Whiteness and anti-discrimination law - it's in the design

Although anti-discrimination laws have supported much social change, they have been subjected to sustained critique by legal scholars. A significant concern is that the formal ‘same treatment’ standard promoted by the design of anti-discrimination law is inherently problematic (Graycar & Morgan 2004) because it gives ‘apparent legitimacy to outcomes which … in effect embed inequality’ (Kerruish & Purdy 1998: 150). In this article, I critique the laws’ standard of formal equality, first to demonstrate the capacity of its ‘neutral’ response to reproduce and stabilise dominant privilege. Next, using the Anti- Discrimination Act 1977 (NSW) as an example, I argue that the Act’s ‘raceneutral’ and ‘colour-blind’ practice of formal equality holds capacity to stabilise and reproduce whiteness. I then argue that substantive equality— advocated by most legal critics as promoting ‘better’ forms of equality— also holds the capacity to reiterate whiteness as it can be defined through terms and conditions ‘designed for and skewed’ in favour of ‘the white majority’ (Davies 2008: 317). I conclude that this holds great implications for legal scholarship that remains selectively ‘colour-blind’ to the significance of racial ‘difference’, and call on mainstream legal scholars to open spaces to interrogate the implications of our raced position as whites (Moreton-Robinson 2007: 85).