The Sameness-Difference Debate: The Treatment of Mothers and Fathers by the Law
Sex discrimination law views equality and gender as issues of sameness and difference. Thus, the sameness-difference debate pertains to the meaning which we bestow upon equality. One version of equality, formal equality, involves treating similarly situated people alike. This model of equality aligns itself with the sameness approach - mothers and fathers should be treated the same by the law. An alternative model of equality, substantive equality, takes account of social and economic realities. According to this approach, gender equality calls for special treatment to be afforded to mothers. In relation to mothers and fathers, this essay shall discuss which of these categories the law should subsume in order to facilitate the attaining of gender equality. Further, the extent to which this debate offers a satisfactory basis for approaching gender equality law will be examined.
Deconstructing the sameness-difference debate
The question as to how the law should treat mothers and fathers is fundamental, in that it is directly correlative with the opportunities afforded to women. At present, as stated by Justice Goldstone in Hugo, there is no denying that mothers bear greater responsibility for child-rearing than fathers. As identified by Munro, women’s mothering is central to the sexual division of labour, this having profound effect on their lives. This perspective is supported by the Women and Equalities Committee of the House of Commons in its enquiry into the gender pay gap in 2016, in which it concluded that the disproportionate responsibility for childcare taken by women ensures that the gender pay gap persists.
As stated above, the sameness-difference debate is one way of approaching sex equality law. The sameness approach advocates for the law to treat mothers and fathers the same. The difference approach suggests that mothers and fathers should receive disparate legal treatment. Sameness would be adhering to a “sex-blind understanding of sexual equality.’ This ‘sex-blind’ approach to the treatment of mothers and fathers, could result in proportionate access to childcare. In the alternative, ‘sex-responsive interpretations of equality’ would afford special treatment to mothers. For instance, instead of equal access to childcare, access to a subsidised nursery scheme may be reserved only for mothers. These schemes are called ‘positive action programs.’ They are discriminatory but are permitted by the law when necessary to provide for equal opportunity in those situations in which women have been historically disadvantaged.
Does biological difference call for different treatment by the law?
Adherence to the difference approach, or the structuring of statutory rights as gender-specific, would work contrary to the formal definition of sex equality. Thus, the guiding principle for the sameness argument is that women are the same as men and should be treated as such. The structuring of rights as gender-specific could be deemed discriminatory practice. As evidenced in Lommers, one way in which the courts can overlook these discriminatory measures is by perceiving their operation as intended to eliminate or reduce inequality. In Lommers, the Ministry of Agriculture refused to give their employee access to the subsidised nursery scheme for his unborn child on the basis that access was in principle reserved only for female officials at the Ministry. Given the underrepresentation of women working at the Ministry, and that ‘a proven insufficiency of suitable and affordable nursery facilities [was] likely to induce particularly more female employees to give up their jobs,’ it was held that the nursery scheme was consistent with Article 2(4) of the Directive.  The discriminatory scheme was intended to eliminate or reduce pre-existing workplace inequalities faced by mothers and was therefore permitted.
The court in Hugo held that the granting of special remission to mothers in prison with children under twelve for the remainder of their sentences did not impair fathers’ ‘rights of dignity or sense of equal worth.’ In both Lommersand Hugo the court permits gender discrimination, the reasoning being that the discrimination is justified if its intention is to remove deep-seated, pre-existing inequalities. As stated by Justice Goldstone, that whilst the constitutional goal was to create a society that afforded each human equal treatment based on equal worth and freedom, that goal could not be achieved by insisting on equal treatment in all circumstances. Hence, within both Lommers and Hugo,the courts more readily align themselves with the difference approach.
The drawbacks of the difference approach
Is the difference approach preferable to one in which or mothers and fathers are treated the same by the law? The strongest doctrinal expression of sameness would prohibit taking gender into account in any way - the leading rule being that the words ‘equal to’ are equivalent to the words, ‘the same as.’ 
A concern surrounding the difference approach is that fathers acting as the primary caregivers to their children continue to be the exception. As stated above, fathers would only be covered in those cases such as when they are bringing up children alone. Therefore, Lommers, which upheld a positive action programme, seems to preserve the notion of women as society’s primary caregivers. If we are to view and treat male primary caregivers as the exception, a deviation from the norm, it is arguable that the concern raised by the CJEU in Lommers, that the measure may help to maintain the traditional division of roles between genders, is significant.
Ergo, underlying this differential treatment is the perpetuation of gender stereotypes, in that women are the primary caregivers, to which male primary caregivers are the exception. Further, positive action programs have failed to provide a significant boost to women despite their purported benefits. For instance, after positive action programs had been in place in some German states for a decade, the proportion of positions occupied by women increased by less than 1 percent.In summary, the ECJ’s decision will maintain the standpoint that childcare is a woman’s responsibility which will only work to reduce women’s opportunities in the workplace.
Thus, the societal situation at present is that mothers take on the primary role of caring for their children. If we were to afford mothers special treatment by the law, this increases the possibility of reinforcing of sexual stereotypes. It also poses the risk of generating resentment where the positive action implemented is not sufficiently understood. Fundamentally, structuring rights to afford mothers special privilege may result in employers being tempted to avoid employing women who are of childbearing age.
Should the law commit to the sameness approach?
As evidenced, the provision of different rights for each parent poses a risk of perpetuating gender roles. As noted by Chan, linking difference-based employment legislation to maternity and childcare ultimately risks making things worse. However, the sameness, or gender neutrality approach prohibits the law from considering gender differences and risks ignoring the reality of women’s needs. Evidently, viewing sameness as the core of equality poses the risk of obscuring human difference, such as a woman’s innate ability to give birth. Also, application of the sameness approach in this manner is indicative of mothers having to adopt the stereotypical characteristics of fathers. This is merely a call for mothers to abandon what it means to be a ‘mother’ in the hopes of arriving at gender equality.
Further, MacKinnon also draws attention to the fact that under gender neutrality, men are treated preferentially as parents because society advantages them before they get to court. Gender-neutral rules often facilitate the portrayal of men as better fathers, given that they often make more money, alongside their having greater credibility and authority in court.
On the one hand, sex-responsive laws reinforce pre-existing gender stereotypes, but provide short-term, realistic solutions to workplace inequalities experienced by women. In the alternative, sex-blind laws can fail to take account of the needs of women, these needs stemming from inherent biological differences.
The fundamental flaw in the sameness-difference debate
The significant drawbacks of each approach are indicative of a fundamental flaw within the sameness-difference debate. The debate presupposes maleness as the standard. As put forward by MacKinnon, concealed beneath this sameness-difference discourse is the way in which man has become the measure of all things. Approaching sex discrimination as if sex questions were difference questions and equality questions were sameness questions merely permits the law to hold women to a male standard in two ways and call that equality.
Disproving the original statement, that mothers and fathers should be treated the same by the law, does not lead to the conclusion that mothers and fathers should be treated differently by the law. This is because it assumes that we look at the debate as if standing at a fork in the road, in that if we are not to treat mothers and fathers the same, therefore we must treat them differently. But, conformity with the experiences of only half of the species cannot accurately reflect the meaning of equality. Women’s equality should not, and cannot, be measured against their proximity to men.
A more advantageous interpretation of gender equality
If the sameness-difference debate cannot provide an adequate solution for tackling gender inequality, then how should the law treat mothers and fathers? Arguably, there is in fact no single theory of equality that will succeed in benefiting all women. A single theory of equality risks ignoring the individual situations of women. It would fail to consider factors such as culture, race and ethnicity, each of these demanding the law to alter its approach.
However, the rhetoric of equality is unifying for women and should not be abandoned. As argued by Jaggar, equality still ‘provides a rallying cry to abolish privilege, to end oppression, to unite people against injustice and domination’.Even so, what is necessary is evaluation on a case-by-case basis. Closer attention must be paid to the context of the lives of individual women. Minow draws attention to the fact that the sameness-difference framework calls for simple yes or no answers that require suppressing counterexamples. A contextual approach avoids overly restricting the courts. It allows them to consider individual circumstances and reach a conclusion upon what justice requires in an individual case, independent of any rigid, overarching principle of sameness or difference.
Further, attitudes towards care work, in particular viewing paid work as the only valuable work, must be altered. It is possible for the law to aid the changing of attitudes through implementing legal frameworks. Regardless of the limited ability of law to effect transformation in this area, it still has the capacity to design those legal rights which will often be a key factor in the decisions of families as to how best to manage work and care. We should not underestimate the importance of father-friendly legislation. Endorsing a father’s role as a parent enables the legislation to challenge any views that parenting is an instinctively and naturally ‘female’ task. Comparative research from a range of jurisdictions has suggested that fathers are more likely to take leave when it is offered on a non-transferable ‘use it or lose it’ basis.Ultimately, we must refrain from the bifurcation of parenting into two distinct roles.
Bringing fathers to the forefront
It is interesting to consider the syntactical arrangement of the phrases, ‘men and women’ and ‘mother and father.’ Why is the syntax different in the latter phrase? ‘[M]other’ is placed at the forefront, and yet again, the ‘father’ seems to have been side-lined - the exception. The mother’s role as the primary caregiver is entrenched and central to the notion of parenthood. Ultimately, mothers and fathers should not always be treated the same by the law, but neither should they always be treated differently. As argued by Jaggar, adherence to the sameness approach poses the risk of ignoring the extent to which sex and gender affect every aspect of people’s lives. Alternatively, the difference argument may in fact reinforce sexual stereotypes. This is because the law, structurally, ‘adopts the male point of view.’Accordingly, the law must pursue multiple strategies – sometimes applying the sameness argument, and sometimes adhering to the difference approach. This must be underlined by contextualisation. Further, the courts have an important role to play in shifting attitudes towards care and must implement strategies that entrench the notion of caregiving as valuable work. To summarise, the path to gender equality should not be perceived as monolithic.
 Catherine A. MacKinnon, ‘Sex Equality: On Difference and Dominance” in Towards a Feminist Theory of State (Cambridge: Harvard University Press, 1989), 216.  Nancy Levit and Robert R.M. Verchick, Feminist Legal Theory (NYU Press 2006), 31.  Judgement of the Constitutional Court of South Africa, President of the Republic of South Africa v Hugo  ZACC 4; 1997 (6) BCLR 708, .  Vanessa E. Munro, Law and Politics at the Perimeter, Re-Evaluating Key Debates in Feminist Theory (Hart 2007), 24.  Women and Equalities Committee, Gender Pay Gap (8 March 2016) HC 584, 185.  Alison M. Jaggar, “Sexual Difference and Sexual Equality” in Deborah L. Rhode, ed., Theoretical Perspectives on Sexual Difference (New Haven: Yale University Press, 1990), 243.  Ibid.  Ibid 245.  Brady Mitchell, “Unfair Discrimination of Necessary for Equal Opportunity? The ECJ Upholds Positive Action in Lommers v Minister Van Landbouw” Loyola of Los Angeles International and Comparative Law Review, Volume 26, Article 6 (2004), 476.  Case C-476/99 Lommers  ECR I-2891, .  Ibid.  Lommers (n.10) .  President of the Republic of South Africa v Hugo  ZACC 4; 1997 (6) BCLR 708.  Hugo (n.13) .  Lommers (n.10).  Hugo (n.13).  Hugo (n.13)  (Justice Goldstone).  Lommers (n.10).  Hugo (n.13).  MacKinnon (n.1) 219.  Lommers (n.10)  – .  Lommers (n.10).  Lommers (n.10) .  Steve Mazurana et al, Badeck, and Abrahamsson v. Fogelqvist, and Schnorbus v. Land Hessen, European Court of Justice Decisions on Positive Actions to Promote Employment of Women, 96 AM J. INT’L L. 453, 460 (2002), 477.  Mitchell (n.9) 470.  Gavin Ellison, Andy Barker and Tia Kulasuriya, Work and Care: A Study of Modern Parents (EHRC, 2009) p.11; Jane Lewis and Elaine Welsh, ‘Fathering practices in twenty-six intact families and the implications for child contact’ (2005) 1 International Journal of Law in Context 81, 94-95.  Jaggar (n.6) 244.  Levit (n.2) 34.  Jane Lewis, Should We Worry about Family Change? (Toronto University Press, 2003), 90.  Winnie Chan, Mothers, equality and labour market opportunities (2013) 42 Industrial Law Journal 224, 230.  Lewis (n.29) 90.  Jaggar (n.6) 248, 251.  MacKinnon (n.1) 222.  MacKinnon (n.1) 221.  MacKinnon (n.1) 220.  MacKinnon (n.1) 221.  Ibid.  Munro (n.4) 34.  Jaggar (n.6) 251.  Munro (n.4) 34.  Minow (n.3) 153.  Grace James, The Legal Regulation of Pregnancy and Maternity in the Labour Market (Cavendish, 2009) 104.  James (n.42).  Rebecca Ray, Janet C. Gornick and John Schmitt, ‘Who cares? Assessing generosity and gender equality in parental leave policy in 21 countries (2010) 20 Journal of European Social Policy, 196.  Jagger (n.6) 245.  Jagger (n.6) 244.  MacKinnon (n.1) 216.