LAW AND GENDER: THE FORMAL EQUALITY APPROACH IN THE FEMINIST JURISPRUDENCE

Abstract

Formal equality is the principle of treating like people alike. In determining whether people are alike and thus deserve the same treatment, formal equality demands that people be judged according to their actual characteristics rather than on their basis of assumptions or stereotypes about who the y are or who they ought to be. In the context of sex, formal equality requires the state to provide men and women the same opportunity to exercise civic responsibility, such as voting and serving in public service. Sequel to this, the aim of this article is to critically examine law and gender with respect to the formal equality approach in the feminist jurisprudence. The objectives of this article were to explore the historical foundations for women's claim to formal equality, formal equality and the constitutional right to equal protection, formal equality in employment, and state public accommodations laws and associational freedoms, as well as challenges in implementation of formal equality approach in respect of gender and the solutions to these problems. The research methodology was doctrinal approach, using expository and analytical research design. The main sources of data collection were various legal literatures, both from the physical library and the e-library. It was observed that formal equality approach requires public benefits such as social security and unemployment compensation to be available to men and women on the same terms and that property rules, tax liabilities and maintenance rules be sex-neutral. Formal equality also dictates that employers apply the same hiring and promotion criteria to men and women. It was recommended among others that affirmative action plans should be designed to increase female representative in traditionally male occupations and pay equity schemes designed to restructure wage scale. Also, women's weakness should not be overemphasizing as some women are stronger than their male counterpart. In other words, strength and capability should be taken into account and not necessarily gender to have balanced equivalent opportunities.