USQ Law Society Law Review
Chelsea Keirsnowski
Winter 2021
highlights, in a triangle of rights, dignity as a key consideration, Mackinnon instead believes that recognition of hierarchy is inclusive of considerations of dignity which leads to better outcomes.8 For instance, in recognising units of power in hierarchies it allows an acknowledgement of women who hold lower status and indignity in their social experience and opportunity. Mackinnon provides the example of Gosselin v Quebec (AG) to show how an absence of recognition of hierarchical impositions which define a social experience leads to negative consequences.9 In this Canadian case, social assistance to adults under 30 was reduced to a below subsistence rate causing many young women to resort to sex work. The court found this did not violate the welfare recipients’ dignity or their equality rights under section 15.10 Mackinnon proposes that this shows how current dignity standards are inadequate in maximising social equality. She then speculates that the welfare recipients’ rights would have been more adequately protected if the hierarchical powers that disadvantage young, low socioeconomic women were considered. Mackinnon suggests that decreasing welfare benefits for the youth, due to an antiquated notion they need to be coerced to seek education or employment, is discriminatory.11 Radical feminism is critical on the position that it is natural for women to be disadvantaged and explains that the gendered hierarchy has been socially created and enforced.12 Mackinnon is also critical of liberal perspectives that have a central focus on advocating for women to be treated the same as men. Radical feminism accepts that different treatment can address women’s subordination and has a holistic approach toward issues that are specific to women, such as sexual assault and rape.13 Further, Mackinnon proposes that the liberal idea of free speech is only effective if all voices have equal opportunity and value. However, in a gendered hierarchy, the voices of the powerful are amplified, allowing their views to be heard widely through society which often overpower and dampen women’s voices.14 From its alternative approach, radical feminism targets the source of the problem, one of political engagement and representation. For example, woman historically have been ostracised in the creation of the laws and systems of their societies to which they are constantly subject to.15 In exploring the feminist legal advances led by Mackinnon, she coined the term ‘sexual harassment’ in 1979, whilst in her 20’s, in her book Sexual Harassment of Working Women: A Case of Sex Discrimination.16 This led to the formation of anti-sexual harassment law in the 8
Maximilian Steinbeis, ‘ICON*S 2016 Conference, Session 2: “Inequalities” with SUSANNE BAER, CATHERINE MACKINNON and PRATAP BHANU MEHTA’, Verfassungsblog (Conference Presentation, 19 June 2016) <https://verfassungsblog.de/icons-2016-session-2-inequalities-with-susanne-baer-and-catharinemackinnon/> ‘ICON*S 2016 Conference, Session 2: “Inequalities”’ (no 8). 9 Gosselin v Quebec (AG) [2002] 4 SCR 429. 10 Canadian Charter of Rights and Freedoms s 15. 11 ‘ICON*S 2016 Conference, Session 2: “Inequalities”’ (no 8). 12 Catharine Mackinnon, ‘Excerpts from MacKinnon Schlafly Debate’ (1983) 1(2) Law and Inequality: Journal of Theory and Practice 341, 342. 13 Ibid 341. 14 Catharine Mackinnon, Toward a Feminist Theory of State (Harvard University Press, 1989) 206. 15 Catharine Mackinnon, ‘Reflections on Sex Equality Under Law’ (1991) 110(5) Yale Law Journal 1281, 1281. 16 Catharine Mackinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (Yale University Press, 1979).
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