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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part VI Constitutional Theory, C Key Debates in Constitutional Theory, Ch.45 Feminist Constitutionalism in Canada

Beverley Baines, Ruth Rubio-Marin

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

(p. 965) Chapter 45  Feminist Constitutionalism in Canada

1.  Introduction

In 1986, a feminist constitutional law scholar asked “Can constitutions be for women too?”1 This is the question asked in this chapter: Can the Canadian Constitution be for women too? The chapter articulates what a feminist constitutional agenda should evaluate. It draws on work from feminist constitutional scholars around the world to imagine what constitutionalism should look like if it were to truly respond to women.

Women around the world resort to constitutional litigation to resolve controversies involving gender issues. This litigation involves claims for political participation, freedom from discrimination and violence, sexual and reproductive rights, employment and civic rights, and matrimonial and social and economic rights. Including women brings a series of challenges to the existing orthodoxy. The challenge is complex because feminists and non-feminist judges often emphasize different material facts, rely on different terminology, (p. 966) and reason distinctively.2 Most feminists believe that gender equality will not be achieved until the oppression and subordination of women are overcome. Some jurists continue to deny or ignore that women’s oppression and subordination are real. Others question the value of relying on constitutional strategies for redress in absolute or relative terms.

Feminist constitutionalism proposes to rethink constitutional law in a manner that addresses and reflects feminist thought and experience. Its focus on women brings a critical lens to bear on the “gender neutral” approach traditionally and still generally favoured in analysing constitutional law. After presenting some core elements of this approach to constitutionalism from a feminist perspective (feminist constitutionalism), this chapter analyzes a few Canadian examples with a feminist constitutionalist perspective.

2.  Feminist Constitutionalism

Constitutions generally express women’s interests and needs in the form of human rights protections.3 The propensity to address women’s status in terms of human rights is replicated on the international level. Protection of human rights is undoubtedly extremely important to women’s lives and there is an open and ongoing agenda to reassess the comprehensiveness of the classical list of rights by adding women’s historically excluded voices to the exercise of constitution making. Without more, however, limiting women’s constitutional enterprise to that of rights protection attributes victimhood status to women. Whether feminist scholars review judicial decisions or analyse written instruments they analyse domestic legal orders that claim to protect women from human rights violations while they simultaneously constitute them as victims. Absent recognition of voice and representation, constitutions do not constitutionalize women’s agency.4

The puzzle is how to design and implement law and governance that move beyond victimhood, which is real, to identify and empower women’s agency and to insist on women’s voice and representation in politics and in constitutional law. As a first step, feminist constitutionalism challenges purportedly “gender neutral” constitutional law scholarship. This scholarship addresses issues as if they pertain only to federalism or the separation of powers or constitutional rights. Typically, such work is further bifurcated into studies focusing on one or two main strategies for dealing with rights conflicts. The more popular strategy is autonomy which encompasses claims that range from individual privacy to collective self-determination. Thus, when perceived in terms of self-determination, autonomy is the rallying cry of many indigenous, racial, ethnic, and linguistic groups. (p. 967) On occasion, most of these rights-seeking groups also turn to the other major strategy for managing rights conflict, which is equality. Although these three major constitutional law categories—federalism, autonomy, and equality—might capture women’s claims, they may also distort and/or impoverish them, viz. should claims of democratic underrepresentation be subsumed under autonomy or equality, or are they sui generis? Also, with only three categories at their disposal, scholars might be tempted to portray relationships among them as adversarial, viz. treating pornography as a contest between the pornographers’ autonomy and the equality rights of women and girls, which would neglect entirely the entitlement of the latter to self-determination or autonomy.

Thus, we propose to design a feminist constitutional agenda as a middle course between the extensive and reality-driven delineation of issues that feminist scholars advance and the more rigidly bounded categorization found in constitutional law scholarship. The main goal is, in short, to identify, sustain, and promote constitutional norms and strategies that will achieve gender equality for women. Our claim is that any constitution must advance women’s rights and participation if it is to lay claim to political and legal legitimacy.

It is appropriate to ask about women because they remain an oppressed group.5 Iris Young’s five faces of oppression—violence, exploitation, marginalization, powerlessness, and cultural imperialism—represent the reality of many women in Canada and elsewhere.6 Violence against women exists in the forms of sex trafficking; sexual assault; sexual harassment; cyberstalking; abuse including sexual abuse of migrant women, asylum seekers, refugees, and differently abled women; and intimate partner abuse.7 Exploitation and marginalization exists in low employment rates, the gender pay gap, lower or no pensions, occupational segregation in less lucrative sectors, undervalued part-time work, and the burden of most of the housework.8 Evidence of powerlessness exists in the low numbers of women on corporate boards, lack of parity in political representation, and the failure of many women to break through the glass ceiling.9 By cultural imperialism, we could refer to the androcentrism that privileges masculinity while devaluing femininity, including the absolute failure of society to acknowledge the social value of care work.10 Cultural imperialism also covers heteronormativity, transphobia, and religious and ethnic imperialism experienced by lesbians and trans women and adult Muslim women who wear headscarves.11 Many Canadian women face such oppression. It is appropriate to ask whether the Canadian Constitution is for women too.

Feminist constitutionalism considers the position of women with respect to (1) constitutional agency, (2) constitutional rights, (3) constitutionally structured diversity, (p. 968) and (4) constitutional equality. It also gives special attention to (5) women’s reproductive rights and sexual autonomy, (6) women’s rights within the family, and (7) women’s socioeconomic development and democratic rights. Feminist constitutionalism defines various questions that need to be confronted.12 We proceed to define how such questions should be asked.

A.  Women and Constitutional Agency

For centuries, states openly barred women from participating in civic life, whether as voters or legislators, lawyers, or jurists. Men monopolized constitutional activities. Not surprisingly, women’s initial forays into the realm of political decision-making focused primarily on voting, although their strategies differed.13 On the one hand, white women in two Australian colonies were not only the first to receive the franchise, but also in 1901 they became the first women to vote on a constitution. On the other hand, following decades of lobbying, in 1920, Americans became the first to secure a constitutional amendment guaranteeing women the right to vote. Although these initial strategies were important, it is curious that they did not lead to any further constitutional changes for women in either country.

The embrace of formal equality and the explicit commitment to sex equality only became a general trend in post-Word War II constitutionalism although its emancipatory potential was limited at the time by the culturally hegemonic breadwinner family model.14 Women’s role in promoting those provisions was uneven and to this day remains under-examined. However, given pervasive underrepresentation in legislative and constituent assemblies, it would not be surprising to find that their activities were limited. It was not until the 1980s, and especially the 1990s (with the international embrace of the agenda of women’s empowerment best epitomized by the Beijing Platform for Action in 1995), that women began to engage more actively in processes of general constitutional renewal around the world. For instance, not only did Canadian women lobby to strengthen the sex equality guarantees newly entrenched in the Charter of Rights and Freedoms (1982), but also women in Colombia successfully advocated for gender equality and gender-related provisions in their new constitution (1991), and South African women actively and meaningfully participated in the process of drafting their new constitution (1996). Finally, by significantly contributing to a wave (p. 969) of constitutional amendments to enable the adoption of gender parity and gender quotas,15 women in Europe may exemplify a new era, one in which women can seek specific gender-related constitutional amendments as needed rather than only during times of general constitutional change, which is to say, one in which women can define rather than simply join “constitutional moments.”

The foregoing suggests women, including those who are active in feminist movements, have begun to identify constitutions and constitutional change as relevant to our lives. The process of litigation also offers women ways of developing and changing the meaning of constitutional norms. But this too requires women to perceive themselves as constitutional actors. It is not surprising that many early sex-equality provisions around the world saw men (and not women) as protagonists. Therefore, with respect to the level of women’s litigious activity, we must ask not only what enabling conditions are necessary but also what institutional mechanisms are most likely to overcome conventional barriers to accessibility by helping women as a group to avail themselves of constitutional tools.16

Understanding women’s constitutional agency requires an understanding of the types of claims that women bring, and the constitutional strategies on which they rely. There is no question that, although the strongest emphasis has been on equality provisions, gender-related litigation has proceeded under most of the other rights-based provisions as well as under some federalism provisions. Also, constitutional gender equality may be affected in cases in which women are defendants or not even parties, as for example in most sexual assault prosecutions. Finally, any assessment of the quality of women’s constitutional litigious agency would not be complete without an assessment of the difference, if any, that is made by having women on the final appellate courts that decide constitutional matters.17 We should celebrate that recently the parity agenda now extends to concern with women’s persistent underrepresentation on the highest courts, with several courts now being constitutionally or legally obliged to include women.18

In sum, women’s constitutional agency involves lobbying, legislating, litigating, and adjudicating. Although all of these roles are open to women, our entry is not commensurate with our numbers, suggesting invisible but real public constraints, perhaps not unlike the proverbial glass ceiling in the private workplace.

(p. 970) B.  Women and Constitutional Rights

Constitutional rights provide women and other rights seekers with the tools to challenge state activity in the courts. In some constitutional traditions, constitutional rights apply horizontally as well, granting women tools to combat not only public forms of injustice but private ones as well. In general, constitutional rights seem to offer more protection than statutory and other nonconstitutional rights, which may not constrain legislation. Arguably there is one important respect in which statutory and other nonconstitutional rights might be perceived as offering better protection to rights seekers: whereas constitutional provisions tend to have a greater visibility and seem to permeate more easily the general legal culture than statutory rights do, statutory rights are often detailed, making their meanings more transparent and accessible to rights seekers. In contrast, constitutional rights are usually expressed in terms of abstract generalities so that their meanings are dependent on the interpretations judges have ascribed to them. Thus, understanding constitutional rights involves understanding the claims litigants have raised (or failed to raise) and the way in which judges have adjudicated them. Additionally, in some contexts (especially regarding sexual and reproductive matters) it may be pertinent to ask ourselves whether constitutionalizing some disputes, often through creative and expansive jurisprudential constructions, may raise the stakes and elevate their political salience in ways that are more likely to trigger backlash, raising the question as to whether some conquests may not be better gained through lower profile legislation. The constitutionalization of abortion through Roe v. Wade in the United States has certainly raised this kind of question in the past. The constitutionalization of same-sex marriage, at least in some countries, could raise similar concerns today and invite reflection about the trade-offs between the symbolic gains of having certain prerogatives “constitutionalized” and the material gains in terms of stably securing new forms of autonomy and equality.

Women have often used constitutional instruments to fight against unwanted motherhood, pregnancy, and employment discrimination; domestic violence; political underrepresentation; sexual harassment; military service discrimination; sex crimes and/or their accompanying procedures; or unfair marriage, divorce, and succession rules. Given their breadth, it is striking how rarely many of these sites of struggle are expressly prohibited in constitutional terms. This lacuna forces women to figure out constitutional strategies to react against the liabilities involved, struggle by struggle, often being forced to fit their realities into gender neutral provisions that were originally crafted by men in the image of men’s vision of autonomy.19 Having to contend on a case-by-case basis for subsuming specific prohibitions within the more abstractly worded (p. 971) provisions found in most constitutions is resource intensive and energy depleting. The flexibility of expressing constitutional rights abstractly may or may not assist women.

Constitutional rights are no panacea. Constitutional rights espouse, and are expected to espouse, the fundamental values of a nation, and this has both good and bad consequences for women because courts are prepared not only to uphold but also to limit women’s claims in the name of these fundamental values. For instance, freedom of speech has traditionally been asserted against attempts to limit the harm women suffer because of pornography.

Finally, some consideration should be granted to constitutional hermeneutics as well.20 Do different methods of constitutional interpretation have a gender impact? Time may make a difference here. Presumably, if the constitution is an old document written at a time when women’s subordinate status was accepted as the natural order of things, and if the courts prefer an originalist or textual approach rather than a “living tree” or teleological approach,21 this may have a negative impact on women’s constitutional position.22

Also, the different relevance constitutions attach to international human rights instruments and supranational law can have a clear impact on women’s constitutional status. Some constitutions expressly incorporate international law as domestic law. More common, however, is the recognition of the need to interpret constitutional rights in the light of relevant international or supranational law. This is the case in Canada.23 CEDAW is, for instance, often invoked and European Law is sometimes very relevant to constitutional interpretation in EU Member States, such as France, Germany, or Spain.24 This is an avenue not sufficiently explored in Canadian jurisprudence.25 Obviously, several of the shortcomings of national constitutional rights-based legal orders cannot be overcome by human rights texts and doctrines that have been also mostly crafted and (p. 972) interpreted by men; they are a product of their time and, they too, are clearly susceptible to feminist critique.26

C.  Women and Constitutionally Structured Diversity

Although women have participated in revolutionary activities, gender conflict has never caused a national revolution. Indeed, there is little evidence that gender conflict has influenced the design of the constitutional structures that promote national unity and postpone revolution. Instead, economic, cultural, and religious conflicts have dictated the choices of constitution makers in selecting their country’s form of governance (whether monarchy or republic), territorial principle (whether federation or unitary state), and jurisdictional approach (whether to recognize customary laws and other sources of legal pluralism).27 This was certainly the case for Canada in 1867.

Accordingly, feminist scholars are constrained to examining the impact on women of these various constitutional structures and the diversities that underlie them.28 For instance, the choice between monarchical and republican forms of governance seems gendered because the vast majority of the world’s monarchs have been and still are men. Nevertheless, that is not always the case and also the rule of primogeniture, or male preference succession that prevails in many monarchies may in the end be indistinguishable from similar male preference leadership de facto or de jure rules to which various republics adhere.29

When nations choose federation over unitary status as their territorial principle, usually it is for economic reasons, often attached to geographical considerations, although ethnocultural conflict also plays a role in plurinational states, as happened in Canada. From the perspective of women, however, the major consequence of this choice is often to allocate “private” matters to the regional entities rather than to the national level and to follow the separate spheres tradition, with its gendered undertones, when deciding what amounts to “private” matters. For instance, family law becomes a matter for regional concern, and frequently employment law follows suit. These and other territorial distributions of legislative power suggest the importance (p. 973) of examining their impact on women, particularly from the standpoint of feminist theorizing about the public/private split. For example, in the case of Quebec (Attorney General) v A,30 the Canadian Supreme Court refused Charter protection to the unmarried immigrant mother of three children on the break-up of her relationship with their billionaire Québécois father who had refused to marry her. Instead the Court validated the Québec Civil Code’s restriction of support and property division dispositions to married couples, leaving unmarried couples in a law-free or private zone that is detrimental to mothers. Many argue that federalism considerations influenced the Court’s decision not to invalidate the provincial restriction.31 In a federation such as Canada, feminists need lobbying and litigation strategies to address the gendered impacts of provincial and federal legislation.

Although recognition of a country’s diversity through increasing constitutional acceptance of legal pluralism and validation of sources of law other than state law (whether it be indigenous, customary, or religious law) is a conquest with potential gains for minority women who can thus see their cultural and religious belonging better protected, traditionally, concern has been raised about the possibility that such recognition may come at the expense of women’s equality or autonomy when the system of law protected is one that can enshrine patriarchal forms of power. This is particularly worrisome in those cases in which constitutions contain exclusionary clauses to prevent cultural norms or personal status laws from being challenged in case of contradiction with constitutional rights provisions, very much like the possibility signing countries have to place reservations on international human rights treaties (including CEDAW) for the same purposes. Some constitutions try to avoid this through limiting clauses that stipulate that local customs or non-state norms cannot violate individual rights as constitutionally enshrined Bill of Rights, something which limits minority self-rule. More recently, we see countries embracing the gender participatory shift in the context of legal pluralism, with some constitutions now recognizing the need for self-rule that includes minority women’s voices,32 and increasing institutional experimentation with nested gender quotas combining ethnic and gender criteria.33

(p. 974) D.  Women and Constitutional Equality Doctrine

Most constitutions explicitly prohibit sex or gender discrimination, and/or guarantee equality rights to men and women or to male and female persons. The promise of these provisions is clear. Because the oppression of women remains a worldwide phenomenon, these provisions are available to support women’s equality claims (in fact, many constitutions, as does the Canadian Charter, also explicitly approve of positive equality in cases where historic discrimination is being remedied). Although the equality provisions do not preclude men from claiming their protection, effectively the provisions were drafted to protect women, even if women are not explicitly mentioned. Nevertheless, difficult issues remain: What does sex equality mean? When can women claim infringement of their constitutional right to sex equality? How should courts adjudicate the conflict between equality claims and other constitutional values?

The traditional doctrine of sex equality had two meanings. One is formal equality; the other, separate but equal. Both doctrines rely on the Aristotelian notions of treating alikes alike, and unalikes unalike. Accordingly, both focus on identifying the relevant differences and similarities, whether biologically or socially determined, between men and women as groups. Where they differ is in their emancipatory strategies. Formal equality assumes the sex of a person reveals nothing about individual worth or autonomy; its main objective is to create a gender neutral legal order, which turns out to be one in which women are treated just like men. In contrast, as its nomenclature suggests, separate but equal doctrine emphasizes respect for and the value of women’s differences, while promising to ensure they do not result in worse treatment. Post World-War II constitutionalism coincided with the peak moment of cultural hegemony of the breadwinner family model, and this forced courts to struggle to find a balance between erasing sexual differences in the law (to live up to non-discrimination mandates recently incorporated in the constitutions) while allowing those differences that were essential to affirm the dominant family model to survive under the separate but equal doctrine.34

Whatever the doctrine formally embraced, the same kinds of issues arise. Thus formal equality courts have struggled to accommodate pregnancy discrimination and affirmative action by treating them as limited exceptions, whereas separate but equal courts have found it difficult to distinguish legislative stereotyping or paternalism from the less debilitating manifestations of protective or symbolic legislation. Taken collectively, these doctrines portray sex as an abstract conceptual category that is vulnerable to the excesses of judicial discretion; and more important, both focus on open and direct differentiation between the sexes, thereby failing to identify discrimination that is embedded in gender neutral or gender specific legislation.

Feminist scholars, litigators, and activists developed a third doctrine, “substantive equality”. Unlike the other two equality doctrines, it is not obsessed with (p. 975) identifying similarities and differences between men and women (to build upon them the “similarly situated test”), nor with trying to classify them as biological or socially constructed. Substantive equality tries to identify patterns of oppression and subordination of women as a group by men as a group on the understanding that most sex discrimination originates with the long history of women’s inequality in almost every area of life rather than inhering in sex as a conceptual category. Ultimately, therefore, the goal of substantive equality is to transform structural discrimination, partly by uncovering the inequalities embedded in gender neutral laws and partly by challenging schemes that differentiate women by offering only paternalistic benefits instead of transformative remedies. Unfortunately, even under this doctrine there is hardly any way of getting around the objection that some of the “benefits” or “advantages” that the doctrine tries to extend to women have the potential to embed traditional gender roles35 or traditionally male definitions of the good life and autonomy which systematically undervalue the domains of self-realization and fulfillment, including giving life to and caring for others, that have traditionally defined and confined women’s distinctive citizenship.

Finally, irrespective of which doctrine judges apply, they must relate it to the prevailing concept of discrimination and, on occasion, to other constitutional rights and freedoms. These relationships give rise to various issues, as the following questions illustrate. Must discrimination affect all women equally in order to qualify as such and, if so, with what consequences? Do courts recognize intersectional discrimination, that is discrimination based on more than one prohibited ground, or must women choose only one ground (think of sex versus Aboriginal status, race, caste, or religious identity)? Do the traditional liberal rights and freedoms—such as freedom of expression, freedom of religion, privacy, due process, the right to a fair trial, and other procedural guarantees in criminal law—limit the constitutional right to sex equality? Are these tensions recognized? How are they resolved?

Feminist constitutionalism enriches the way in which jurisprudence is shaped and analysed. It confronts directly the limits of “gender neutral” (but anchored in male privilege) guarantees. In addition, feminist constitutionalism is concerned about ensuring women’s reproductive rights and sexual autonomy as well as socio-economic and democratic participation.

E.  Constitutionalizing Women’s Reproductive Rights and Sexual Autonomy

Very few constitutions advert to sexual and reproductive rights even though they are vital to women as individuals and as a group. However, in many countries, there are (p. 976) a number of cases involving reproductive issues that are not specifically denominated, such as abortion, in vitro fertilization, contraception, and sterilization. Because these processes were criminalized or otherwise regulated, litigants have sometimes resorted to more generalized rights to challenge the constitutionality of regulation. Just as frequently, litigants have resorted to constitutional rights and values (such as the right/value of life) to impede legislative recognition of women’s reproductive rights through abstract review of legislation.

The abortion jurisprudence is particularly apposite to illustrate the complexities induced by having to argue reproductive rights claims from a default position. Many countries have criminalized abortion subject to one or more exceptions (e.g., therapeutic, rape survivors, fetal malformation or lack of viability). In the absence of abortion rights, litigants are forced to turn to a broad and diverse range of rights to sustain women’s entitlement to control their own bodies, including security of the person, liberty, equality, privacy, free development of one’s personality, physical integrity, human dignity, physical and moral integrity, and freedom of thought and belief. This has given constitutional courts (still overwhelmingly male) a large realm of discretion on the matter. The Canadian case is explained below.

Sexual offences, too, represent a site of controversy about which constitutional law scholars would be hard pressed to deny that the entrenchment of constitutional rights has detrimentally affected women. Whether criminalized or otherwise regulated, sexual offences—including rape, sexual assault, prostitution, pornography, hate speech, sexist speech, and sexual harassment—have created much constitutional litigation opportunities for the criminal defense bar. Relying on traditional legal rights such as the presumption of innocence, the right to a fair trial, and the right not to be subject to cruel and unusual punishment, as well as on freedom of expression, equality rights, and the right to life, liberty, and security of the person, male defendants have not hesitated to challenge the constitutionality of various sexual offences and the evidentiary or procedural rules pertaining to them. To illustrate, men have invoked constitutional rights to argue for liberal access to the sexual history of the rape survivor and to her therapeutic counselling records in Canada.36

As the victims-survivors, women are all but invisible, enduring these constitutional challenges without having a litigation status from which to respond. Despite this disempowerment, women have demanded constitutional protection for sexual autonomy. (p. 977) Sometimes victims’ lawyers make these assertions in court; sometimes prosecutors voice them, albeit usually with the objective of protecting the state’s interest in the impugned legislation. Either way, the discourse has been framed in terms of various rights including equality, liberty, and freedom of expression. Not only should this jurisprudence illuminate how courts address tensions among constitutional rights, but also it should yield a picture of which rights they favor. In sum, when women claim the right to constitutional protection of sexual autonomy, can courts hear our voices? Obviously, in the few instances in which sexual and reproductive autonomy provisions have been inserted into constitutions, courts must hear.37

F.  Women’s Rights, Care, and the Constitutional Definition of the Family

Family and marriage are among the most frequent objects of explicit constitutional protection worldwide with many constitutions recognizing the family to be the foundational cell of society. Moreover, the presence of constitutional provisions referring to the family or marriage does not determine whether countries have constitutional jurisprudence pertaining to it. Rather, such jurisprudence pervades all countries. In other words, the family has acquired a constitutional veneer, whether by political and/or judicial decree. It is thus important to examine how this constitutionalization of the family has affected women’s rights. The idea that constitutions should (implying can) stay out of the home is indeed a myth.

Writ large, we need to understand how constitutions and constitutional doctrines shape and are shaped by conceptions of the family. For instance, is curial discourse restricted to recognizing only formally married, sequentially monogamous, heterosexual couples, or have courts been asked to accord matrimonial status or at least some family benefits (e.g., survivors’ pensions, protection of children born out of wedlock, succession and property rights) to common law or de facto families, to single-parent families, to polygamous unions, or to gay men and lesbians? Can constitutions and the courts interpreting them really be neutral about family arrangements, relying, most commonly, on gender neutral rules and family privacy notions, or do they inevitably end up favouring internal arrangements which either advance or limit gender equality?38 In rendering these decisions, moreover, have courts acknowledged (p. 978) their specific impact on women’s well-being, and how can they do so without further entrenching the expectation that women be the ones taking the greater share of care responsibilities within it? Ultimately, feminist scholars ask: Should constitutional doctrine continue to sustain the fiction of the split between the private and public, or should it gradually overcome the idea of the family as free from the exigencies of fundamental rights?

New and promising constitutional provisions are being crafted around the world expressing growing awareness about these matters.39 In Bolivia, for instance, one finds constitutional language referring to equal opportunities, and thus endorsing substantive equality rhetoric, specifically in the family domain.40 Increasingly, we find that references to motherhood, as a constitutionally protected status, are being replaced by a reference to parenting and to fatherhood, sometimes with an explicit mention to the need to unsettle traditional gender-specific parenting roles like in Colombia.41 Yet, most revolutionary are clauses, such as those contained in the Constitution of Ecuador (art. 333), referring to the need to reconceptualize care as productive work (thus overcoming the dichotomy between productive and reproductive work), and care as a citizenship duty. However, without supporting public policies these provisions are likely to remain dead letters.

G.  Women’s Socioeconomic Development and Democratic Rights in the Constitution

Given that virtually in no country are women the socioeconomic equals of men, the first obvious question is whether constitutions specifically address women’s socioeconomic needs. Any feminist constitutional agenda that looks at results, and not just at intentions and formalities, should also address the constitutional status of socioeconomic rights in general, as opposed to first- and second-generation rights. Even when phrased in gender neutral terms, the rights to housing, education, health care, social security, and food, recognized by some constitutions, have a gender impact, and will do so, as long as poverty has the face of a woman.

(p. 979) Obviously, women’s political status is crucial to the overcoming of their social and economic subordination. Women can vote and serve as elected political representatives. The United States Constitution is exceptional insofar as it guarantees both sexes equal voting rights; similarly, the South African Constitution is unique in describing the composition of the National Assembly in terms of both genders. In addition, since the mid-1990s, gender quotas have become the new preferred tool to promote women’s equal participation in decision-making bodies in the political sphere and increasingly, in other domains of public participation. This represents a positive step to ensure that women’s democratic rights are recognized as possessing a participatory, as well as a formal legal, dimension. Constitutionally, with some Latin American countries taking the lead, a trend has started whereby constitutional provisions are being inserted to either permit or require these positive measures. In many countries the adoption of measures aiming to increase women’s participation has triggered much constitutional contestation,42 and in some countries, such as France, the measures have only come about after a highly disputed constitutional amendment process (and a reframing from quotas to parity) given that these measures were seen to challenge formal equality as well as established notions of democratic representation.43 Constitutional law scholars must reflect on the opportunity of enhancing women’s participation in the electoral process. Although some may be perceived as temporary measures necessary to facilitate women’s incorporation into the political domains, others may be intended to redefine democratic participation more permanently to provide voice and representation for women and to overcome the legacies of the separate spheres tradition entrenched in constitutionalism since its very foundation.44

Feminist constitutionalism approaches constitutional theories, techniques, and definition of rights with a view to advancing women’s equality. It aims to transform constitutional law to better reflect women’s voices and experiences. Constitutions must take women (in their multiple identities including indigenous, immigrant, refugee, and trans women) seriously. The reality is that women are poorer and less able to access the reins of power. Legal doctrines which could empower us still serve to preserve the status quo forcing women to internalize a lesser status. The stakes are high. In the next subsection, we proceed to apply the feminist constitutionalism framework to some aspects of the Canadian constitutional experiment.

(p. 980) 3.  Feminist Constitutionalism and the Canadian Construction of Women

In 1867, Britain gave its Canadian colonies a written Constitution that imposed a federal system of parliamentary government.45 While making jurisdiction a constraint on law-making, this Constitution did not provide Canadians with human rights protections (although rights such as freedom of contract and private property received common law protection). The legislatures could pass laws denying women the right to vote, hold public office, serve on juries or in the armed forces, immigrate, perform certain jobs, have an independent domicile or continue to work after marriage, dispose of property, have an abortion, receive employment insurance after giving birth, retain Aboriginal status on marrying a non-Aboriginal, or retain Canadian citizenship on marrying a non-Canadian. Whenever litigants challenged these laws by invoking international, statutory, or unwritten human rights protections, most Canadian judges refused to recognize their claims. Thus, constitutional litigation was not a viable strategy for women.

This picture changed significantly when the existing Constitution was supplemented by new constitutional provisions in 1982.46 Prominent among these changes was the Charter, which delineates seven major rights: political (religion, expression, assembly, and association), democratic, mobility, legal, equality, language (official and minority educational), and Aboriginal.47 This rights protection regime transformed the system of government from parliamentary to constitutional supremacy by assigning the enforcement of Charter rights to the regular courts. Almost simultaneously with the adoption of the Charter, the first woman justice was appointed to the Court; currently four women sit, one of whom is the Chief Justice. However, no constitutional or statutory rule guarantees continued gender representation on the Court, even though such a rule would not be entirely unprecedented, given that by law at least three justices must come from the Province of Quebec.48

What does Charter jurisprudence reveal about the impact on women of adopting a rights protection regime? To assess this jurisprudence, in this chapter we adopt one of the criteria defined by Sherene Razack: Does the Charter rights protection regime facilitate the feminist “project of naming, of exposing the world as manmade”?49 We explore (p. 981) the theme of women’s constitutional agency to then assess the constitutional rights outcomes and the role of the courts as described earlier. Space does not permit a review of all questions raised by feminist constitutionalism in terms of democratic rights, socio-economic rights, family law protection, or equality jurisprudence. These have been discussed in earlier chapters in this Handbook.

We first examine the role of feminists in the development of Charter equality doctrine. The adoption of the Charter cast Canadian feminists into two major roles. As lobbyists, feminists advocated for sex equality and other Charter rights, recognizing their fate depended on whether governments could limit or abrogate rights. As litigators, feminists often acted collectively to try to import the doctrine of substantive equality into Charter cases.

A.  Constitutional Agency: As Lobbyists

Between 1980 and 1982, feminists lobbied both levels of governments for recognition of women’s constitutional rights.50 This process went through three stages. The first stage involved legally knowledgeable women who “stressed the requirement for ironclad entrenched equality between women and men as a non-negotiable demand”.51 During the next stage, this objective was pursued more widely by established women’s groups working with the Ad Hoc Committee of Canadian Women on the Constitution, a women’s lobby group that arose spontaneously after the male Cabinet Minister responsible for the status of women ordered the cancellation of a women’s constitutional conference less than a month before it was to take place. The final stage reached far beyond activists to individual women, each of whom perceived equality rights were under attack, after government leaders agreed some Charter rights, including sex equality rights, could be temporarily overridden by a legislative declaration.52 In fact, the potential for violating Charter equality rights led the Province of Quebec to enact five sex equality override laws, in 1986, 1991, 1996, and 2001, in order to allow some government pension plans to differentiate between women’s eligibility for pension (age 60) and men’s (age 65).

(p. 982) Ultimately, two sex equality provisions were included in the Charter. The general equality provision (section 15) prohibits discrimination on nine listed grounds including sex, as well as permitting ameliorative programs for disadvantaged individuals or groups.53 The second provision (section 28) deals only with sex equality and provides:

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Section 28 has yet to receive definitive meaning. One study of 60 cases that referred to section 28 put “its integrity as a constitutional provision in serious question”, reporting judges profoundly debase and marginalize it.54 Notwithstanding its ambiguity in the Canadian Charter, Quebec enacted a virtually identical provision in its provincial Charter in 2008.55 A third sex equality provision (section 35(4)) was entrenched by constitutional amendment in 1983.56 This section provides:

35. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Limited to aboriginal claimants and yet to be interpreted, Section 35(4) is exempt from the Charter’s override provision because it falls outside the Charter.

Subsequent constitutional discussions in the late 1980s and early 1990s revealed the inadequacies of all three provisions. For example, during the 1992 constitutional negotiations the Canadian government funded four traditional male-dominated aboriginal organizations but refused to fund the Native Women’s Association of Canada (NWAC). NWAC contended this exclusion infringed their Charter rights to freedom of expression and sex equality. The Canadian Supreme Court disagreed, holding that funding was not a prerequisite to expression and that NWAC did not represent all Aboriginal women, some of whom participated in the traditional (p. 983) organizations.57 Unfortunately, this reasoning missed the point, which is that NWAC represented Aboriginal women unrepresented by the four male-dominated organizations. These women supported keeping Charter rights in place during any process of transition to Aboriginal self-government, a position that was unique, as the four traditional associations wanted immediate relief from all non-Aboriginal laws, whether constitutional or otherwise. Indeed, the issue of representing and contextualising women’s experience, particularly Indigenous women, continues to be a struggle in Canadian law.58

B.  Constitutional Agency: As Litigators

After section 15 became effective, the lower courts were inundated with equality cases. Of 591 cases decided during the first three years, fewer than 10 percent were based on sex, 35 of which were brought by or on behalf of men and only 9 by or on behalf of women.59 Although this litigation focused mainly on formal equality, even that represented an improvement over pre-Charter decisions denying gendered intermarriage and holding pregnancy discrimination laws did not violate women’s equality rights.60 Fortunately, the Supreme Court of Canada decided equality should not be restricted to formal equality, recognizing “that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality”.61

Eight years later in an act of revisionist history the Court proclaimed that this earlier decision had signalled its commitment to substantive equality.62 Although feminist constitutional law scholars acknowledge the Court now names substantive equality as the doctrine that informs the test for section 15 equality rights, most would deny that the Court actually uses substantive equality analysis.63

Nevertheless, much credit must go to the Women’s Legal Education and Action Fund (LEAF) for trying to persuade the Court to adopt this analysis. Following a nationally-funded research study that concluded “a legal action fund to concentrate on issues of sex-based discrimination is an essential component of an effective strategy to promote (p. 984) the interests of women in the Canadian legal system,”64 LEAF was created as a national non-profit organization with the dual mandates of participating in litigation that promotes equality for women and of educating the public about this litigation and its relationship to women’s equality.

The subversion of substantive equality analysis combined with the fact women have not won a single sex equality case that reached the Canadian Supreme Court suggests Razack’s first criterion, “of naming, of exposing the world as man-made”,65 has yet to yield the results sought by the feminists who lobbied for sections 15, 28, and 35(4). Male privilege prevails, or as one feminist legal scholar explained: “Women’s inequalities and the discrimination that is so interwoven into women’s daily lives are largely unrecognizable and incomprehensible to those in dominant positions. It is the privilege of not knowing and the, often unconscious, resistance to finding out that are at stake here”.66 Although Charter sex equality litigation offers a place from which privilege could be challenged, perhaps it is time to reassess its value. It should, but has yet to, provide a vehicle for women to name “objective” reality for what it is, a world organized consistently with male practices and beliefs.

What remains is to analyze one example of Charter jurisprudence that illustrates how Charter adjudication has met Razack’s criterion. This illustration is in the very important context of women’s reproductive rights.

Prosecuted for performing abortions, a doctor argued the prohibition infringed women’s right to privacy and to make unfettered decisions about their lives.67 The Court, which has the power to redefine issues upon granting leave to appeal, characterized his challenge as based upon the section 7 right to life, liberty, and security of the person, leaving the question of whether Canadians have a constitutional right to privacy unresolved. Then, in a 5-2 decision, the Court ruled the prohibition on abortion infringed security of the person, confirming that right extends beyond physical to psychological integrity. The only woman justice at the time, Justice Bertha Wilson, held the abortion provision also deprived women of the right to liberty, which she defined in terms of personal autonomy over important decisions intimately affecting one’s private life. Although liberty had previously been restricted to situations involving incarceration, her definition was affirmed later.68

Justice Wilson also captured the male privilege inherent in regulating abortion when she wrote: “It is probably impossible for a man to respond, even imaginatively, to such a dilemma not just because it is outside the realm of his personal experience (although (p. 985) this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma”.69 However, the Court’s decision stopped short of creating a constitutional right to an abortion when the justices upheld the legitimacy of balancing fetal interests against those of women. In other words, the Government failed only because the therapeutic exception—which required the involvement of four doctors, hospitalization, and a diagnosis of danger to the woman’s life or health—was too stringent to achieve an appropriate balance. Thus, the decision left open the possibility for further, albeit more narrowly conditioned, regulation.

In fact, the national government tried to enact a new abortion provision with somewhat less stringent therapeutic exception requirements less than three years later, carrying the vote in the popularly elected House of Commons but failing by one vote in the appointed Senate.70 Despite a favorable outcome in the abortion decision, there is no guarantee of women’s constitutional right to control our own bodies; from this perspective, societal transformation is not yet a reality.

Indeed, the abortion debate continues within Canadian society. For example, women could not access abortion services in one province until a women’s lobby group formally initiated a lawsuit that forced the provincial premier to agree to open a reproductive health clinic by the end of 2016.71 The nexus of lobby and litigation illuminates a strategy that women might pursue to promote women’s agency in other reproductive, and more generally other constitutional, contexts.

4.  Conclusion

Feminist constitutionalism aims to ensure constitutions, mostly drafted by men, work for women. It asks questions about women’s constitutional agency as lobbyists, litigators, legislators, and jurists. It questions the manner in which rights are interpreted and reconciled by ensuring that women’s experience is taken into account. It has deepened the understanding of the principle of equality by moving beyond the formal equality paradigm or the “separate but equal” often-paternalistic trappings to define equality in a more transformative and substantive way. Feminist constitutionalism also questions the ability of abstract and general constitutional language to truly protect women’s reproductive rights and sexual autonomy and women’s socioeconomic development and democratic rights.

(p. 986) The Canadian Charter jurisprudence has provided opportunities for some Canadian women to acquire constitutional agency and name male privilege in some constitutional litigation. Nevertheless, the gains remain modest particularly because of the timidity toward socio-economic rights.72 In addition, many women, Indigenous, racialized, differently-abled, immigrant, and poor among them, struggle to get their voices heard fully in constitutional law.

Feminist constitutionalism is a work in progress. Much more still needs to be done for constitutions to be for women too.

Select Bibliography

  • Baines, B. ‘Women Judges on Constitutional Courts: Why Not Nine Women?’ in Helen Irving (ed), Handbook on Gender and Constitutions (Cheltenham: Edward Elgar Publishing forthcoming 2017)
  • Baines, B., Daphne Barak Erez and Tsvi Kahana (eds), Feminist Constitutionalism: Global Perspectives (Cambridge: Cambridge University Press, 2012)
  • Baines, B. and Ruth Rubio-Marin (eds), The Gender of Constitutional Jurisprudence (Cambridge: Cambridge University Press 2005)
  • Canadian Journal of Women and the Law (1985–) Volume 1 and following.
  • Froc, Kerri A.,“Is Originalism Bad for Women? The Curious Case of Canada’s Equal Rights Amendment” (2014–2015) 19 Review of Constitutional Studies 237
  • Greschner, Donna, “Can Constitutions Be for Women Too?” in Dawn Currie and B. MacLean (eds) The Administration of Justice (University of Saskatchewan Social Research Unit, 1986) 20
  • Irving, Helen (ed), Handbook on Gender and Constitutions (Cheltenham: Edward Elgar Publishing forthcoming 2017)
  • Irving, Helen, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (Cambridge: Cambridge University Press 2008)
  • Jackson, Vicki “Conclusion: Gender Equality and the Idea of a Constitution: Entrenchment, Jurisdiction, Interpretation’, in Susan H. Williams (ed), Constituting Equality: Gender Equality and Comparative Constitutional Law, (Cambridge University Press, 2009), 312
  • Kome, Penny, The Taking of Twenty-Eight: Women Challenge the Constitution (Women’s Educational Press, 1983)
  • Mossman, Mary Jane, “Feminism and Legal Method: The Difference Iit Makes” (1986) 3 Australian Journal of Law and Society 30
  • Roberts, Julian V. and Renate M. Mohr (eds), Confronting Sexual Assault: A Decade of Legal and Social Change (Toronto: University of Toronto Press, 1994)
  • Rodríguez-Ruiz, Blanca and Ruth Rubio-Marín (eds), The Battle for Female Suffrage in the EU: Voting to Become Citizens, (Brill, 2012)
  • Rubio-Marin, Ruth, ‘Women in Europe and in the World: The State of the Union 2016’, (2016) 14 International Journal of Constitutional Law 545
  • Rubio-Marin, Ruth, “The Achievement of Female Suffrage in Europe: On Women’s Citizenship”, (2014) 12 International Journal of Constitutional Law 4
  • (p. 987) Rubio-Marin, Ruth, “The (Dis)establishment of Gender: Care and Gender Roles in the Family as a Constitutional Matter”, (2015) 13 International Journal of Constitutional Law 787
  • Rubio-Marín, Ruth, “Women’s Political Citizenship In New European Constitutionalism: Between Constitutional Amendment And Progressive Interpretation” in H. Irving (ed), Constitutions and Gender, (Edward Elgar Publishing, 2017) (forthcoming)
  • Rubio-Marín, Ruth and Wen-Chen Chang, “Sites of Constitutional Struggle for Women’s Equality”, in Mark Tushnet, Thomas Fleiner and Cheryl Saunders (eds), Routledge Handbook of Constitutional Law, (Routledge 2013) 301
  • Smith, Lyn and Eleanor Wachtel, A Feminist Guide to the Canadian Constitution (Ottawa: Canadian Advisory Council on the Status of Women, 1992)
    • Cases

    • A.G. Canada v Lavell, [1974] SCR 1349
    • Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817
    • Bliss v A.G. Canada, [1979] 1 SCR 183
    • Eldridge v B.C., [1997] 3 SCR 624
    • Henrietta Muir Edwards and others v The Attorney General of Canada, [1930] A.C. 124
    • Lakshmi Dhikta v Government of Nepal, Writ. No. 0757, 2067, Nepal Kanoon Patrika, para. 25 (2009) (Supreme Court of Nepal)
    • Law Society of British Columbia v Andrews, [1989] 1 SCR 143
    • Native Women’s Association of Canada v Canada, [1994] 3 SCR 627
    • Quebec (Attorney General) v A, [2013] 1 SCR 61
    • R. v Mills, [1999] 3 SCR 668
    • R. v Morgentaler, [1988] 1 S.C.R. 30
    • R v O’Connor, [1995] 4 SCR 41
    • R.B. v Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315
    • Reference re Supreme Court Act ss. 5 and 6, [2014] 1 SCR 433(p. 988)


Professor, Faculty of Law, Queen’s University.

**  Professor of Constitutional Law, University of Seville. This text draws on excerpts from Professors Baines and Rubio-Marin’s book, The Gender of Constitutional Jurisprudence (Cambridge University Press, 2005), which includes their co-authored Introduction, “Toward a Feminist Constitutional Agenda” [hereinafter “Toward a Feminist Constitutional Agenda”), as well as Professor Baines’ chapter, “Using the Canadian Charter of Rights and Freedoms to Constitute Women” [hereinafter “Using the Canadian Charter”]. We are grateful for the permission to use these influential works and invite the readers to consult them fully.

1  Donna Greschner, “Can Constitutions Be for Women Too?” in Dawn Currie and B. MacLean (eds) The Administration of Justice (University of Saskatchewan Social Research Unit, 1986) 20.

2  Mary Jane Mossman, “Feminism and Legal Method: The Difference It Makes” (1986) 3 Australian Journal of Law and Society 30, 30–31 asked: “In the law’s process of determining facts, choosing and applying principles, and reaching reasoned decisions, is there any scope for feminism’s challenge to ‘our ways of seeing’?”

3  See Baines and Rubio-Marin (2005), above (n **); B. Baines, D. Barak-Erez and T. Kahana, (eds), Feminist Constitutionalism: Global Perspectives (Cambridge University Press, 2012).

4  H. Irving, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (Cambridge University Press, 2008).

5  Ruth Rubio-Marin, “Women in Europe and in the World: The State of the Union 2016” (2016) 14 International Journal of Constitutional Law 545.

6  Ibid., 547.

7  Ibid., 548.

8  Ibid., 548–549.

9  Ibid., 549.

10  Ibid., 549–550.

11  Ibid., 550: It is in this context that there is a need for the adoption of the substantive norm of parity democracy, that is, the “equal representation of women in every site of decision-making”, ibid., 553. Parity challenges “male dominance, as men perceive gender-based hierarchy to be their last bastion of comfort and sense of self in a context of emasculation”, ibid., 554.

12  The following is drawn from Baines and Rubio-Marin, “Toward a Feminist Constitutional Agenda”, above (n **).

13  On Europe, see Ruth Rubio-Marin, “The Achievement of Female Suffrage in Europe: On Women’s Citizenship”, (2014) 12 International Journal of Constitutional Law 4–34 and Blanca Rodríguez-Ruiz and Ruth Rubio-Marín (eds), The Battle for Female Suffrage in the EU: Voting to Become Citizens (Brill, 2012).

14  See Ruth Rubio-Marin, “The (Dis)establishment of Gender: Care and Gender Roles in the Family as a Constitutional Matter” (2015) 13 International Journal of Constitutional Law 787.

15  Ruth Rubio-Marín, “Women’s Political Citizenship in New European Constitutionalism: Between Constitutional Amendment and Progressive Interpretation” in Helen Irving (ed), Constitutions and Gender (Edward Elgar Publishing, 2017) (forthcoming).

16  See the chapter in this Handbook by Carissima Mathen on access to constitutional justice.

17  Beverley Baines, “Women Judges on Constitutional Courts: Why Not Nine Women?” in Helen Irving (ed), Constitutions and Gender (Edgar Elgar Publishing, 2017) (forthcoming)).

18  See art. 176 of the Constitution of Ecuador (mandating that parity between men and women be fostered in the judiciary). The Act organizing the Belgian Constitutional Court also stipulates that the Court should be composed of judges of both sexes. In implementing the rule the long-term aim of 33 percent of women has been set with every third appointment, since 2014, having to include one judge of the underrepresented sex. In the international domain, both the African Court of Human Rights and the International Criminal Court also now have rules to ensure women’s inclusion.

19  See Ruth Rubio-Marín and Wen-Chen Chang, “Sites of Constitutional Struggle for Women’s Equality”, in Mark Tushnet, Thomas Fleiner and Cheryl Saunders (eds), Routledge Handbook of Constitutional Law, (Routledge, 2013), 301–312.

20  On this see Vicki Jackson, “Conclusion: Gender Equality and the Idea of a Constitution: Entrenchment, Jurisdiction, Interpretation”, in Susan H. Williams (ed), Constituting Equality: Gender Equality and Comparative Constitutional Law (Cambridge University Press, 2009), 312–350.

21  Henrietta Muir Edwards and others v The Attorney General of Canada [1930] A.C. 124 (18 October 1929) (better known as The Persons Case). In this case, Lord Sankey used the metaphor of the Constitution as a living tree to recognize that the word “persons” should be interpreted as including women in the Constitution Act, 1867. See Robert J. Sharpe and Patricia I. McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (University of Toronto Press, 2007) for a detailed history of the case.

22  But see Kerri A. Froc, “Is Originalism Bad for Women? The Curious Case of Canada’s Equal Rights Amendment” (2014–2015) 19 Review of Constitutional Studies 237 who argues the application of originalist principles, at least for interpretation of s. 28 [Canada’s gender equality provision], is a critical step in moving women towards having truly equal access to Charter rights.

23  Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

24  Ruth Rubio-Marın and Martha Morgan, “Constitutional Domestication of International Gender Norms: Categorizations, Illustrations, and Reflections from the Nearside of the Bridge,” in K. Knopp (ed), Gender and Human Rights (Oxford University Press, 2004).

25  But see Meghan Campbell, “CEDAW and Women’s Intersecting Identities: A Pioneering New Approach to Intersectional Discrimination” (2015) 11 Revista Direito Gv, Sao Paulo 479.

26  See Dianne Otto, “Disconcerting Masculinities: Reinventing the Gendered Subject(s) of International Human Rights Law” in D. Buss and A. Manji (eds), International Law: Modern Feminist Approaches (Hart Publishing, 2005) 105–129.

27  On this, see Aili Mari Tripp, “Conflicting Agendas? Women’s Rights and Customary Law in African Constitutional Reform”, in Susan H. Williams (ed), Constituting Equality: Gender Equality and Comparative Constitutional Law (Cambridge University Press, 2009) 173–194.

28  See Paula A. Monopoli, “Gender and Constitutional Design” (2006) 115 Yale Law Journal 643–651.

29  Note that the rule of male preference succession no longer exists for the British monarchy. The Constitution of Canada recognizes the British monarch as the King or Queen of Canada. However, it is still constitutionally enshrined in other countries, including Spain.

30  2013 SCC 5, [2013] 1 SCR 61.

31  See Sonia Lawrence’s chapter in this Handbook; see also the chapter by Robert Leckey and Carol Rogerson in this Handbook.

32  Art. 170 of the Constitution of Ecuador refers to the need to ensure women’s participation in decision making in the exercise of Indigenous jurisdiction beyond the respect of fundamental rights, and art. 2 A III of the Constitution in Mexico refers to the need to ensure women’s participation under equitable conditions with men when electing Indigenous authorities.

33  On rethinking participatory gender parity in light of multiculturalism see Ruth Rubio-Marín and Will Kymlicka, Gender Parity and Multicultural Feminism: Towards a New Synthesis (unpublished manuscript on file with author submitted for Oxford University Press publication).

34  See Rubio-Marin, above (n 14).

35  Ibid.

36  R v O’Connor, [1995] 4 SCR 41; R. v Mills, [1999] 3 SCR 668. In O’Connor, the Court found that the production of private records of complainants in sexual assault proceedings had to meet certain criteria in order not to violate the accused’s right to a fair trial. Following the decision, Parliament adopted new rules for the production that aimed to limit the protection of such records in order to protect the privacy of complainants. In Mills, although the new legislation differed significantly from the O’Connor regime, the Court found that the new legislative protection was constitutional because it considered that it should give deference to Parliament’s choice to encourage the reporting of incidents of sexual violence, and to act to promote women’s equality.

37  See Lakshmi Dhikta v Government of Nepal, Writ. No. 0757, 2067, Nepal Kanoon Patrika, para. 25 (2009) (Supreme Court of Nepal) where the Supreme Court of Nepal interpreted the constitutional recognition of women’s reproductive rights as requiring the legislature to remove woman’s abortion from the criminal law and demanded the state ensure the costs of abortion procedures are not an impediment for a woman who cannot afford them.

38  Rubio-Marin, above (n 14).

39  Ibid.

40  See Bolivia, 2009. Article 62: “The State recognizes and protects the family as the fundamental unit of society, and ensures social and economic conditions necessary for their development. All members have equal rights, obligations, and opportunities”.

41  Colombia (1991), art. 69: “1) Responsible motherhood and fatherhood shall be fostered; and the mother and father shall be obliged to take care, raise, educate, feed, and provide for the integral development and protection of the rights of their children, especially when they are separated from them for any reason … 5) The State shall promote the joint responsibility of both mother and father, and shall monitor fulfillment of the mutual duties and rights between mothers, fathers, and children”.

42  Drude Dahlerup and Lenita Freidenvall (2009), ‘Gender Quotas in Politics—A Constitutional Challenge’, in Susan Williams (ed) Constituting Equality: Gender Equality and Comparative Constitutional Law (Cambridge University Press, 2009), 29–52.

43  The wave of constitutional amendments that has accompanied the spread of gender quotas in Europe includes constitutional amendments in Portugal (1997), Slovenia (2004), Italy (2001 and 2003), and France (first in 1999, and then again in 2008 when a second reform was required, to validate legislation imposing gender quotas on the corporate world).

44  Blanca Rodríguez Ruiz and Ruth Rubio-Marin, “The Gender of Representation: On Democracy, Equality and Parity” (2008) 6 International Journal of Constitutional Law 287–316.

45  Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.

46  Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

47  Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, ibid., ss 1–34. Aboriginal constitutional rights also are found outside of the Charter in the Constitution Act, 1982, ibid., s. 35.

48  Sections 5 and 6 of the Supreme Court Act. See as well the Reference re Supreme Court Act, ss. 5 and 6, [2014] 1 SCR 433 for the strict interpretation given to these dispositions.

49  Sherene Razack, Canadian Feminism and the Law: The Women’s Legal Education and Action Fund and the Pursuit of Equality (Second Story Press, 1991) 137. Razack also asked: would Charter rights enable feminists “to present various women’s realities in all their complexities?” (at 133), and would Charter litigation keep feminists focused “on a fairer redistribution of resources” (at 135) rather than on societal transformation? See for an application to Canadian jurisprudence, Beverley Baines (2005), above (n **).

50  Mary Eberts, “The Fight for Substantive Equality: Women’s Activism and Section 15 of the Canadian Charter of Rights and Freedoms” (2015/2016) 37.2 (1) Atlantis: Critical Studies in Gender, Culture & Social Justice 100.

51  Penny Kome, The Taking of Twenty-Eight: Women Challenge the Constitution (Women’s Educational Press, 1983) 17–18.

52  S. 33(1) of the Charter, known as the “override”, states: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter …”. See the chapter by Janet Hiebert in this Handbook.

53  15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

54  Froc, above (n 22) 261. See also Kerri A. Froc, The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms (PhD dissertation 2015 on-line: http://qspace.library.queensu.ca/jspui/handle/1974/13905).

55  Quebec. National Assembly Bill 63 (2008, ch. 15) became s. 50.1 of the Quebec Charter of Human Rights and Freedoms R.S.Q. c. C-12. Commentators argued s. 50.1 was to have primacy over all other Quebec Charter values including religious freedom.

56  Constitution Amendment Proclamation, 1983, S1/84–102, now Constitution Act, 1982, s. 35(4).

57  Native Women’s Association of Canada v Canada, [1994] 3 SCR 627.

58  See the Special Edition of the Canadian Journal of Women in the Law on the Missing and Murdered Indigenous Women Inquiry: Missing and Murdered Indigenous Women Conference/Symposium sur Meurtres et disparitions de femmes et de filles autochotones (2016) 2 Can Journal of Women and the Law.

59  Gwen Brodsky and Shelagh Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Canadian Advisory Council on the Status of Women, 1989) 49.

60  A.G. Canada v Lavell, [1974] SCR 1349; Bliss v A.G. Canada, [1979] 1 SCR 183.

61  Law Society of British Columbia v Andrews, [1989] 1 SCR 143 at 164.

62  Eldridge v B.C. [1997] 3 SCR 624 [61] (La Forest J.).

63  See Jonnette Watson Hamilton and Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2014) 3(1) Canadian Journal of Human Rights 115 and feminist works cited therein.

64  M. Elizabeth Atcheson et al., Women and Legal Action (Canadian Advisory Council on the Status of Women, 1984).

65  Razack, above (n 49) 137.

66  Diana Majury, “Women’s (In)Equality before and after the Charter” in Radha Jappan (ed), Women’s Legal Strategies in Canada (University of Toronto Press, 2002), 101 at 118.

67  R. v Morgentaler, [1988] 1 S.C.R. 30. This decision decriminalized abortion, leaving it subject only to provincial health laws that can regulate but not prohibit it.

68  R.B. v Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.

69  Morgentaler, above (n 67) [240].

70  Janine Brodie, “Choice and No Choice in the House,” in Janine Brodie, Shelley A.M. Gavigan and Jane Jenson, The Politics of Abortion (Oxford University Press, 1992) 115.

71  Abortion Access Now PEI v Prince Edward Island (Minister of Health) Notice of Application January 2016.

72  See the chapter by Martha Jackman and Bruce Porter in this Handbook.