Formal and substantive equality

The right to equality is a fundamental human right belonging to all human beings.

As we learned in my previous article, article 1 of the Declaration of Principles on Equality states that: “The right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law”.

Moreover, it was also highlighted that treating others equally does not necessarily mean that you should treat them identically.

According to Article 2 of the Declaration of Principles on Equality: “Equal treatment, as an aspect of equality, is not equivalent to identical treatment. To realise full and effective equality it is necessary to treat people differently according to their different circumstances, to assert their equal worth and to enhance their capabilities to participate in society as equals”.

Different understandings about the right to equality lead to the development of the concepts of formal equality and substantive equality.

Formal equality is based on an understanding of equality as identical or same treatment. By treating others who are alike identically or the same, they will be subject to the same rules or standards. For example, if we are looking at the ground of sex, men and women should be treated identically in all spheres of life. This some people believe results in fair treatment because you treat everyone exactly the same.

However, substantive equality does not mean treating everyone identically or the same. It means treating persons differently so as to achieve equal results. As human beings have differences and are multifaceted beings, it is important to take into account different factors such as their race, age, sex, etc., that may make their situation sufficiently different so as to require different treatment in order for them to be treated fairly and with equal respect. Sometimes treating everyone exactly the same results in injustice.

For example, even though we believe that males and females should be treated equally, we cannot ignore the fact that they have biological differences.

Moreover, they may also have different races, religions, ages, sexual orientations, nationalities, etc. Some of these factors may create certain privileges and/or disadvantages. When making rules, policies, laws, etc. it may therefore be important and even required for one to take these different factors into account when deciding how to fairly treat male and female persons.

An understanding of equality from the perspective of substantive equality is the approach adopted in the Declaration of Principles on Equality, which is a document that outlines many principles in relation to the right to equality and the right to non-discrimination based on concepts and jurisprudence developed in international, regional, and national legal contexts.

In my opinion, an understanding of equality as only formal equality is not the best approach to adopt when dealing with equality issues. This approach is very flawed and can result in great injustice. An understanding of equality from the perspective of substantive equality is a fairer approach because it looks at an individual, group, or society holistically and considers a multiplicity of factors when deciding how to treat others fairly and with equal respect.

Today, I encourage us to continue to educate ourselves on the right to equality. Let us continue to learn more about formal and substantive equality.

Author: Jeshua Bardoo is a Vincentian Barrister- at-law and Solicitor. He is also the President of Equal Rights,Access and Opportunities SVG Inc. He can be contacted via email at jeshuabardoo