Women's Equality Before and After the Charter

Women's (In)Equality before and after the Charter

• Equality, seen as a goal and strategy for women, is an amorphous concept that's slippery, uncertain, flexible, dynamic, comparative, and restrained, rendering it controversial.
• Equality has been a cornerstone of feminist struggles, particularly within the law, but feminists disagree on the focus's appropriateness and effectiveness.
• Even feminists who agree on equality as a goal, disagree on its meaning and how to accomplish it.
• As women, inequality is lived with and internalized in many diverse forms which are experienced individually.
• Many women's inequalities are rooted in multiple sites of oppression such as sex, race, class, sexual identity, disability, and or age, that are shaped through several sites of domination.
• Feminist legal approaches often remain simplistic, prioritizing gender while disregarding other categories, falsely isolating gender as the singular inequality source.
• The tension between gender inequality's complexity and legal approaches' oversimplification raises serious concerns about the commitment to working within the law for equality.
• Systemic inequality is deeply ingrained in societal institutions and ways of thinking, making it challenging to envision a way out.
• Feminists persist in tackling legal battles to reduce inequality and advance equality, despite the inherent risks.
• Power analysis has evolved reducing the perception of arenas of power as formidable.
• Using law in a multifaceted way can ground contemporary feminist legal equality struggles.
• Law provides a powerful forum for struggle, despite the need to approach law and equality with scepticism.

Focus on Section 15 of the Charter

• Legal equality strategies have been simplistic and one-dimensional, focusing on gender while ignoring other categories, which falsely isolates gender as the singular source of inequality for women
• This restrive focus is in how our law and legal systems work
• The complexity of gender inequality as experienced by women vs the complexity of legal approaches raises fundamental questions about commitment to working with law
• This chpater provides context to Section 15 of the Canadian Charter of Rights and Freedoms
• This provision symbolizes feminist legal equality struggles
• Discussions revolve around strategically and critically engaging with law regarding equality issues
• Section 15 addresses equality issues but also leaves a number unaddressed due ot it narrow confines and others that have yet to be thought of

Limitations and Perspective

• Perspective is limited due to time, space and Diana Majury's limited perspective
• She writes from the viewpoint of a white, non-disabled, Christian-raised, middle-class, anglophone lesbian
• Those factors influence recognition and discussion of issues and inequalities
• One problem of equality that, despite its mythic promise of universal application, individual and collective understandings of equality are only ever partial and circumscribed
• Critiques of universality invoke oppressive generalizations that perpetuate dominance which apply to equality
• Promising lies in potential for particularity, uncertainty, openness, and fluidity
• These qualities further the elimination of dominance and subordination, informed by power dynamics and intersecting inequalities

Historical Context of Inequality before the Charter

• Equality has been a key component of liberal political theory centered around individual equality, creating equality of access/opportunity and the right to equal treaty as a cornerstone for liberal democracy
• This equality relies on white, heterosexual, non-disabled, Christian, middle-class males
• That prototype standard members of non-dominate groups supposedly strive to be
• Action is aimed at removing overt barriers and differential treatment so members act to prove themselves equal
• A 'level playing field' dominates liberal equality discourse, assuming everyone wants to play by the prototype's rules
• Members of oppressed groups are expected to prove they're the same as the dominant group
• Qualifying for equal treatment requires demonstrating no substantive differences from the prototype
• This assimilation model has been participated in various degrees by oppressed groups with varying degrees of success
• Liberation's potential is viewed using equality's rubric
• Some groups have resisted the language or rejected theconcept
• Proving themseleves equal is complex due to the less like the prototype, the more apparent the differences and the less willing someone will be to disown the differneces
• Members of multiple difference have had insights into the liberal model of equality

Historical Treatment of Women and the Law

• Western culture views women as inherently different from men on biology, psychology, and culture, so traditional liberal notions of equality did not include women
• Restrictions on them were consistent with liberal philosophy, and in Canada from the 19th-early 20th century, female legal status was inferior
• Women were excluded from the public sphere and could not vote, hold public office, sit on juries, or work in most professions
• Labor was underpaid, and domestic labor was invisibilized
• Married women were subservient by law and unable to control property, enter contracts, or retain nationality/domicile
• Men had authority over children even as women had child care responsibilities
• They were seen as physically inferior, thus requiring care as child-bearers which then ignored minorities being employed with bad conditions + domestic needs
• Rhetoric of protection left them unequal in the labor, sexuality, and security aspects
• In the past century, issues imposed on women are gone
• White women fought for legal personhood which focuses on gaining rights of men
• The equality fight became largely one for inclusion, which is proving women can be as valuable as men
• Formal quality reflects the liberal framework
• Fights for inclusion were largely by women from dominant groups, resulting in the feminist prototype becoming a middle class white woman
• These assumpions are based on make views transposed on feminists as women from oppressed communities were ignored and fighting for equality

Canadian Bill of Rights (1960)

• The Canadian Bill of Rights was passed as a precursor to the Charter, applying to all federal laws to protect rights/freedoms without abridging them; Section 1 provided it
• With an strong pre-existing right to equality, it was circumscribed
• Treatment that this equality guarantee would receive at the hands of the SC was foreshadowed in the committee
• By the 1980s, the SC of C decided < 10 cases involvong this equality section
• Most of them dealt with criminal or quasi-criminal lae, and 2 with sex or race inequality
• The first, R. v. Drybones held the equality guarantee may positively impact oppressed groups
• In Drybones, Justice Ritchie concluded the Bill of Rights rendered inoperative laws conflicting fundamental rights
• The Indian Act's Section 94(b) was found conflictual and inoperative
• Ritchie anticipated his judgment in Lavell & Bedard, and was careful his opinion would not apply to act provisions

Sex Equality Decision

• The first decision made a challenge to to the Indian Act, in which two First Nations women were invovled
• In two separate actions, they argued they conflicted Bill of Rights Section 1
• Section 12 of the Indian Act was what the court upheld as only the basis, under which first nation women lost status with marriage as non-indian man, and those kids also lost native rights
• In a five to four verdict, equality in the eyes of Bill of Rights was not constituted by treating first nation women and men with distinction
• Narrowly defining equality in the law, Justice Ritchie viewed equalty and law enforcement from old rule of law foundations
• Since the Canadian Act structure was for the benefit of the crown in land, Section 12 was paternalistics and a crucial aspect
• The decision written was not to tinker because the act will be recognized
• It dealth with behavior of Indians as opposed to the internal relations for the indian act

Sex Equality Continued and the Advent of Charter

• The second and the only case decided by the SC of C was Bliss v. Attorney-General
• Pregnant women got no unemployment for the period during maternity time, but to qualify for this the women needed ten work weeks insured where are usually it is 8
• Bliss met the usual criteria but the requirement for pregnancy is a disentitlement leading to sex discrimination
• Application of the narrow rule, there is no enforecement of limitation in the administration that does not invovle the law
• The Court distinguished harsh treatment for the difference, falling back on nature and judicial sexism
• A variation that pretended pregnancy was unrelated to gender
• With little understandings of discrimination and inequality it became incomprehensible in history
• Feminists wanted inclusions to not repeat what happened in the bill of rights, so hard fighting was done
• Initial wording that feminists fought for, was expanded on so to avoid the Bill of Rights interpretations
• Section 15 tried to address the decisions in LaVell, Bedard & Bliss by preventing repetitions through an extreme bid
• An extra provision direct towards sex equality was included enacting Section 28
• This previleging was divisive as equality by the strong guarantees were largely white, affluent etc
• Legal routes for change are vigilated with continuously questioned
• Momentum in 1982 was that a charter was about to happen
• This was not a feminist creation by any means, and wrong to blame them

Debates, Equality, and the Andrews Case

• Debates raged, though on any of these levels these are anachronistic, however its something not to ignore and feminists are challenged to turn it more than a world for prototype
• Individualist theory is challenged in order to focus on oppression and their systemic nature
• Equality for many, being a process, the provisions provide one vehicle to make the the Charter arguments
• the landmark decision Andrews vs. Law society in BC the formal equality model began to disintegrate
• They turned to recognizing and recognizing inequality as the starting point and equality as a meaning of analysis
• Similar treatement was not allowed, as US spends large numbers of time on similarly situatied with circumstances
• Gender terms for this required the women to just try to be men
• Andrews involved a British citizen in Canada, both claimants challenged if Candian citienship for admission is equality
• Although Section 15 for discriminate is not included, the Court held that it is
• Non-citizens fell under the type of discreet and insular minority that S.15 was designed for
• Words have evolved into concepts, as that they provide the section with the meaning of the charter and social context

Disadvantage of the Charter Under Andrews and Irrelevant Information

• Test enunciated has disadvantages, as disadvantage denoted inwquality, but as a Patricia Muntone put it, its a YardStick
• Inequalities as disadvantage if its from the perspective, and oppression if its from a dominated perspective
• Masking the discrimination will create a harm, animus, systemic nature, critiques about social prosperity
• These lead to questions reflections of an abstract of the level, questions on equal, the decision offered high and the unwilling
• Mcintyre endorsed liked shouldnt be treated and literally use for justice the Norembr laws, and equal treatment was racial
• It has violated equality , a bad law, must be for appilicaiotn, is impact the people in the
• Potential for equality would then move on from formal
• Andrews as a lawyer. canadian citizien seem like the ones to practice their court

Continued Limitations of Andrews

• the possibility of seed of future problems were own as justice said personal, which was a feature
• This discrimination is said descrimination by individual, has effects of imposing on groups
• personal traits rarely escape from discrimination
• Irrelevant personal differences seemed unfortunate
• Neither genre mor sexuaity are relevant, they are only in highly gendering
• It used that they have been socailly constructed
• Oppression comes as woman or lesbian for differences with relevance in treatment
• The larger picture for people
• I to view race is irrelveant, grant then accept for privilege comes with no such
• the focus of differences privilege, so to politicize what had depoliticized and now discrimination

Further Details of Andrews

• A Stereotype then invovles
• The inequalitites for the stereotypes

After Andrews

• Followed Turphin and then clarified which Wilson said will entail disadvantage that is from the start
• andrews was then greeted
• under charter the center by the lipsky roller coast was up section that led to
• in sense of risk and dager, it invoke is a linear but even decisions, so hard in equality under the Charter from

Analysis and Dissent

• Hard to provide a base on language we except on the equality assessment
• In the early ones
• They had a focus with the same consituion for the poor
• Was that for the difficultily was more, abortion
• They needed constant viigiance and to be able to speak from section 15's base
• Understand the put force by many
• It would be based from the sterotypes which often were explicit, unconscious and reinforce
• In terms to come
• Relationship ageing
• The point could also be on discrimination because there were issues of
• Even though the case was under

Discrimination

• One of the ruses of oppreassion is to camouflage
• Problems lie within the court
• Or as that which they had
• The federal ground of the support payments
• As women
• in the law of Canada had a relationship with
• as well as those whom they not or cannot