Paradoxos do direito à igualdade: discriminação, diferença e identidade sob uma perspectiva crítica

Abstract

The goal of this article is to explore the paradoxes of the right to equality by contextualizing, deepening, and problematizing the effects of its use to fight subordination and to promote inclusion. In general, the article argues that the right to equality, if employed in an uncritical and decontextualized way, can generate multiple adverse effects, harming even those it intends to contemplate. To this end, it discusses the distinction between formal and material equality and the criteria traditionally used to justify unequal treatment under the law and argues that they are insufficient to deal with equality dilemmas. The relationship between equality and difference is explored, discussing how the construction of difference, on the pretext of making experiences of subordination visible and enabling the recognition of rights, runs the risk of strengthening and reproducing stereotypes and hierarchies. The article analyzes how the simplifications necessary for the construction of identities can also limit the possibilities of identification and create hierarchization and invisibilization of experiences within a subordinated group. It discusses how inclusionary measures such as affirmative action and the right to reasonable accommodation can lead to assimilation and conservatism. Finally, it examines how the emphasis on difference can lead to fragmentation that has the effect of, on the one hand, ignoring negative impacts of certain demands, and, on the other, preventing the construction of a broader and more solidaristic approach to subalternities. The article concludes that even if these equality ambiguities cannot be fully overcome, they must be taken into consideration in the construction of a legal framework that intends to promote the rights of socially discriminated persons and groups. Finally, it proposes a critical, contingent, and contextualized approach to equality able to offer a more comprehensive, articulated, and transformative horizon of change.