Equality - IA de Investigación especializada en el MIT

Igualdad

Catharine A. MacKinnon

The distinction between formal and substantive equality is theorized then illustrated
by sexual harassment law in the United States and in international legal develop-
mentos. The convergence of sexual harassment concepts with prostitution, hence of
sex discrimination law with the Nordic/Equality Model, is explained and explored.

E quality is a concept frequently vaunted and purportedly applied but infre-

quently genuinely interrogated. Its usual approach, what is considered its
common sense meaning, is the formal equality notion used in most U.S.
law and in most other jurisdictions. This conception is uncritically predicated on
Aristotle’s formulation that equality means treating likes alike, unlikes unalike.1

My observation and contention is that this approach cannot produce social
equality under conditions of real social inequality.2 Actually, it was never meant
to produce equality under unequal conditions, but rather to eliminate destabiliz-
ing conflict among polis members who were already structurally a presumptively
equal elite: prominent adult Greek male citizens. The failure of this model to pro-
duce equality among social unequals is therefore not, theoretically speaking, Ar-
istotle’s fault. Which is more than can be said for the theorists, societies, y legal
systems that have failed to question it, while elaborating it, extending it, and ap-
plying it to real social inequalities for the past some two thousand years.

Women’s inequality to men, half of humanity’s inequality to the other half,
with each group containing much variation and every inequality, provides a key
illustration of the model’s failure and of the impossibility of its success.3 Women,
rendered “different” from men socially, because or to the degree we are not “the
same” as men, axiomatically may not qualify for treating “likes alike”: conven-
cionalmente, first-class equality. That would require masculine privileges few women
have or have had. As men’s “unlikes,” women can be treated “unalike,” and this
equality is satisfied. This can include better treatment, for instance through af-
firmative action or special labor protections or maternity benefits. Such instanc-
es are rare, dubious, paltry, sometimes downright injurious, and often allow men
successfully to claim sex discrimination, since all men have to do to be sufficiently
“the same” as women who qualify for such considerations is to become compara-
ble for this purpose, específicamente, to drop to women’s social status, cual, seldom
having been biological, is not that difficult.4

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More commonly, even systemically, so-called unlikes being treated unalike
can mean women being treated worse than men. This is pervasive. It includes be-
ing paid less for doing work that is either different from or almost, but not exactly,
the same as the work men do: eso es, most work women are required or permit-
ted to do, so-called women’s work in sex-stratified and segregated labor markets.5
O, women can be paid less than men for doing work that generates the same
amount of value as work mainly men perform, but because it is seen as different
trabajar, corresponding to women’s so-called differences from men, it is not seen as
equally valuable.6 Treating unlikes unalike–again, considered equality in this ap-
proach–also includes not considering many things unequal that are almost en-
tirely gender-defined. Por ejemplo, women are apparently considered so differ-
ent from men sexually that sexual violation has not conventionally been consid-
ered an act of inequality at all, although the fact that 99 percent of documented
sexual assaults against women are committed by men,7 con 90 percent of sexu-
al assaults total being committed against women, could be seen as documenting a
major inequality based on sex.8 Because this apparently is tacitly regarded as a sex
diferencia, it is not generally legally seen as an inequality, Por ejemplo, rape law
not being subjected to constitutional sex equality standards except when facial
sex discrimination occurs, most often against men.9 So women can be impover-
ished, stigmatized, violated with impunity, and otherwise disadvantaged and still
be considered treated equally under the “unlikes unalike” formal equality rubric.
What are widely regarded as the aforementioned “differences”–considered
ontological essences or natural statuses rather than epistemic and imposed as-
cribed attributions–actually are socially determined, largely by inequality it-
self. The idea that sex differences are natural, their consequences biologically in-
evitable, is a social idea. Apart from that, men are just as “different” from wom-
en as women are from men, yet are not treated as lesser beings on that basis. En
otras palabras, cualesquiera que sean sus orígenes, such differences as exist between the sexes
are equal. It is the attributed treatment, estado, regard, worth, credibility, fuerza
that is unequal, meaning ranked more and less. Those consequences are indisput-
ably socially determined. The standard for comparison–who or what one needs
to be the same as in order to be considered an equal, hence potentially deprived
of equality when disadvantaged–is the top of existing social hierarchies. Put an-
other way, the conventional equality approach imposes and privileges elite, white,
Western, upper-class masculinity by making them the standards that equality
claimants must meet, thereby building male dominance and white supremacy,
among other structural hierarchies, into formal equality’s calculus.10

The Aristotelian approach thus obscures the fact that, within it, the opposite
of equality, the essence of inequality, is not difference, but hierarchy. The true in-
equality calculus is not one of sameness and difference, but of dominance and
subordination. Once sameness and difference is unmasked as a neutral cover for

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesEquality

dominance and subordination, and social inequality is grasped as a hierarchy rath-
er than an expression of “difference”–actually a creator of what is called “dif-
ference”–imposing differences and their perception, the assumption that some
groups are inherently inferior, others innately superior–essentialism or natural
hierarchy–is revealed as built into formal equality. The supposed tool for disman-
tling inequality is exposed as constructing and reinforcing it.

Substantive equality, based on recognition of the human equality of groups
historically kept socially unequal, has arisen as an alternative.11 First recognized
in Canadian law, now influencing much of the world, this analysis defines in-
equality not in terms of sameness and difference, but in terms of historic group
disadvantage based on concrete grounds that include sex, carrera, religión, national-
idad, disability, and age. Its purpose is to produce social equality.12 Hierarchy is its
central dynamic. There is no magic in the word “hierarchy,” although it does seem
to break through a lot of privileged ignorance and denial. A hierarchy has to be
systemic, cumulative, and structural to function as the core dynamic of substan-
tive inequality, grounded in concrete social bases. All this is relative to concrete
evidencia, which courts can assess. Y, obviamente, a hierarchy has to be vertical, a
top-down arrangement, to be discriminatory in the substantive sense.

I n this picture, sexual harassment law in the United States is notable for oper-

ating under the aegis of formal equality but building in substantive inequality
awareness, carving itself out as something of an exception to some of formal
equality’s more limiting legal doctrines. Instead of seeing sexual harassment–the
imposition of unwanted sexual attention and pressure on a person who is not in
a position to refuse it–as part of the natural order of things, sexual harassment
law sees it as discrimination on the basis of sex, a civil and human rights violation.
When women are sexually aggressed against, it exposes their position not as one
of feminine “difference,” but as inequality based on sex and gender, persistent-
ly together with race and often age and disability in particular. Sexual harassment
law, in which all the breakthrough cases were initiated by Black women plaintiffs,
has always been intersectional on the level of its facts,13 and is moving increasing-
ly to being intersectional on the level of its doctrine as well.14 The legal claim has
proven capable of reaching social as well as institutional hierarchies. It implicit-
ly grasps that the central impetus driving the practice is the imposition of a subor-
dinate position within a sexualized social hierarchy of status, regard, premio, dig-
nity, and power.

Sexual harassment law, for the first time in equality law (so far as I know, en
law at all) addresses the core substance of the inequality of sex: hierarchically im-
posed sexuality.15 Unequal sexuality is the substance of the substantive inequali-
ty recognized in this area. If a behavior covered by sexual harassment law that is
claimed as unwelcome and damaging is sexual, it is widely and increasingly un-

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149 (1) Winter 2020Catharine A. MacKinnon

derstood by U.S. courts to be gendered, hence potentially discriminatory on the
basis of sex.16 Before sexual harassment was recognized as a gender-based legal
afirmar, gender harassment was understood as an expression of sex-based inequal-
idad, but sexually abusive acts had never been recognized as based on anything, far
less as legally unequal. Sexual harassment law changed that.17

The hierarchy recognized in U.S. sexual harassment law can be in employ-
mento, as between boss and worker, or in education, as between teacher and stu-
mella, because sexual harassment is statutorily prohibited in those contexts. O,
the hierarchy in those settings can be gender itself, as between coworkers in work-
places18 or students on campuses.19 Sometimes reverse formal but consistent so-
cial hierarchies, such as lower-level men workers harassing women managers or
men students sexually harassing women teachers, are recognized as well. The un-
derstanding of sexual abuse as hierarchically based on sex is predicated upon, pero
not confined to, heterosexual interactions involving men over women, the domi-
nant socially imposed sexual model. Same-sex sexual harassment, without regard
to the sexual orientation of the parties, has been recognized as potentially sex-
based discrimination as well.20

What makes the law against sexual harassment transformative, apart from the
extent to which it grasps inequality as hierarchy and imposed sexuality as based
on gender often combined with race and ethnicity, is the fact that it provides a le-
gal claim for the vicious social imperative to exchange sex for survival, or its pos-
sibility, whether or not the survival turns out to be real. This unchosen exchange
characterizes much of the substance of women’s inequality worldwide. En otra
palabras, in its fundamental dynamics, sexual harassment, which requires the de-
livery of sex as the price for women’s material survival, turns otherwise real work
into a form of prostitution, the floor of women’s unequal condition. Women and
girls enter prostitution as a consequence of options precluded or stolen, como resultado
of a lack of alternatives, making consent to it, or choice of it, fraudulent and illuso-
ry, just as sexual harassment is unchosen.21 Women who supposedly have human
rights, including equality rights in employment and education, are reduced to this
same floor of women’s status when tolerance of sexual harassment with impu-
nity–or sexual delivery in any form, from objectification to rape–becomes a re-
quirement of participation in the paid labor force or material survival in any form.
This includes paid housework, where it is widespread, and educational or career
adelanto, where it is rife.22

If requiring sexual use as the price of survival violates equality rights when com-
bined with a real job or other entitlement, they are certainly violated when it is the
only thing for which a woman is valued. Yet buying a person for sexual use is not
effectively illegal; certainly it is not seen as a violation of equality rights in most
lugares. The only difference between sexually harassed women and prostituted
women is the social class, or class image, of many of the women affected. A sub-

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stantive equality approach to prostitution, as embodied in the abolitionist Nor-
dic Model, extends the core sexual harassment concept to the decriminalization of
anyone being bought and sold for sex, and penalizes sellers (pimps and sex traffick-
ers) y, most importantly, buyers, disproportionately white and upper-class men,
whose demand drives the sex industry. Because it lowers the status of the privi-
leged and raises that of the disempowered, it is also termed the Equality Model.

J urisdictions and authorities around the world are pioneering recognitions of

substantive equality in various areas of violence against women. Under the
European Convention on Human Rights, a new sex equality jurisprudence is
developing with specific application to rape and, most stunningly, to domestic vi-
olence.23 In international criminal law, substantive sex equality concepts are field-
ed in prosecutions for gender crime, including in the ad hoc tribunals for genocid-
al rape24 and in the International Criminal Court’s (CPI) statute25 and in a case for
recruitment and use of child soldiers,26 bringing together equality concepts from
human rights with the prohibitions of international criminal and humanitarian
law. In the prostitution and sex trafficking field, one of the fastest and most prom-
ising areas of law moving toward equality around the globe, Sweden’s criminal-
ization of sex purchasers and pimps and decriminalization of prostituted people,
es, in effect and in legislative introduction, a substantive sex equality law.27 It has
been adopted in various forms in Norway, Iceland, the Republic of Ireland, North-
ern Ireland, Canada, Francia, and Israel.

Perhaps the most striking illustration of the contrast between formal and sub-
stantive equality analysis in the constitutional domain can be found in South Afri-
ca’s decision in Jordan v. Estado, in which the dissent argued that criminalizing pros-
tituted people and not criminalizing their customers constituted unfair discrimi-
nation on the basis of sex.28 The Palermo Protocol to the Transnational Organized
Crime Convention, defining sex trafficking to include sexual exploitation through
“abuse of power or position of vulnerability,” as well as through force, fraud, y
coercion, is also a de facto substantive equality law.29 The UN Secretary-General’s
Report of 2006 recognized sexual violence explicitly as a form of gender-based in-
equality, as did the dual resolutions on the same day in 2013, one by the Committee
on the Elimination of Discrimination against Women (CEDAW), the other by the
Security Council, converging human rights with humanitarian law, both recog-
nizing gender-based violence as at once a substantive form of sex inequality and a
threat to international peace and security.30 Appropriately, it is principally in the
law of sex-based abuse that the substantive equality action is.

Where sexual harassment law is recognized as an equality claim, where wom-
en are guaranteed equality rights, many social sectors and organizational entities
are beginning to recognize an obligation to foster environments free from sexual
objectification, pressure, or aggression, to welcome rather than punish reporting

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149 (1) Winter 2020Catharine A. MacKinnon

of sexual abuse, to encourage accountability not impunity for individuals or insti-
tutions that engage in or enable it, and to operate on rules of excellence and inclu-
sion rather than hierarchy and fear. These apprehensions and standards are driv-
ing the #MeToo movement, and with it women’s (and some men’s) rejection of
prostitution’s standards for their lives. Together they begin to embody what a real
change toward equality for women could look like. An Equal Rights Amendment,
interpreted to promote substantive equality, parallel to the vital international rec-
ognitions mentioned, is the one domestic legal change that could impel these ad-
vances on a scale that approaches the need and call for them.31

Sobre el Autor

Catharine A. MacKinnon, miembro de la Academia Americana desde 2005, es el
Elizabeth A. Long Professor of Law at the University of Michigan Law School and
the long-term James Barr Ames Visiting Professor of Law at Harvard Law School.
She practices and consults widely on sex equality issues under international and do-
mestic law. Her recent scholarly books include Butterfly Politics (2017), Sex Equality
(3tercera ed., 2016), and Are Women Human? (2006).

notas finales

1 See Aristotle, The Politics, trans. Benjamin Jowett (Nueva York: Modern Library, 1943), 307
(“Equality consists in the same treatment of similar persons”); and Aristotle, The Nico-
machean Ethics, ed. j. l. Ackrill and J. oh. Urmson, trans. David Ross, rev. ed. (Oxford:
prensa de la Universidad de Oxford, 1980), 1131a–1131b, 112–117.

2 This analysis is fully presented in Catharine A. MacKinnon, Sex Equality, 3rd ed. (Nuevo

york: Prensa de la Fundación, 2016).

3 It is also my view that the gender-based inequality described here characterizes much of
some men’s inequality over other men, making sexual politics politics unmodified.
4 A splendid example is Weinberger v. Wiesenfeld, 420 A NOSOTROS. 636, 653 (1975), which held that a
surviving husband of a working mother who died in childbirth was entitled to survi-
vorship benefits previously reserved for surviving mothers married to decedent work-
ing men.

5 Fundamentalmente, “most employed women still do the work that mostly women have traditional-
ly done; al menos, they predominate in traditionally female occupations and remain mi-
norities in other pursuits.” For example, “service and caretaking occupations, como
nursing (90.1 percent of registered nurses and 91.8 percent of nurse practitioners), segundo-
retarial and administrative support (94.4 por ciento), teaching young children (97.8 por-
cent of preschool and kindergarten teachers and 81 percent of elementary school and
middle school teachers), and waiting tables (70.4 por ciento)” are predominantly female.
“Men predominate everywhere else, including in the better paying professional and

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blue-collar sectors” where, por ejemplo, they constitute 80 percent of software devel-
opers and 69 percent of lawyers. MacKinnon, Sex Equality, 171.

6 See Lemons v. City of Denver, 17 Fair Empl. Prac. Cas. 906 (D. Colo. 1978), affirmed 620 F.2d
228 (10th Cir. 1980); and AFSCME v. State of Washington, 578 F. Supp. 846 (W.D. Lavar.
1983), invertido 770 F.2d 1401 (9th Cir. 1985).

7 Mateo J.. Breiding, Sharon G. Herrero, Kathleen C. Basile, et al., “Prevalence and Char-
acteristics of Sexual Violence, Stalking, and Intimate Partner Violence Victimization–
National Intimate Partner and Sexual Violence Survey, United States, 2011,” Morbidity
and Mortality Weekly Report Surveillance Summaries 63 (SS08) (2014): 5. “For female rape
victims, an estimated 99.0% had only male perpetrators. Además, an estimated
94.7% of female victims of sexual violence other than rape had only male perpetrators.
. . . The majority of male rape victims (an estimated 79.3%) had only male perpetrators.”
8 Howard N. Snyder, Sexual Assault of Young Children as Reported to Law Enforcement:
Victim, Incident, and Offender Characteristics (Washington, CORRIENTE CONTINUA.: A NOSOTROS. Department of
Justicia, Bureau of Justice Statistics, 2000), 4. “The female proportion of sexual assault
victims reached 90% at age 13 y 95% at age 19. . . . En general, across all specific [sexo-
ual] offense categories, the proportion of female victims increased with the age of the
victim.”

9 Ver, por ejemplo, Michael M. v. Superior Court, 450 A NOSOTROS. 464 (1981).
10 Black is capitalized in recognition of the authentic ethnicity and culture created by and
imposed upon African Americans in the United States, as one term of pride and identi-
ty chosen by Black people. “White” is not capitalized as it is not an ethnicity but a gar-
bage category of skin privilege that is really a designation of status and power, the only
purpose of which is to elevate so-called white people over and at the expense of peoples
not regarded as white.

11 Substantive equality as such was first publicly proposed as a legal theory in a talk by that
name delivered in Ottawa, Canada, en 1989, and published for the first time in a re-
cent collection. See Catharine A. MacKinnon, “Substantive Equality,” in Butterfly Pol-
itics (Cambridge, Masa.: Prensa de la Universidad de Harvard, 2017), 110–125. This equality theo-
ry originated in Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case
of Sex Discrimination (Cambridge, Masa.: Harvard University Press, 1979), 106–141;
was further developed in Catharine A. MacKinnon, “Difference and Dominance: On
Sex Discrimination,” in Feminism Unmodified: Discourses on Life and Law (Cambridge,
Masa.: Harvard University Press, 1987), 32–45; and was presented in the aforemen-
tioned speech, on file with author, to the National Meeting of Equality-Seeking Groups
in Ottawa, Canada, January 13–16, 1989 (“the alternate view that could change things
is best pursued . . . through a substantive analysis of each particular inequality”). Para
an analysis of my legal work in Canada, see Sheila McIntyre, “Timely Interventions:
MacKinnon’s Contribution to Canadian Equality Jurisprudence,” Tulsa Law Review 46
(1) (2010): 81–106.

12 See Catharine A. MacKinnon, “Substantive Equality Past and Future: The Canadian
Charter Experience,” in Canada in the World: Comparative Perspectives on the Canadian
Constitution, ed. Richard Albert and David R. Cameron (Cambridge: Cambridge Uni-
versity Press, 2018), 227–244.

13 See Meritor Savings Bank v. Vinson, 477 A NOSOTROS. 57 (1986); Barnes v. Costle, 561 F.2d 983 (D.C.
Cir. 1977); Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981); and Alexander v. Yale University,

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149 (1) Winter 2020Catharine A. MacKinnon

631 F.2d 178 (2d Cir. 1980). For discussion, see MacKinnon, Sexual Harassment of Work-
ing Women, 53–54.

14 Ver, Por ejemplo, Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008); Rogers v. Equal
Employment Opportunity Commission, 454 F.2d 234 (5th Cir. 1972); Ferguson v. Pipefitters
Association Local 597, 334 F.3d 656 (7th Cir. 2005); Hicks v. Gates Rubber Company, 833 F.2d
1406 (10th Cir. 1987); Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982); and Antho-
ny v. County of Sacramento, 898 F. Supp. 1435 (E.D. Cal. 1995). See also Lam v. Universidad de
Hawaii, 40 F.3d 1551 (9th Cir. 1994). For further analysis, see Sumi K. Dar, “Converging
Stereotypes in Racialized Sexual Harassment: Where the Model Minority Meets Suz-
ie Wong,” Journal of Gender, Carrera & Justicia 1 (1997): 177–212; and Antuan M. Johnson,
“Title IX Narratives, Intersectionality, and Male-Biased Conceptions of Racism,"
Georgetown Journal of Law & Modern Critical Race Perspectives 9 (57) (2018): 57–75.

15 This proposition is argued at length in Catharine A. MacKinnon, Toward a Feminist Theo-

ry of the State (Cambridge, Masa.: Prensa de la Universidad de Harvard, 1989).

16 This argument is made in MacKinnon, Sexual Harassment of Working Women. In consider-
ing what is “based on sex,” many courts have gone no further than Judge Reinhart’s ob-
servation that “sexual harassment is ordinarily based on sex. What else could it be based
en?” Nichols v. Franco, 42 F.3d 503, 511 (9th Cir. 1994).

17 McKinney v. Dole, 765 F.2d 1129 (D.C. Cir. 1985).
18 See Faragher v. City of Boca Raton, 524 A NOSOTROS. 775 (1998); Landgraf v. USI Film Products, 511 A NOSOTROS.

244 (1994); and Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992).

19 Peer sexual harassment is the main content of “campus sexual assault” as widely report-

ed and litigated in the last decade or so.

20 Oncale v. Sundowner Offshore Services, Cª, 523 A NOSOTROS. 75 (1998); and Rene v. MGM Grand Ho-
tel, Cª, 305 F.3d 1061 (9th Cir. 2002). See also Miles v. New York University, 979 F. Supp.
248 (S.D.N.Y. 1997). Consolidating three appellate cases, Estados Unidos. Supreme Court has
accepted review on the question of whether same-sex and transgender discrimination
are sex-based.

21 See Catharine A. MacKinnon, “Trafficking, Prostitution, and Inequality,” Harvard Civil
Rights-Civil Liberties Law Review 46 (2011): 271–309. On consent, see Catharine A. Mac-
Kinnon, “Rape Redefined,” Harvard Law & Policy Review 10 (2016): 431–477.

22 A fuller analysis of sexual harassment in these terms may be found in MacKinnon, Sexual
Harassment of Working Women, and in the preface to the 2019 paperback edition of But-
terfly Politics.

23 As applied to rape, see M.C. v. Bulgaria, App. No. 39272/98, European Court of Human
Rights (2003); and Vertido v. The Philippines, views under art. 7, para. 3, of the Option-
al Protocol, CEDAW/C/46/D/18/2008 (Septiembre 1, 2010). On domestic violence, ver
Opuz v. Pavo, App. No. 33401/02 European Court of Human Rights, para. 153 (2009);
and Gonzales v. United States, Case 12.626, Inter-American Commission on Human
Rights, Report No. 80/11 (2011).

24 The legal recognition of rape in a genocide originated in Kadic v. Karadzic, 70 F.3d 232 (2d
Cir. 1995), and was first applied by an international authority in Prosecutor v. Akayesu,
Case No. ICTR-96-4-T, para. 731–734 (1998).

25 See Rome Statute of the International Criminal Court, arte. 7, para. 1(gramo), Julio 17, 1998,
2187 U.N.T.S. 3 (defining “crime against humanity” to include “[r]ape, sexual slavery,

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesEquality

enforced prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity”); arte. 7, para. 1(h) (recognizing persecution
based on gender as a “crime against humanity”); arte. 8, para. 2(b)(xxii) (defining “war
crimes” perpetrated during international armed conflicts to include “rape, sexual slav-
ery, enforced prostitution, forced pregnancy, as defined in article 7, párrafo 2(F),
enforced sterilization, or any other form of sexual violence also constituting a grave
breach of the Geneva Conventions”); arte. 8, para. 2(mi)(vi) (extending definition to en-
compass non-international armed conflicts); Y arte. 6(b) (defining “genocide” to in-
clude “causing serious bodily or mental harm to members of [a] grupo,” which has
been interpreted to apply to sexual atrocities in genocides).

26 Almost all the first cases prosecuted at the ICC include gender crimes in some form. A par-
ticularly useful example can be found in the prosecutor’s opening statement in Lubanga,
gendering the claim for violating the prohibition on child soldiers. See the prosecutor’s
opening statement in Case of the Prosecutor v. Thomas Lubanga Dyilo, CPI-01/04-01/06
(Enero 26, 2009), 8–9, https://www.icc-cpi.int/NR/rdonlyres/89E8515B-DD8F-4251
-AB08-6B60CB76017F/279630/ICCOTPSTLMO20090126ENG2.pdf.

27 See Brottsbalken [BrB] (Criminal Code) 6:1 (Suecia); and Max Waltman, “The Politics
of Legal Challenges to Pornography: Canada, Suecia, and the United States” (Doctor.
diss., University of Stockholm, 2014), 277–286, 294–298 (recounting sex equality di-
mensions surrounding the passage of Swedish law against prostitution).

28 Jordan v. Estado, 2002 (6) SA 642 (CC) at para. 69 (South Africa).
29 United Nations General Assembly, Protocol to Prevent, Suppress and Punish Traffick-
ing in Persons, Especially Women and Children, Supplementing the United Nations
Convention against Transnational Organized Crime, arte. 3(a), G.A. Res. 55/25, UN Doc.
A/55/383 (Noviembre 15, 2000).

30 See United Nations Secretary-General, In-Depth Study on All Forms of Violence against Wom-
en, UN Doc. A/61/122/Add. 1 (Julio 6, 2006); Committee on the Elimination of Discrim-
ination against Women, General Recommendation No. 30 on Women in Conflict Pre-
vention, Conflict and Post-Conflict Situations, UN Doc. CEDAW/C/GC/30 (Noviembre 1,
2013); and United Nations Security Council, Resolution 2122, UN Doc. S/RES/2122 (Oc-
tober 18, 2013).

31 For further discussion of some animating notions of a substantive Equal Rights Amend-
mento, see Catharine A. MacKinnon, “Toward a Renewed Equal Rights Amendment:
Now More Than Ever,” Harvard Journal of Law & Gender 37 (2014): 569–579, collected in
MacKinnon, Butterfly Politics, 295–304; and Catharine A. MacKinnon and Kimberlé W.
Crenshaw, “Reconstituting the Future: The Equality Amendment,” Yale Law Journal
Forum 129 (2019).

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149 (1) Winter 2020Catharine A. MacKinnon
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