Hugh McLachlan: Equality in all things would leave us very unequal

At face value, the intention seems laudable and some of the bill's provisions might be very welcome. However, the rationale behind the proposed legislation is highly dubious. It is muddled and faulty.

The bill would create a new public-sector duty for certain public bodies to consider how they can reduce, not merely the socio-economic inequalities they might produce themselves, but that people happen to be faced with. The current legislation relating to illegal discrimination covers race, gender and disability. The proposed bill would extend this range to include: age, sexual orientation, religion or belief, pregnancy and maternity, and gender reassignment.

According to the equalities minister, Harriet Harman, if it is passed it "will promote equality, fight discrimination in all its forms and introduce transparency in the workplace, which is key to tackling the gender pay gap".

Equality as such is not a virtue. That which is equal to something else in some particular respect will be unequal in some other respect. We cannot use the notion of equality to tell us what particular respects should count.

With regard to the actions of public bodies and their agents, justice requires that individual people who have relevant differences between them are treated differently and that only people who are in relevant respects the same are treated the same.

A judge who gave all who were convicted in his court the same sentence, no matter what they were convicted of, would be an unjust judge. A hospital that gave the same medical treatment to all of its patients would be an unjust hospital.

Discrimination is not always wrong. Indeed, in some circumstances, it would be unjust to fail to discriminate.

To advocate an attack on discrimination "in all its forms" is absurd. It matters how, why and when the discrimination occurs. For instance, if we choose to marry or to have sex only with people of a particular gender, colour, race, religion or age, our discriminatory behaviour is our own business, no matter how distasteful some people might consider it to be. It is not the job of politicians to try to combat it.

Despite what she says, Harriet Harman has no intention of fighting all forms of discrimination. Consider, for instance, discrimination on the basis of age. The bill would not prohibit the provision of free transport on buses for those who are 60 years of age or older.

So the Equality Bill 2009 – what is it about? (Easy Read version] it says: "Equality means giving everyone the same chances no matter how different they are. It also means sometimes giving some people extra help."

This is Orwellian doublethink. To treat people equally in some respect means to treat them the same in that respect. It is not necessarily the same as treating people fairly or justly. To give some people extra help is sometimes justifiable, but it means treating people unequally in some respect.

Equality does not relate particularly to giving people chances. People should be given different chances if there are relevant differences between them.

Talk of "chances" is ambiguous. There is a confusion in the thinking behind the bill between the notions of opportunity and probability. For instance, in Scotland, more men than women go to jail. The probability that a man will go to jail is higher than the probability that a woman will do so. It does not follow that men and women have an unequal "opportunity" of landing in jail.

More men than women have highly paid jobs. It does not follow that men and women have unequal opportunities of having highly paid jobs, even if they have different probabilities of doing so. Opportunities, for whatever reasons, are not always taken.

After all, even if we would all like to have more money than we get for the job that we do, it does not follow that we would all equally like to have a higher-paid job than we actually have.

In order to try to produce equal outcomes and equal probabilities between categories of people, we would typically need to try to give different people quite different opportunities. It is far from clear why we would want to do so.

There is a "gender gap" in pay, just as there is, for instance, a "gender gap" in life expectancy and in prison incarceration. Would it be better were there gender equality in such matters? Not necessarily.

Social equality as such is not a tenable goal. Such gaps are not in themselves unjust. They are not necessarily the result of injustices.

For instance, if women in Scotland were to commit fewer crimes than they do, or if they were on average to live longer than they do at present, that would seem to be in itself an obvious cause for celebration. That there would be a consequent increase in gender gaps is an irrelevance.

Given that men and women tend to do different sorts of jobs, and when they do the same jobs men tend to be higher placed, we would not expect that, on average, men and women will get the same pay.

A reduction in the pay gap need not be fairer or more just. If women were paid more than men for doing the same job, the pay gap might disappear. Would this be desirable? If so, why?

If a sufficient number of highly paid women were to be paid more and a sufficient number of lowly paid men were to be paid less, the gender pay gap could be eliminated or significantly reduced. It is not clear why such an outcome should be considered to be desirable, nor that such a means to attain it would be just or justified.

It is morally desirable that we strive to remove arbitrary obstacles to the aspirations and attainments of individual people, whether or not the people or obstacles are of the sorts that are specifically mentioned in the Equality Bill.

However, it is far from clear that we should advocate equal opportunities or equal probabilities of outcome. We should be given just treatment and just opportunities. If that leads to outcomes that are in some respects socially unequal, we should, perhaps, accept them.

Hugh McLachlan is professor of applied philosophy at the School of Law and Social Sciences, Glasgow Caledonian University.