Principles underlying the development of gender equality policy

Over time the definitions and understanding of gender equality at EU level have shifted. The original 1957 Treaty of Rome contained a commitment to equal pay for women. However, EU action to implement gender equality was not significant until the 1970s. Although EU policy was initially informed by an interpretation of equality that came close to same treatment with men as the norm, in the 1980s it was broadened to include the pursuit of equality based on difference via positive action policies (Hoskyns, Reference Hoskyns and Rossilli2000). The EU’s remit was restricted to economic and employment matters, which meant that the concept of equality applied tended to be narrow and to use the male experience as the reference point. Women and men were often treated as homogeneous groups, and, in addition, implementation by member states was piecemeal (e.g. Pillinger, Reference Pillinger1992; Rossilli, Reference Rossilli1997; Lombardo, Reference Lombardo2003; Walby, Reference Walby2004).

In the second half of the 1990s, the EU adopted a policy of mainstreaming gender, which it described as an approach to ‘promote equality between women and men in all. . .activities and policies at all levels’ (EU, 1996a, Introduction). In the same way that diversity seeks to recast the same-difference dichotomy, the transformative aspiration of gender mainstreaming also requires a re-conceptualisation of policies and, above all, processes. Rees (Reference Rees1998) has argued that gender mainstreaming has the scope to transform policy and to move beyond the narrow definitions prescribed by equal opportunities. Further, it has the potential to extend gender equality policy beyond the limited remit of employment. Squires (Reference Squires2005, p. 370) suggests that mainstreaming is a transformative approach that is capable of taking ‘us beyond the classic opposition between equality of opportunity and equality of outcome, as embodied in equal treatment and positive action, by focusing on the structural reproduction of gender inequality and aiming to transform the policy process such that gender bias is eliminated’. Others are less optimistic about its substantive practical application (e.g. Nott, Reference Nott, Morris and O’Donnell1999), and gender mainstreaming has been further obstructed by the limited guidance available for governments on implementation (Mazey, Reference Mazey2000). Mainstreaming aspires to cross all policy fields, but in practice the agenda seems to reflect a more ‘integrationist’ approach, which involves gender being inserted into existing frameworks (Lombardo, Reference Lombardo2005). This risks dilution by other policy priorities. Daly (Reference Daly2005, p. 440) concludes that ‘mainstreaming has won the “style battle” ’, but is often adopted for instrumental reasons such as ‘satisfying (usually EU) constraints tied to the allocation of funding’. Indeed, Stratigaki (Reference Stratigaki2005, p. 180) describes it as ‘rhetoric devoid of substance’.

The EU’s employment strategy is a prime example of the way that gender mainstreaming can dilute the application of gender policies and also serves to point to the potential threat posed by the diversity agenda. This dilution happened in two stages. The 1993 Maastricht Treaty extended the EU’s remit (or ‘competence’) into social policy, enabling it to adopt measures on childcare (EU, 1992) parental leave (EU, 1996b) and part-time working (EU, 1997). The Treaty of Amsterdam extended this social remit very substantially. But whereas before 1997 the EU’s action outside the economic and employment sphere had been constrained by its remit, from the late 1990s the EU voluntarily accorded top policy priority to economic and employment policies: not least in reaction to the challenges posed by globalisation. These policies were embodied in the European Employment Strategy (EES) and the Lisbon Process (EU, 1998; EU, 2000). The first way in which this diluted gender equality was by making social policy, and particularly gender policy, a handmaiden of economic and employment policy (Lewis, Reference Lewis2006, p. 421). Prioritising labour market participation meant that substantive issues associated with gender equality were demoted (Rubery, Grimshaw et al., Reference Rubery, Grimshaw, Fagan, Figueiredo and Smith2003). From 1998, the EES guidelines had contained an equal opportunities pillar. But in 2003 – in the second stage of the dilution of gender equality in the EES – this disappeared as gender equality became a ‘horizontal principle’ to be mainstreamed across all policy fields (Lewis, Reference Lewis2006, p. 430). The almost complete absence of any discussion of gender in the mid-term report on the Lisbon Strategy by Wim Kok (Kok and High Level Group, Reference Kok2004) showed how mainstreaming could amount to sidelining.

The issue of mainstreaming continues to be debated (e.g. Walby, Reference Walby2005). There are signs that the EU is now adopting a ‘dual approach of gender equality based on gender mainstreaming (the promotion of gender equality in all policy areas and activities) and specific measures’ (EU, 2006a, p. 2, emphasis added). This suggests that despite gender mainstreaming being firmly established on the EU’s agenda, it has not been able to fundamentally transform the way that gender is approached within the EU, despite aspirations that it would challenge the ‘unequal power relationship’ between women and men (Council of Europe, 1998, para. I.1). The UK has committed itself to gender mainstreaming since 1998, through the Women and Equality Unit (WEU, 2003), the branch of the UK civil service that is also responsible for diversity; indeed, the UK government’s approach to equality and diversity has incorporated the idea of mainstreaming.

Diversity

The EU traces the roots of its current ‘For Diversity against Discrimination’ campaign back to its creation when ‘one of its most pressing missions was to reconcile a continent divided by nationalistic and ethnic conflicts’ (EU, 2005, p. 4). However, it was only with adoption of Article 13 of the 1997 Amsterdam Treaty that the EU’s remit was broadened to include groups other than women and migrant workers in its equality and anti-discrimination policy and to apply its equality remit to a broad range of activities (that is, outside the employment/economic domain).

The main new directives require member states to ‘take appropriate action’ as envisaged by the new Article 13. The Race Equality Directive (2000/43/EC) has been described as ‘one of the most significant pieces of social legislation recently adopted by the European Union’ (Bell, Reference Bell2002, p. 384). The Framework Directive (2000/78/EC) combats discrimination on grounds of religion or belief, disability, age or sexual orientation. These new directives have added new concepts and applications of discrimination (Waddington and Bell, Reference Waddington and Bell2001) and broadened the way equality is to be conceptualised and implemented across all dimensions. Gender inequality is mainly tackled under a separate stream because it has historically been covered by separate EU legislation. Indeed, the EU is undecided about ‘strengthening the integrated approach to anti-discrimination’ to include ‘sex’, insisting that this ‘should not replace the particular focus on specific institutional arrangements and initiatives targeting all forms of gender discrimination as this is part of the existing gender mainstreaming approach’ (EU, 2004, p. 20).

Whilst the directives were welcomed for recognising and legislating in new areas where inequalities exist – such as religion and belief, sexual orientation and age – there was scepticism about their potential impact. It has been argued that a hierarchy of equality has been created where race equality is perceived to have priority (Waddington and Bell, Reference Waddington and Bell2001). Definitions are at times ambiguous and confusing (Guild, Reference Guild2000). A more specific concern for gender equality is that consistent definitions for different areas of inequality have been adopted because this approach was perceived to be most practical (McCrudden, Reference McCrudden2005). This implies that inequalities are similar and are perpetuated in similar ways. The ‘one size fits all’ approach has been criticised for its implicit assumptions that inequalities are equivalent: ‘Different inequalities are dissimilar because they are differently framed to be relevant as policy problems. This does, and should, affect the way political strategies are designed to address them’ (Verloo, Reference Verloo2006, p. 221). The central policy preoccupations of different groups are very different. Thus, for example, while the issue of assimilation versus multiculturalism has been crucial to debates on race and ethnicity, the relationship between paid and unpaid work has been crucial for gender equality. Another vital question is whether the new framework is in fact adequate for recognising and addressing multiple inequalities – something that is central to the concept of diversity, and a point discussed in the EU Green Paper (EU, 2004; see also Fredman, Reference Fredman2005).

The state of play

Despite such concerns, the EU Directives provided the impetus towards the establishment of the UK’s CEHR, which is scheduled to be operational by 2007. In the UK, the opt-out from the Maastricht Treaty’s Social Chapter and the Conservative government’s hands-off attitude towards gender issues meant that it was only after New Labour’s election victory in 1997 that significant change in gender policy could be expected. The change of government in the UK coincided with the adoption of the Treaty of Amsterdam and the European Employment Strategy. After the gender policy vacuum under the Conservatives, feminist hopes ran high: as the Equal Opportunities Commission optimistically stated: ‘In 1997, one day [election day] changed the way we work’ (EOC, 1998, p. 4).

Legislation already existed to combat discrimination on grounds of race, sex and disability in the UK. The three related Commissions dealing with these groups are now being bundled together into the CEHR. The post-Amsterdam EU directives have necessitated new legislation to combat discrimination on grounds of sexual orientation, religion and belief, and age. Consideration of the further move towards a single equalities body was initiated by a consultation paper, Towards Equality and Diversity (Cabinet Office et al., 2001). Between 2002 and 2005, equality, diversity and later human rights were the subject of further consultation including a 2002 follow-up to the 2001 document entitled Equality and Diversity: Making it Happen (DTI, 2002), the 2003 report from the Human Rights joint committee of both Houses of Parliament (HL, 2003), and the findings of a Taskforce that both fed into the White Paper (DTI et al., 2004) and contributed to the policy process after it was published (WEU, 2004b). The CEHR was established under the 2006 Equality Act.

Although much still remains unclear in terms of the actual working of the CEHR, the 2006 Equality Act lists three main sets of duties centering on equality and diversity, human rights, and the promotion of ‘good relations’ between different groups, a duty hitherto confined to the Commission for Racial Equality (Equality Act 2006, paras. 8–10) . As Baroness Catherine Ashton, the Minister for Human Rights, put it late in 2006, the CEHR will pursue ‘equality, diversity and human rights as central values of our society. . .’ while the government stated that ‘people and institutions will now have a single point of contact on equality and human rights issues. . .often the things that work to remove barriers for one group of people will work elsewhere’ (CEHR, 2006). This way of thinking about the CEHR thus assumes not only that the concepts of equality, diversity and human rights are compatible with each other but also that progress in each will reinforce progress in all. It also assumes that, institutionally, action on behalf of individuals in each group that is potentially subject to discrimination will not detract from action on behalf of others.

Alongside the CEHR, there are several other linked equality initiatives underway in the UK, notably the Discrimination Law Review (DLR) and Equalities Review, announced by the Cabinet Office and DTI in 2005.Footnote ⁵ The aim of the DLR is to harmonise the current anti-discrimination legislative framework and to introduce a Single Equality Act (WEU, 2006), but it has not yet reported. However, harmonisation represents a major challenge: there are currently 117 equality measures in force: 36 acts, 50 statutory instruments, 14 codes and 17 EC directives (Hepple, Reference Hepple2006). The ‘Equalities Review’ is an independent inquiry led by Trevor Phillips, the Chair of the Commission for Racial Equality, who has also been appointed as the first Chair of the CEHR. It explored the underlying causes of discrimination and published both an Interim and Final Report (Equalities Review, 2006; 2007).

The CEHR and gender equality

The European Commission has recognised that the main thrust of action to promote gender equality action at the EU level will take place in a separate institutional and policy strand (EU, 2006b). Although the EU may in future take action faster or more forcefully on, say, race discrimination than on sex and gender, it is clear that a specific focus on the latter will not be lost by being bundled together with other dimensions of diversity. With the bundling of the Equal Opportunities Commission into the CEHR, there appears to be more risk in the UK of sex and gender discrimination being lost.

Indeed, the implications for gender equality in the UK of the new Article 13 and the Directives and UK government action it generated are hard to determine. The ongoing policy reviews provide an opportunity to lobby for change. The Fawcett Society, aiming to capitalise on this potential, has published a paper calling, inter alia, for the following: simplification of gender equality legislation through harmonising existing sex equality legislation under a Single Equality Act; ensuring that legislation is enforced more effectively; introducing in the proposed Single Equality Act a new protected ground for discrimination – family and caring status; and addressing the current imbalances of the legal system that places much of the onus on the individual for seeking redress (Bellamy and Cameron, Reference Bellamy and Cameron2006).

The creation of the CEHR has been welcomed by the EOC, primarily because of the possibility it offers to consider the multiple disadvantages that an individual might suffer. Early in the debate, a paper prepared by Sandra Fredman for the EOC argued that the merging of equality strands into a single equality body would be advantageous because it has the potential to address cumulative discrimination more effectively and resolve competing tensions between equality strands (that is, the different groups represented by the old equality bodies) as they arise (Fredman, Reference Fredman2002). In addition, research carried out for the EOC showed that, for black and minority women, multiple identities were particularly important (Mirza and Sheridan, Reference Mirza and Sheridan2003). But there are also doubts. Recently, the EOC has emphasised its intention to draw up a gender manifesto for the next ten years to influence the agenda of the CEHR to ensure that it is informed by ‘a strong gender legacy’ (EOC, 2005, p. 10; 2006, p. 2).

There are also ambiguities about meanings, and tensions in the broader framework that is emerging, particularly between equality, diversity and the overarching framework of human rights, and between a focus on individual and group equalities, especially in the context of the different powers and duties ascribed to the CEHR in relation to individuals and groups and the potential disjuncture between the Equality Review’s definition of equality and the grounds for discrimination laid down in the Equality Act 2006. In a Standing Committee debate in the House of Commons on the Equality Bill on 29 November 2005, Meg Munn (the Minister for Women and Equality) outlined what the government meant by equality and diversity in the context of the CEHR:

These definitions signal the tensions in thinking about the position of individuals and groups which underlie the establishment of the single equalities body and which it will need to resolve before it becomes operational.

The government’s first consultation document on equality and diversity noted the importance of the EU directives outlawing discrimination on grounds of race, sexual orientation, religion and belief, disability and age, and made a primarily business case for implementing them. Gender equality was not considered in this document (Cabinet Office et al., 2001). Indeed, there has been more reference to the framing of diversity in thinking about race and ethnicity than about gender. In its second Consultation Paper, issued in 2002 the Labour government stressed the extent to which ‘people are increasingly looking for equal treatment that respects the many facets of their identities’ (DTI, 2002, para. 3.4) and the need to go beyond the concerns of individual groups in order to ‘mainstream’ equality ‘across a broad front’ (DTI, 2002, para. 3.6). While the different needs of the different ‘[equality] strands’ were acknowledged, the focus was firmly on reducing discrimination against individuals, with, again, a strong statement as to the importance of such a ‘diversity agenda’ (DTI, 2002, para. 2.1) to businesses, a preoccupation that remained in the 2004 White Paper:

The Government Taskforce on the CEHR, which met during 2003/04, also addressed the key issue of individuals and groups, resolving the problem mainly by reference to the CEHR’s overarching human rights framework: ‘Human rights principles offer a framework for addressing conflicts between rights of individuals and those of groups. . .and enhance community cohesion between groups’ (WEU, 2004b, Summary of Discussions up to 1.4.04, pp. 5–6). Similarly, the 2004 White Paper described human rights as providing the ‘language we can all share’ (DTI et al., 2004, para. 1.10) and the basic values and fairness for all individuals that would serve to promote community cohesion. Human rights were thus seen as providing the universal standards which would allow the CEHR to ‘be able to respond to the complexity of individual and group identities which are rarely defined by a single feature’ (DTI et al., 2004, para. 3.7).

The 2006 Interim Report of the Equalities Review tried to re-think the basis for promoting equality within the new institutional framework of the CEHR. The Interim Report sees persistent inequalities in terms of ‘vulnerabilities’ that are distinguished by membership of a particular group, and ‘trigger episodes’ that may occur in the life of the individual (for example unemployment) and, while the language has been changed in the final Report, these ideas are still prominent. More important, both the Interim and the Final Report use a ‘capabilities approach’ to address inequality, suggesting that everyone should possess a ‘basic minimum set of capabilities. . .in order to play a proper, autonomous part in society’ (Equalities Review, 2006, p. 8). The Final Report contains a clearer statement as to the importance of recognising ‘the role that society and its structures and institutions play in restricting or releasing people’s full potential’ (Equalities Review, 2007, p. 15), as opposed to the ‘will or skill’ of the individual (ibid., p. 17).

However, as Lewis and Giullari (Reference Lewis and Giullari2005) have pointed out, the capabilities approach, derived from the work of Amartya Sen (Reference Sen1999), tends to take the individual rather than the group as its focus. While it is possible to use the capabilities approach to argue for major structural reforms to enable the ‘real choices’ of individuals – and the report argues for the removal of unfair penalties associated with group membership – the approach is largely untried in terms of policy implementation. Indeed, it is difficult to see how enforcement powers that combat inequality based on discrimination experienced by the individual (even as a member of a specified group) could be used to combat inequality deriving from, say, social exclusion and disadvantage. In the context of equal opportunities legislation, such a framing of equality puts at risk an appreciation of the importance of the substantive nature of particular forms of inequality (see also Dickens, Reference Dickens2006).

Thus the CEHR must grapple with how, in practice, to continue to balance a focus on the individual and on the group, and with how to promote understanding of the specific nature of inequality in any particular group. The challenges listed in the Interim Report of the Equalities Review mainly concern education and race/ethnicity, only three out of eleven mention women and only one relates mainly to gender (Equalities Review, 2006, p. 62). The Interim Report said that the Equalities Review would consider the position of women in relation to the labour market more fully in its Final Report (Equalities Review, 2006, p. 48) and the Final Report fulfils this promise. But its consideration of gender inequality remains low compared to inequality deriving from race, poverty or social exclusion. The precarious status of gender in relation to other types of inequality was highlighted when, as late as 2004, the Equal Opportunities Commission and others found it necessary to ‘make a strong case for expanding the remit of the CEHR to include those with caring and family responsibilities, and covering employment regulations on flexible working, part time workers, parental leave and maternity/paternity rights’ (WEU, 2004a, para. 43).

In fact, the CEHR’s powers to take remedial action will be based on the individual: the Taskforce on the CEHR, which sat during 2004, early rejected the case for class actions (WEU, 2004b, 10 June, para. 28) and the White paper (DTI et al., 2004) confirmed this approach, which has characterised previous equal opportunities legislation in the UK. Diversity also focuses on the claims of the individual. Nevertheless, the White Paper recommended that when deciding which individual cases brought under discrimination legislation to support, the CEHR should ‘pay particular attention to whether they. . .affect large numbers of people’ (DTI et al., 2004, para. 4.16). In the event, the government backtracked on this in its response to the consultation, deciding not to impose statutory restrictions on the CEHR’s decisions (WEU, 2004a, section VIII). However, in its duty to promote equality, it seems that the CEHR will have more scope to take on board issues of discrimination experienced by groups, although its scope for ‘positive action’ in this regard is unclear.

The Equalities Review (2007) provides a clear road-map for how the CEHR is likely to fulfil the parts of its role that do not involve action in the courts. How it fulfils its role in connection with legal action to combat discrimination will depend on the outcome of the Discrimination Law Review. The Final Report (2007, p. 115) of the Equalities Review strongly supports a Single Equality Act that:

The Final Report (2007) does not discuss whether such legal action on behalf of groups could be taken on the different grounds that underlie the discrimination that their members experience (see above). Indeed, it appears to lump all the groups together, commenting simply that it had found ‘severe inequalities facing all groups, and therefore see[s] no reason why the legislative framework should not cover all those groups’ (ibid.). Of course, a fixed categorical approach would also be problematic (Fredman, Reference Fredman2001). It proposes that equality on the basis of transgender – but not, as the Fawcett Society argues, family and care – be added to the list of six grounds for discrimination action currently explicit in legislation. If realised, this demand for discrimination law to be extended to groups would be a marked departure. It also runs the risk of doing nothing for individuals who suffer discrimination on grounds not covered by their membership of a named group.Footnote ⁶ However, the recent imposition of ‘positive duties’ to promote gender (disability and race) equality holds out the possibility of moving beyond the need for the individual to prove discrimination (Equalities Review, 2007, p. 115; see also Fredman, Reference Fredman2001). Much depends on the direction taken by the Discrimination Law Review.