment, assumes that equality is a matter of sameness and difference under the law rather than dominance and subordination of groups. Brodsky & Day, supra note 20 at 149.

46. Canada Commission on Equality in Employment, Report of the Commission on Equality in Employment (Ottawa: Supply and Services, 1984) (Commissioner: R.S. Abella). The concept was derived in large part from affirmative action in the United States, designed to deal primarily with racial inequality.

47. It also raises some similar problems for physical handicap.

48. W. Black identifies five specific problems with the statistical model of comparison in the case of disability. These include: (1) Statistical comparisons require the identification of who is in the groups being compared. With disability it is difficult to determine who falls within the category because of the wide variety and number of conditions, the impact of the conditions also may range from minor to very significant; (2) There is little data available about the participation rate in the general labour force of persons with disabilities; (3) Program targets established on the basis of current participation rates is a general problem with affirmative action because the rates set incorporate the effects of past discrimination; (4) The small numbers of persons with disabilities who have generally participated in the labour force mean that any statistical information is not reliable; (5) A statistical approach requires gathering of information about disabilities of employees, which raises problems of labelling or categorization which may be an infringement on the rights of those categorized and may reinforce stereo types. Black, W.W., “Discussion Paper Prepared for the Manitoba Human Rights Commission: Affirmative Action for Persons with Disabilities” (Ottawa, Human Rights Research and Education Centre, University of Ottawa, 1990).Google Scholar

49. Livingston, J.C., Fair Game? Inequality and Affirmative Action (San Francisco: W.H. Freeman, 1979).Google Scholar

50. In the sphere of education, learning may be thought of as a means to other ends such as social status, employment, income, ethical behaviour. However, learning could also be defined as arriving at new insight—an end in itself. Pedagogical practice can be structured for these ways of looking at learning. Typically, however, the arrival at new insight is considered a less desirable focus of educational practice than promoting access to those other goals.

51. W. Williams, supra note 5 at 180 n.35 (emphasis in original).

52. Variations of this model have been called “equality-of-outcome” or “equality-of-resources”. Dworkin, R., Law’s Empire (Cambridge: Harvard University Press, 1986) 297–301;Google Scholar Neilson, K., Equality and Liberty : A Defense of Radical Egalitarianism (Totowa, N.J.: Rowman and Allanheld, 1985) 46–60;Google Scholar Dworkin, R., “What is Equality”“Part 1, Equality of Welfare” (Summer 1981) 10(3) Phil. & Publ. Affairs 185;Google Scholar“Part 2, Equality of Resources” (Fall 1981) 10(4) Phil. & Publ. Affairs 283; “Part 3: The Place of Liberty” (Oct 1987) 73(1) Iowa L. Rev. 1 ; “Part 4: Political Equality” (Fall 1987) 22(1) U. of San Fran. L. Rev. 1; Westen, P., Speaking of Equality: An Analysis of the Rhetorical Force of Equality in Moral and Legal Discourse (Princeton, N.J.: Princeton University Press, 1990);CrossRefGoogle ScholarLaw Reform Commission of Canada, Report on Aboriginal Peoples and Criminal Justice: Equality, Respect and the Search for Justice, No. 34 (Ottawa: L.R.C.C., 1991) 9–12.

53. Equal treatment and equal opportunity in most of their formulations treat equality as a means to ensure fairness in achieving some other ends. Thus in the latter case, people of equal need and ability should have equal opportunity to obtain desired scarce resources not available to them.

54. Lukes, supra note 6 at 218.

55. Young proposes this as a characteristic of an equality of outcome and argues that it allows affirmative action to be seen not as an exception to the principle of nondiscrimination but a policy instrumental in undermining oppression. Young, I.M., Justice and the Politics of Difference (Princeton, N.J.: Princeton University Press, 1990) at 195.Google Scholar

56. For example, as found in the Canadian adaptation of the English Poor Laws and in subsequent law and policy based on a status of civil disability, law and policy based on charity and paternalism, and law and policy based on equality of opportunity.

57. Resource redistribution necessary to ensure equal well-being would require both the redistribution necessary to enable equal opportunity as well as the redistribution necessary to take into account unequal needs because of physical and mental differences. The equal treatment principle of equality, by contrast, supports deinstitutionalization and integration in the community—but not the provision of services to make this possible for those people with intellectual disabilities who might have trouble in a complex environment. The “special treatment” model which is a form of equality of opportunity, alternately, supports the development of specially tailored assistance programs, but might also support institutional treatment.

58. See T.B. Dawson, “Equality Strategies—Legal Options and Approaches” delivered at the Human Rights Summer School, University of Ottawa, August 7, 1990; MacKinnon, C., “Feminism, Marxism, Method, and the State: An Agenda for Theory” (1982) 7(3) Signs: J. of Women in Culture and Soc. 515;Google Scholar MacKinnon, C., “Difference and Dominance: On Sex Discrimination” in Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987) 32;Google Scholar Clark, L.M.G., “Politics and Law: The Theory and Practice of the Ideology of Male Supremacy; or It Wasn’t God Who Made Honkey Tonk Angels” in Weisstub, D., ed., Law and Policy (Toronto: Osgoode Hall Law School, York University, 1976) at 35–73.Google Scholar

59. Fox and Willis suggest the significant difference between policy in the area of disability and other policy. “No other area of policy is precisely analogous to disability. An inexact analogy might be the mobilization of a country for modern warfare. Only in wartime have the people who make policy explicitly negotiated about who will be expected to work or to fight and then organized health and social services on the basis of negotiations.” Fox, D.M. & Willis, D.P., “Introduction: Disability Policy: Restoring Socioeconomic Independence” (1989) 67(Supp. 2)(1) Milbank Quart. 1 Google Scholar at 2.

60. Young, I.M. “Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory” (1986) 5 Praxis International 382;Google Scholar Minow, M., Making All the Difference (Ithaca: Cornell University Press, 1990);Google Scholar Young, I.M., Justice and the Politics of Difference (Princeton, N.J.: Princeton University Press, 1990).Google Scholar

61. Herma Hill Kay concludes that it is necessary to preserve the comparative element of the anti-discrimination principle as the normal standard of measurement and make an exception only in those cases where legal problems are raised about reproductive sex differences. Wildman, supra note 45, has proposed that the comparative standard between men and women be discarded as a basis for the anti-discrimination principle. She argues that women have been the victims of sex discrimination not men, just as blacks are the victims of discrimination not whites. She argues for full societal participation to eliminate sexual discrimination against women. She does not accept the view of writers like Kay, who posit that discrimination is practised against both men and women and that must instruct the legal model adopted. Law, S.A., “Rethinking Sex and the Constitution” (1984) 132 U. Penn. L. Rev. 955 CrossRefGoogle Scholaroffers a position that adopts both models. She would have laws regulating reproductive biology brought within the Fourteenth Amendment’s guarantee of equal protection but not subjected to the anti-discrimination principle, while laws that made explicit sex classification would remain subject to the anti-discrimination principle. Kay, H.H., “Models of Equality,” 1985(1) U. 111. L. Rev. 39.Google Scholar

62. Scott and Minow argue that the framing of equality and difference as mutually exclusive terms misrepresents their relationship. Placing equality and difference in an antithetical relationship denies the way in which difference has figured in political notions of equality; it also suggests that sameness is the only ground on which equality can be claimed. Equality, as developed in the political theory of rights, is understood to mean the elimination of a particular set of differences at a particular time. Therefore its starting point is the acknowledgement of a group of people as different. “The political notion of equality thus includes, indeed depends on, an acknowledgment of the existence of difference” (Scott, at 44). If individuals were “the same” there would be no need to ask for equality. Equality could be defined not as the elimination of difference but as indifference to difference. The political issue is therefore to find a notion of equality predicated not on sameness but on difference. Scott, Joan, “Deconstructing Equality versus Difference: or the Uses of Poststructuralist Theory for Feminism” (1988) 14(1) Fern. Studies 33;Google Scholar Minow, M., “When Difference Has Its Home: Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference” (1987) 22(1) Harv. Civil Rights/Civil Lib. L. Rev. 111;Google Scholar Minow, M., “Learning to Live with the Dilemma of Difference: Bilingual and Special Education” (1985) 48 L. and Contemp. Prob. 157;CrossRefGoogle Scholar Flax, J., “Postmodernism and Gender Relations in Feminist Theory” (1987) 12(4) Signs: J. of Women in Culture and Soc. 621.Google Scholar

63. They have also been disadvantaged by being subsumed within these categories.

64. Some special benefits have been provided by government such as the augmented welfare provisions and Vocational Rehabilitation for Disabled Persons program and special services. Others have been made available through charitable organizations.

65. Rioux, M.H., “Exchanging Charity for Rights: A Challenge for the 1990’s” (1991) 6(2)Google Scholar entourage 3.

66. There have not been any legal challenges of this nature in Canada, although arguments were made in the Robichaud and Rowett education integration cases (unreported) about the benefits received by the students (who had an intellectual disability) in special schools. There were also arguments about the effect of a student with an intellectual disability on the achievement of other students.