Davina Cooper’s “Everyday Utopias: The Conceptual Life of Promising Spaces” considers the contribution that “everyday utopias” – networks and spaces that perform regular daily life in a radically different fashion – make to transformative politics. They do this by demonstrating the viability of alternatives to dominant social structures: there is no clearer way to challenge basic presumptions of how things should work than by successfully showcasing alternatives.

In a previous post, Dr. Cooper has discussed the advantages of such an approach through the sphere of equality rights for nudists. In particular, it forces us to consider the practical implications of provision for equality. She cites the example of urban spaces, designed for clothed individuals – dirty benches, tarmac roads and narrow pavements implicitly accommodate clothed, rather than naked, activity. Thus, thinking about equality in this more practical way allows us to abandon our attachment to the dominant social norm.

That this approach to considering equality is beneficial can be seen in the sphere of disability discrimination. An example is the conceptual shift in thinking about the causes of such discrimination. Certain statutory material adopts the “medical” definition of disability, which attributes the difficulty which a disabled individual may have in everyday life to that disability. For instance, Section 6 of the UK Equality Act 2010 states that a person is defined as having a disability if he or she has a physical or mental impairment, and that impairment has an adverse effect on day-to-day activities. Contrast this with the “social” definition of disability, which holds that an individual’s everyday difficulties stem not from the impairment itself, but from the fact that the world around them has been constructed for the able-bodied majority. Article 1 of the UN Convention on the Rights of Persons with Disabilities adopts this definition. It states that people with disabilities include those whose impairments, “in interaction with various barriers,” may hinder their effective participation in society. An individual in a wheelchair isn’t disadvantaged because of her wheelchair. She’s disadvantaged because, catering for the non-wheelchair-bound majority, steps rather than ramps are the preferred method of accessing buildings.

Another point made by Dr. Cooper in “Everyday Utopias” is that equality as a normative principle does not exist in a vacuum, but is instead inextricably linked with other norms. Her example of nudism is again illustrative. She notes that, even where it is permitted, it still operates within the confines of other norms: “organized associational nudism is replete with rules, conventions and etiquette…how to cook, deal with menstrual blood, manage sweat and other personal secretions…” The norm of equality in this example has to compete with other norms of acceptable standards of hygiene, amongst others.

Once this complexity of normative interaction is revealed, we can look at attempts to counter discrimination with a fresh perspective. Consider equal pay for men and women. One argument used to resist equal pay measures is that women will inevitably contribute less to the workforce. For instance, Posner’s argument from 1989 was that “the average woman expects to take more time out of the work force to raise children,” meaning that she will invest less in human capital than her male counterpart. However, employing the broader view advocated above, we see that the hindrance to women’s effective participation in the workforce stems not from them being child-bearers, but from the fact that the norm is for women to take on the role of childcare. The case law in this area is promising in its willingness to look at the influence of such entrenched norms when considering equality provisions. In the case of Markin v Russia, the European Court of Human Rights held that providing maternity leave to servicewomen but not servicemen “ha[d] the effect of perpetuating gender stereotypes and is disadvantageous both to women’s careers and to men’s family life.”

Dr. Cooper’s approach to considering equality law is therefore progressive, and appears to be part of a welcome trend of looking beyond the individual victim of discrimination and to society and its norms. In doing so, we are able to reconsider what, not long ago, were non-negotiables (that women would stay at home and care for children, for instance). It allows us to redefine the limits of equality law, by forcing us to reconsider what truly drives differences in treatment.