MacKinnon discussess the sameness/difference theory of sex equality, its dominance in shaping sex discrimination law and policy, and its flaws (discussed below).  The sameness/difference theory is used to frame women’s rights under the law in terms of their sameness to men (e.g. deserving equal pay) or their difference from men (e.g. right of maternity leave).  This theory has a built in paradox, a “philosophical double standard” in that the theory calls for women’s equal treatment based on being the same while requesting special rights due to biological difference.

MacKinnon notes this is a particular and a political approach.  It is problematic because both sameness and difference use men as the referent category.  Reifying women’s realities into difference or sameness vis-à-vis men is an insult to women’s possibilities.  Further, equality measures rooted in sameness/difference often helps men more than women (e.g. father’s increased custody rights).  Also, it makes it difficult for women to argue for special treatment under the law when the underlying premise is equal treatment.  Framed using this theory, demands for equality will always appear as wanting it both ways.

Finally, structural forces and social inequalities are not considered in this approach.  The channeling of women into sex segregated jobs with lower wages is considered sex difference in the workplace, not a result of structural sex discrimination.  This is true particularly because there are no men as a reference category; thus, discrimination cannot be argued.  Another example is that the law does not allow recognition that women raise kids or else it gives them preferential treatment based on gender.  MacKinnon uses these examples to highlight the failings of the sameness/difference doctrine, and that the difference approach misses the fact that hierarchy of power produces differences, that is, inequalities.  The more unequal a society, the less likely the difference approach can do anything about it.

MacKinnon’s alternative approach, known as the dominance approach, highlights that the equality question is one of the distribution of power.  This approach does not allow abuses of women, based on their gender (e.g. rape), to be “silenced out” of the difference definition of sex equality.  Sex inequality is an outcome of systemic dominance.  Rational/irrational differentiations or classifications determined by courts don’t matter when power inequalities are recognized as the foundation of social inequalities.  This must be recognized when framing laws and policies.