Justice in the Courts or Justice at Its Core? Substantive Equality and the Myth of Neutral Justice
Introduction
The Fourteenth Amendment’s Equal Protection Clause asserts the fundamental promise of equality within the United States, providing that no State “shall … deny to any person within its jurisdiction the equal protection of the laws [1].” However, legal scholars and activists continually debate the limits of the so-called “equality” prescribed in American law. U.S. law operates based on formal equality, which asserts that everyone must be treated equally under the law, regardless of one's group membership or the situation of that group within society [2]. While this may seem fair on the surface, there is a substantial difference between equality and equity. While equality provides everyone with the same resources and opportunities, equity takes into account differing abilities and circumstances, adjusting rules or resources to account for these, thereby giving everyone the opportunity to achieve comparable outcomes. For example, a statehouse that requires in-person applications for welfare benefits treats everyone equally; anyone who needs these benefits is able to come in and apply. However, this raises serious concerns. Individuals with disabilities or mobility impairments face significant barriers in actually getting to the courthouse, despite often being the individuals who need these benefits the most. An equitable approach would therefore offer multiple application channels, such as mail-in or online forms, which allow everyone to have equitable access to these benefits, despite potential barriers. When so-called neutrality in “equal treatment” is applied to issues that have systemic implications, equal treatment of all does not result in justice.
Feminist legal scholar Catherine MacKinnon has been a primary leader in the development and articulation of a different, and potentially more equitable, means of equality. Substantive equality, as MacKinnon articulates, is a more genuine model of equality, as it responds to power structures, in contrast to the formal equality model, which emphasizes “sameness” in treatment [3]. Substantive equality seeks to correct structural inequalities that marginalize individuals, rather than ignoring them; we then ask not whether individuals must be treated the same, but how our existing legal system reproduces systems of inequality and oppression. While the model of substantive equality can be applied to all sectors of marginalization, for the sake of specificity, this article will focus specifically on gender rights.[^1] By applying MacKinnon's critical legal lens to U.S. gender rights cases over the last fifty years, it becomes clear that a system of formal equality has not motivated sex equality in the way it promises. Through an analysis of U.S. legal decisions, as well as a comparison of U.S. formal equality doctrine with Canadian substantive-equality jurisprudence, I will demonstrate how the implementation of a substantive system positively influences the development of gender rights in a different, but more effective manner. To achieve meaningful gender justice, U.S. jurisprudence must move beyond formal equality and adopt a substantive approach that accounts for systemic, historical, and structural inequalities.
Defining Formal Versus Substantive Equality
Before assessing the application of substantive versus formal equality in American jurisprudence, it is essential to understand the two concepts more deeply. Formal equality, often referred to as “procedural” equality, operates under the principle that the law should treat everyone equally, regardless of social group or identity [4]. In practice, this often results in gender-blind laws, which in principle create an equal world, but in reality ignore differences, especially regarding sex, that marginalize and relegate women. As MacKinnon argues, U.S. formal equality is inherently harmful to the progression of gender rights, as American jurisprudence has long been modeled on perspectives, assumptions, and standards that prioritize men. As such, this model of jurisprudence thereby formalizes the treatment of women within a male-centered model. Most fundamental to MacKinnon’s argument is that when women are judged by a male standard, equality is determined by their “sameness” to men, while sex discrimination is considered in its “difference.” However, both are judged in proximity to a male standard.
In this way, within the model of formal equality, “gender-neutrality is thus simply the male standard,” and jurisprudence is created through and upholds male dominance [5]. In contrast, a model of substantive equality responds to historical and structural marginalization, focusing on the differences in experiences between individuals, seeking to correct them. It not only examines the legal issue at hand and how the law can rectify it, but also considers societal contexts that may have contributed to this specific issue, pursuing outcomes that correct structural inequality [6]. For example, under a substantive model, an act of domestic violence against a woman is not simply an individual attack, but instead a part of a larger system of systemic abuse, in which women are overwhelmingly affected. On the other hand, formal laws treat acts of domestic violence equally across genders, thereby not recognizing their systemic harm towards women. Thus, under a substantive equality model, specific safeguards would be implemented to protect survivors from retraumatization and address systemic patterns that enable gender based violence, which predominantly affect women. These include specialized training for law‑enforcement officers on gendered patterns of abuse to reduce the risk of retraumatization, or survivor‑centered prosecution guidelines to ensure that responses not only punish wrongdoing but also interrupt the cycle of systemic harm. By adopting these safeguards, the law moves beyond simply declaring “justice is neutral” and instead works to dismantle the gendered hierarchies that formal equality maintains. While the current U.S. legal system may proclaim justice as neutral under formal equality, in doing so, it reinforces gendered hierarchies that prioritize the experiences of men while ignoring the historical and continuous subjugation of women.
How the U.S. Legal System Upholds Formal Equality
Under U.S. jurisprudence, formal equality models have historically thwarted the expansion of gender equality despite ostensibly attempting to remedy systems of oppression. The U.S. Constitution, under the 14th Amendment Equal Protection Clause, prohibits states from denying any person “life, liberty, or property without due process,” and provides for equal protection under the law [7]. While the Due Process Clause has opened doors for women, allowing them to enter educational institutions and workplaces that were once off‑limits, it has done so by extending rights defined initially for men. As a result, these rights remain modeled on male experiences and continue to reflect a male‑centered perspective.
For example, under criminal abortion restrictions, people who can become pregnant can be forced to carry a pregnancy to term, even if they lack the emotional or physical capacity to do so, highlighting how formal equality’s male‑centered framework ignores uniquely female harms. Furthermore, what equality means under this doctrine is left up to the court's discretion; the lack of concrete criteria often privileges long-standing male-normative interpretations, leading to the uneven application of rights and impeding the advancement of gender equality. Any doctrine of equality that fails to acknowledge systemic impediments remains ineffective, as it does not consider how laws with equal application may have unequal outcomes, nor how these laws have been authored with an inherent male perspective. Because women lacked authorship in lawmaking until the early 20th century, most statutes do not adequately consider the role of women, nor do they accurately account for female perspectives. How are we to model constitutional notions of equality based on laws that were not written with an equal perspective? How can these be trusted to uphold women's autonomy when women's autonomy was in question when they were written? With interpretations of the 14th Amendment left so subjective, the historically exclusively male, and now primarily male, Supreme Court is left to interpret laws predicated on male-centric positions, leaving women with a version of equality that is not one-size-fits-all. However, under a substantive system, the 14th Amendment has the potential to become not just a pillar and producer of equality, but of equity, recognizing how entrenched inequalities produce systemic patterns that disproportionately affect women. It then provides a means to dismantle these inequalities by emphasizing outcomes over simply uniform application and by interpreting laws through an intersectional lens.
Formalist logic has been further ingrained as an obstacle to gender equality through Washington v. Davis (1976), which entrenched intent as a necessary characteristic of prosecutable discrimination [8]. Discriminatory intent requirements hinder the advancement of women by causing courts to ignore systemic impact. In many instances, women are not deliberately disadvantaged, but are, instead, restricted by systemic inequities that set them up to fail in comparison to men. This ruling then struggles to address real-world inequalities when unequal outcomes do not stem from overt intent, but rather from entrenched norms and systemic inequalities. For instance, in hiring practices, workplaces may penalize gaps in employment history, which are not uncommon among women, as caregiving responsibilities often fall primarily upon them. This practice disadvantages female applicants without any intentional prejudice. Under our current model of formal equality, these systems are unlikely to be addressed, as long as women and men are being equally penalized for employment gaps. However, a substantive model recognizes that these gaps disproportionately affect women because societal norms encourage female domesticity. Consequently, it supports measures such as caregiving leave protections and revised employer evaluation criteria to promote greater equity. Substantive equality is often wrongfully criticized as disproportionately benefiting women and, therefore, subjugating men. However, this perspective misunderstands the purpose and function of a substantive equality model. Rather than favoring one group over another, substantive equality seeks to correct systemic inequalities and structural disadvantages that distort equal opportunity. By focusing on outcomes rather than mere formal equality, this model more accurately reflects how discrimination operates in practice, making it a more effective framework for achieving genuine gender equality.
Formalist equality also inherently limits women's advancement, potentially leading to the backsliding of rights, as seen in United States v. Morrison (2000). In this landmark case, the Court struck down sections within the Violence Against Women Act (VAWA) under a formalist federalism framework [9]. In the majority opinion against Congress, the Court held that Congress had exceeded its authority under the Commerce Clause and Section 5 of the 14th Amendment by allowing a federal civil remedy for females who had been subject to gender-motivated violence. The court ruled that gender-motivated violence is not economic activity and, therefore, Congress may not regulate it under the commerce clause. They also held that this civil remedy targeted private individuals and thus fell outside of Congress's Section 5 powers. The argument emphasizes the distinction between national and local authority, highlighting the individual nature of these harms as the state's responsibility, not the federal government's. The dissent, authored by Justice Souter and joined by three others, including the late Justice Ginsburg, argued against this formalist approach, adopting a model that evaluates systemic harm. The dissent asserted that congress does have data to prove that rape and battery are a fundimental issue of gender rights, with lines of evidence showing that women will be overwhelming victims of such crimes, and that such crimes are rarely punished. In the dissent, the economic repercussions of harms caused by domestic violence and sexual assault were cited to be in the billions (5-10 billion in 1993, updated in a 2018 study, finding that the federal government spends an estimated $55 billion annually on dealing with the effects of childhood exposure to domestic violence) [10]. The conclusion of these calculations is then that “[g]ender-based violence bars its most likely targets–women–from full participation] in the national economy [11],” through healthcare costs, lost productivity, and reduced travel.
Morrison is a powerful example of how formal notions of equality can block remedies for systemic harm when gender-violence is treated as private harm, not systemic inequality. Despite the dissent's compelling point, the Court ruled in favor of Morrison, leading to a removal of these federal civil remedies, limiting avenues for survivor justice, an area where women are already targeted specifically. Within a substantive system, the national concern of gender-based violence may have been recognized as a systemic and substantial economic cost, thereby making it a federal issue. Even if gendered-violence isn’t financial in form, its effects create gender-based economic subordination, something that Congress can and should have been able to address. Instead, based on formal structures, this disregard of a pervasive and systemic problem even further entrenches women's inequalities.
Substantive Equality in the U.S.
Perhaps the closest the U.S. has come to endorsing a substantive model was United States v. Virginia (1996), in which the Court nearly ruled with a model of substantive equality, acknowledging that women had been systematically excluded from the Virginia Military Institute (VMI) [12]. In U.S. v. Virginia, Justice Ginsburg applied substantive justice even under intermediate scrutiny. She explained that Virginia’s proposed remedy—maintaining VMI as an all-male college and creating VWIL as a separate program for women— “does not cure the constitutional violation” [13]. The Court found that VMI did not produce equal programming for men and women, with the female programs lacking in preparation and opportunities presented after graduation. Virginia, therefore, focused on “means and not ends” and relied on “fixed notions concerning the roles and abilities of males and females” to produce these results [14]. VMI shows substantive reasoning in practice. To understand why these principles matter more broadly, consider that a model of substantive equality would then operationalize this, focusing further on the results that so-called “equal” programming produces. This ensures that systems are set up to understand and respond to the nuances that histories of gender discrimination have produced. In practice, a comprehensive model of substantive justice entails applying this logic throughout our legal system, fundamentally redefining the concept of “equal protection” and ensuring that women are not regulated through models of male domination.
Substantive Equality Application Outside of the U.S.
The United States justice system’s commitment to formal equality limits many avenues for justice. In contrast, governments such as Canada have effectively addressed these historical and systemic inequalities by adopting models of substantive justice. Section 15 of the Canadian Charter of Rights and Freedoms has been fundamental in this application, with subsection 15(2) allowing for affirmative action programs that aim to help disadvantaged minority groups [15]. On the other hand, the U.S. equal‐protection doctrine lacks any affirmative remedy clause. While the Canadian Charter’s language is remarkably similar to that of the 14th Amendment, the Supreme Court of Canada has explicitly acknowledged through its case decisions that identical treatment may exacerbate inequalities; the Court has instead embraced a substantive framework.
This shift is notably articulated in Andrews v. Law Society of British Columbia (1989), as the Canadian Supreme Court rejected the previous formal approach that treated similarly situated individuals uniformly. They instead ruled that a law should be evaluated based on whether it reinforces social disadvantage based on protected characteristics, and whether treating all individuals the same may cause differently situated individuals to face unfair burdens under the law [16]. The Court has also acknowledged that pregnancy discrimination is sex discrimination, explicitly overturning earlier formalist reasoning through Brooks v. Canada Safeway Ltd. (1989). The Court recognized that, as pregnancy is a condition affecting only biological females, without proper legal protection, women could be unfairly punished both socially and economically through pregnancy. “Imposing a disproportionate burden on women” is therefore substantively discriminatory [17]. The effects of substantive equality are apparent; while the U.S. ranks 53rd in gender equality, Canada ranks 19th. The U.S. also falls into the bottom half of the global league table for gender equality in the political sphere, while Canada ranks over twice as high [18]. While substantive equality is unlikely to be the sole and complete cause of these discrepancies, it is likely to play a significant role in contributing to them.
Adopting a model similar to Canada’s could inform U.S. legal practice, as its understanding of equity could remedy some of the entrenched inequalities women face in the U.S. While critics may argue that Canada and the U.S. are not comparable legal systems and therefore cannot implement the same processes, this only reflects a necessity of change within the U.S. legal structure. Canadian courts are more comfortable with context-sensitive thinking than their U.S. counterparts, as established by Andrews, leaving room for the courts to explore social facts and discern the impact of laws on marginalized populations. While adopting a substantive model similar to Canada's would undoubtedly require the U.S. to become more comfortable with this type of thinking, weighing social and empirical effects, this is not entirely unfamiliar to U.S. judges. Judges already engage in this very same balancing in smaller ways, especially in First Amendment and abortion cases. Substantive equality doesn’t mean judicial encroachment; it is simply a recognition that neutrality serves as an avenue for continued oppression, and courts must therefore take effect into consideration, not just intention.
Critics also argue that due to the decentralization of the U.S. in comparison to Canada, Canada's Charter model would be an unsuitable comparison. However, the U.S. has a long history of federal civil rights legislation, such as the Civil Rights Act, the ADA, and the Fair Housing Act, all of which are constitutional. When civil rights issues are pushed out of federal jurisdiction, local control can often mean oppression or, at the very least, oversight. While American federalism creates complexity, this does not mean it should prevent federal courts from interpreting the Equal Protection Clause in a manner that achieves substantive equality.
The Future of Formal vs. Substantive Equality
The need for substantive equality is only growing more urgent. Recent landmark Supreme Court cases, as well as decisions by the executive and legislative branches, exemplify both the U.S.’s entrenchment in models of formal equality, and the necessity of a substantive system. Supreme Court trends under the Roberts Court, specifically Dobbs v. Jackson Women’s Health (2022), have operated stringently off of formal equality, ignoring the gendered impact of forced birth, and therefore marginalizing women [19]. This case explicitly rejected any sex equality basis for abortion rights, with the majority deciding that “a State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications [20].” Abortion is therefore held to the same standard of review as other health and safety measures, based on the precedent of Geduldig v. Aiello (1974), which infamously held that pregnancy classifications are not necessarily sex classifications, instead distinguishing between pregnant and “non-pregnant persons” rather than male and female [21]. While Congress overrode this logic in passing the Pregnancy Discrimination Act of 1978, it only applies within the employment context, leaving much of the law open [22]. By this definition, banning abortion is not discriminatory against women, since theoretically all pregnant people are being treated equally, even though only females are members of this population. The dissent attacked this, articulating that denying control over reproduction to women diminishes their “status as free and equal citizens [23].”
The Dobbs v. Jackson Women’s Health (2022) decision can thus be seen as a stark example of how formal, male‑centered notions of equality harm women’s livelihoods. With no constitutional mandate of sex equality defined, the Court's gender equity jurisprudence has been left as simply a function of its interpretations. This has become increasingly true under the Roberts court, as interpretations, such as the rationale behind the Students for Fair Admissions v. President and Fellows of Harvard College ruling, have shown an increasing formalism [24]. The gender composition of the Court and male-majority bench also plays a role in the continued interpretation of “equality” through formalist, male-centered lenses, accentuating MacKinnon's point that neutral law is not neutral—it reflects dominant norms.
Actions taken by the legislative branch also demonstrate a focus on the formal equality model, as evidenced by the recent passage of the SAVE Act (H.R. 22) by the House of Representatives [25]. This act, if passed through the Senate, would require individuals to provide two forms of documented proof of U.S. citizenship when registering to vote in federal elections. While ostensibly equal, this law puts an undue burden on married individuals who have taken the last name of their partner (primarily women), as well as trans individuals, as these two groups are less likely to hold two forms of updated and identical identification. Under a substantive model, this undue burden would be addressed and corrected, rather than further marginalizing already disenfranchised individuals.
While our model of formal equality examines gender issues through intermediate scrutiny, a substantive model would require heightened scrutiny, whether explicitly labeled as such or not. While this may not be a formal change, substantive equality would wholly alter the way judges analyze cases brought before them. Substantive equality is fundamentally about rejecting laws or policies that perpetuate systemic disadvantage. For gender, this implies a far more critical approach to any law that, in effect, subjugates or excludes women. Substantive equality would then lead courts to examine the real-world impact of legislation on women and men, rather than being distracted by whether a law provides for differential treatment based on sex. While this certainly has a place in the pursuit of equality, a model of substantive equality asks us to take this further and explore what more we can do to achieve absolute equality.
Conclusion
U.S. equality law will continue to fail women until it shifts from a model of sameness to one of substantive justice. While MacKinnon and other feminist scholars have been calling on this transition for decades, in a post-Dobbs, formalist era, with an executive power that continuously undermines female voices, substantive justice is more important than ever. Courts must recognize structural power imbalances and adopt protections similar to those outlined in the Canadian Charter to prioritize female experiences and promote genuine gender equality, reinterpreting the Equal Protection Clause not as a mandate for identical treatment, but as a commitment to equitable outcomes. Legal scholars and advocates must push for legal models that abandon the guise of neutrality in favor of equitable justice, which remedies structural power imbalances and considers gendered perspectives and realities. True equality only exists when equitable outcomes and inclusive opportunities are afforded. Under the current U.S. model, entrenched discrimination remains unaddressed, and thus, until U.S. courts can abandon the myth of neutrality, the male standard persists as the human standard.
Bibliography:
[1] Fourteenth Amendment, Fourteenth Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress.
[2] What is equality in the law?, What is equality in the law?.
[3] Catharine MacKinnon, Substantive Equality: A Perspective, Substantive Equality: A Perspective - Catharine A. MacKinnon.
[4] Substantive Equality and Procedural Justice | Iowa Law Review - The University of Iowa, Substantive Equality and Procedural Justice | Iowa Law Review (last visited Apr 24, 2025).
[5] Catharine MacKinnon, Difference and Dominance: On Sex Discrimination, Difference and Dominance: On Sex Discrimination.
[6] Substantive gender equality | European Institute for Gender Equality, substantive gender equality (last visited Apr 24, 2025).
[7] Fourteenth Amendment, https://constitution.congress.gov/constitution/amendment-14/.
[8] Washington v. Davis, Oyez, Washington v. Davis | Oyez (last visited Apr 24, 2025).
[9] United States v. Morrison, Oyez, United States v. Morrison | Oyez (last visited Apr 24, 2025).
[10] Exposure to domestic violence costs US government $55 billion each year, ScienceDaily, Exposure to domestic violence costs US government $55 billion each year | ScienceDaily (last visited Apr 24, 2025).
[11] Souter, United States v. Morrison (Souter, J., Dissenting) U.S. (U.S. Supreme Court 2000), UNITED STATES v. MORRISON (last visited Apr 24, 2025).
[12] United States v. Virginia, Oyez, United States v. Virginia | Oyez (last visited Apr 24, 2025).
[13] United States v. Virginia, 518 U.S. 515 (1996), Justia Law, United States v. Virginia | 518 U.S. 515 (1996) | Justia U.S. Supreme Court Center (last visited Apr 24, 2025).
[14] Ibid.
[15] Department of Justice Government of Canada, Charterpedia - Section 15 – Equality Rights, (1999), Charterpedia - Section 15 – Equality rights (last visited Apr 24, 2025).
[16] Andrews v. Law Society of British Columbia - SCC Cases, Andrews v. Law Society of British Columbia - SCC Cases (last visited Apr 24, 2025).
[17] Brooks v. Canada Safeway Ltd. - SCC Cases, Brooks v. Canada Safeway Ltd. - SCC Cases (last visited Apr 24, 2025).
[18] 100 years on, politics is where the U.S. lags the most on gender equality, Brookings, 100 years on, politics is where the U.S. lags the most on gender equality (last visited Apr 24, 2025).
[19] Dobbs v. Jackson Women's Health Organization, Oyez, Dobbs v. Jackson Women's Health Organization | Oyez (last visited Apr 24, 2025).
[20] Ibid.
[21] Geduldig v. Aiello, Oyez, Geduldig v. Aiello | Oyez (last visited Apr 24, 2025).
[22] Pregnancy Discrimination Act of 1978, US EEOC, Pregnancy Discrimination Act of 1978 | U.S. Equal Employment Opportunity Commission (last visited Apr 24, 2025).
[23] Dobbs v. Jackson Women's Health Organization, Oyez, Dobbs v. Jackson Women's Health Organization | Oyez (last visited Apr 24, 2025).
[24] Students for Fair Admissions v. President and Fellows of Harvard College, Oyez, Students for Fair Admissions v. President and Fellows of Harvard College | Oyez (last visited Apr 24, 2025).
[25] H.R.22 - 119th Congress (2025-2026): SAVE Act, H.R.22, 119th Cong. (2025), H.R.22 - 119th Congress (2025-2026): SAVE Act.