Document Type

Article

Publication Title

California Law Review

Abstract

Professor Post does a thoroughly convincing job of showing how unhelpful the picture of equality as sameness has been. He urges on us an approach in which, rather than pretending that difference does not exist, we take on, in part through legal action, the social reshaping of identities. The cases he explores center on gender, though he makes important observations along the way about race; but the conclusion he wants to draw applies to both of them, and to other forms of identity, such as sexual orientation and disability as well. He wants us to think of the project of antidiscrimination in all of these cases as one of re-shaping identities rather than ignoring them. But he does not say very much-and he says nothing directly and explicitly-about what norms should guide this reshaping. So I shall try, in the next Part, to sketch in some features of a more direct and explicit account. I do not propose a general account of the ways in which it is appropriate to seek to reshape identities. But I want to say enough to connect the question of antidiscrimination with some central liberal ideas-in particular, in Part II, with autonomy, dignity, and individuality. Against this background, in Part III, I will then take up the issue of "stereotypes." Here I shall be more explicitly critical than Professor Post is of current judicial fagons de parler: for I think the way this word is used conflates a number of distinct issues. In Part IV, I make some concluding observations about why affirmative action, in the form of racial or gender preferences, need not be inconsistent with antidiscrimination properly construed- that is, as Professor Post and (as he points out) Justice Brennan in Weber both construe it.

First Page

41

DOI

https://doi.org/10.15779/Z38TD9K

Volume

88

Publication Date

2000

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