This paper analyzes the use of dignity in the formation of tests for gender equality in the constitutional jurisprudence of Canada and South Africa. Recent gender equality cases in both countries are reviewed and considered in light of various critiques of the notion that dignity is a concept capable of underlying equality and determining instances of discrimination. A comparison between Canadian and South African commentators reveals many of the same concerns about a dignity-centered test for equality, concerns which often transcend national boundaries apply with equal force to gender equality cases in the other jurisdiction. While courts in both countries have expressed a preference for a substantive as opposed to formal approach to equality, and have focused on dignity in order to avoid entrenching pre-existing disadvantage through uniform treatment, it is argued that too great a focus on dignity has itself obscured considerations of group disadvantage and contributed to the very formalism dignity was supposed to overcome. Equating discrimination with violations of dignity has not furthered women’s rights in either country, and has instead gone some way towards undermining them, suggesting that courts in Canada and South Africa should move away from dignity in formulating and applying a test for equality.
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Andrew Foster, "The Role of Dignity in Canadian and South African Gender Equality Jurisprudence" (2008) 17 Dal J Leg Stud 73.