By Lianne Voon

Whatever gender differences exist, they do so in a web of culturally produced assumptions and implications. These create a gender narrative which underlies our every engagement with the people around us. Historically, the assumptions behind gender difference have been used to legitimise the divide of society into public and private spheres, and the relegation of women to that private sphere. [1] That is, gender differences and the narrative built around them have been the reason why men have more options, greater freedoms and vastly better outcomes than women.

In response to this, second wave feminists understood equality to be the rejection of gender difference. If gender differences justified and perpetuated inequality, the argument to be made was that men and women were fundamentally the same. In terms of societal structure and engagement, this meant that women and men should be treated the same way. They should be given equality of opportunity in order to facilitate equality of outcome; in other words, treated the same in order to access the same rights and privileges. This approach of treating people the same in order to treat them equally is known as a symmetrical approach. [2] It rests on the belief that there are no differences between women and men which are significant enough to locate them differently regarding any issues, norms or legislation. Ultimately, it assumes what Catharine A. Mackinnon calls a “human commonality” under divisions of sex and gender. [3]

The symmetrical approach generates two models, both grounded in the concept that women are no different from men, and that therefore we must treat people the same to treat them equally. The first model is assimilation, which posits that given the same access to opportunities and privileges as men, women can be and are like men.[4] The second model, androgyny, asserts that the human commonality of women and men requires society to find some middle ground between the two. [5] In this middle ground, we find an androgynous figure who serves as the foundation of equality, treating women and men as we would this androgynous character. However, treating women and men the same, as in either model, is ultimately irreconcilable with treating women and men equally. The symmetrical approach fails due to a profound inability to adequately account for gender differences and disregards the nature of inequality, which then give rise to significant problems when we attempt to apply them to the real world. One of the clearest examples of this is in medical practice: Tests for disease and symptoms of illness have always been standardised for men and therefore fail more often when applied to women. Due to differences in physiology, heart attacks present differently in women and tests for colon cancer and Alzheimer’s are not as accurate or reliable. Women are also 47% more likely to suffer injuries in car accidents due to cars being designed with male proportions in mind. Differences exist. In disregarding them, we render invisible the structures that perpetuate the marginalisation of women and their disadvantages.

Likewise, dissolving or overlooking differences in the legal world masks and silences. Historically, sex differences were understood to be natural, innate and unchanging. The subordination of women and dominance of men was an inevitable, inextricable product of this, rather than the structures of power surrounding them and the unequal relationships created by them. By dissolving or overlooking differences, a long and complex history where women have had little choice but to accept and adapt to narrow constraints of living, as well as being understood and valued in the way they are today, is oversimplified. 6 What important differences exist between genders and sexes may have developed due to that history of power imbalances and structural inequalities — to the concrete experience of women, rather than sex and gender differences in themselves.  

In terms of the assimilation model, this issue is most obvious when we consider laws around pregnancy and parental leave. Pregnancy has often been analogised to illness in order to achieve equality in terms of job security, payment and approved leave. However, it necessarily involves absorbing female experiences into a male narrative by requiring structures which treat women as they already treat men. This is problematic as equality is only accessible where female experiences arising from sex and gender differences can be analogised to experiences in the male narrative and point of view. What equality is achieved isn’t by virtue of being a woman, but by achieving the status and opportunity of a ‘social male’ in order to access the same outcomes.

Likewise, difficulties with the androgyny model become clear when we consider the reality of women in the workforce. Sex inequality means that even when women are equipped with the same ability and skills, they are not seen as situated similarly or having equivalent value.  Women as a group have higher rates of unemployment and underemployment than men, and are underrepresented in leadership and senior management roles in both the public and private sectors, while two-thirds of minimum wage earners are women. Women are unable to access the same opportunities for achievement and be recognised for success due to being seen as simply not fitting the dominant social system and style. While the assimilation model may give women the same career opportunity as men and the androgyny model may present the same career opportunity to all sex and genders, neither accounts for lived experiences which have historically set women back; such as unpaid labour in the home, unequal access to education and skill development, and stigmatising attitudes which remain today.

Symmetrical approaches ultimately work from an incomplete picture of inequality because their fundamental understandings and responses to women, men and the androgynous ideal are all predicated on the assumption that they are already equal in value and recognised as such. Whatever the labels are used, the perspective of the law and all other social codes are essentially male. 7 Differences clearly exist in sex and gender, but in making divisions using a historically male-dominant perspective, society has erected male standards which function to exclude and limit women, and so treating women and men the same is simply “sharing male power more broadly” rather than treating them equally in any meaningful way. 8 The symmetrical approach stops us from recognising that men are already “affirmatively compensated in society’s organisation and values” .9

While differences between women and men simply exist and exist equally, men are held in higher regard across all institutions, and so symmetrical models only serve to perpetuate implicitly male standards in society. This means that men and women are not, in fact, treated equally when they are treated the same, and law and policy ought to recognise this.

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[1] Christine A. Littleton Reconstructing Sexual Equality (Feminist Social Thought: A Reader, Routledge, New York, 1997).

[2] Above n 1.

[3] Catharine A. Mackinnon Toward a Feminist Theory of the State (Difference and Dominance: on Sex Discrimination, Harvard University Press, Cambridge, 1989), at 7.

[4] Littleton, above n 1.

[5] Littleton, above n 1.

6 Littleton, above n 1.

7 Mackinnon, above n 3.

8 Littleton, above n 1, at 6.

9 Mackinnon, above n 3, at 11.