Such a shift would entail overcoming standards of discrimination based on a comparison between unencumbered individuals, without their situated agency being considered—which results in comparing even when such comparison is impracticable—in order to embrace a contextual analysis of individual cases.
The move from one pattern to the other implies assimilating the structural bases of discrimination, as well as the relevance of gender analysis for overcoming inequality. I will focus on the two main aspects of her analysis: the comparator and stereotypes. Onkraj diskriminacije. Prehod od enega vzorca k drugemu pomeni usvojitev strukturnih temeljev diskriminacije, pa tudi relevantnost analize spola za premagovanje neenakosti.
Since the s, women have increasingly manifested an array of concerns regarding their private and public life: their sexuality, reproduction, family responsibilities, violence in intimate relations, their struggle to access the labour market, sexual harassment, democratic and political underrepresentation, and their lack of full citizenship. Consequently, the law has had to be reformulated to offer identical statements for both men and women.
In other words, formal equality needed to be achieved to overcome discrimination. This view of the universal interests to be protected by human rights has resulted in neutral legal rules and procedures, which equate being equal with being identical in terms of the normative positions historically recognized by the legal system.
This distortion first led to formal equality for women, i. Women were then granted civil, political and social rights. It then started to become apparent that what was being demanded was not formal equality, but rather substantive equality, and that such demands required new legal forms, tools and procedures. Suzanne Goldberg describes the success of the comparator methodology in legal analysis and the judiciary in terms of the good reputation of individual facts—better than that of social data and analysis—for ensuring truth, or as the acceptance of equating empirical proof with objective standards.
