The campaign for women’s rights exemplifies the changing and contested nature of rights. The process of state formation included the unequal treatment of the nation’s female citizens, which was pervasive and entrenched in law. Women were denied the right to vote and were unable to become legislators, coroners, magistrates, or judges; they were also unable to sit on juries. They lost more than their last name when they married: they lost all status in civil law and could not own property or keep their own wages. In 1905 a Supreme Court judge in New Brunswick, reflecting on the role of women in society, explained that “the paramount destiny and mission of women are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.” Yet women were denied custodial rights over children. Also, criminal law was rife with double-standards. In the case of divorce, for instance, men had only to prove adultery whereas women had to prove adultery as well as desertion without reason, extreme cruelty, incest, or bigamy. Marital rape was unknown, not because it never happened but because it was not against the law. Discriminatory laws touched on almost every aspect of women’s lives: birth (infanticide), childhood (maintenance, child custody), work (labour laws, professions), courtship (seduction, marriage), sexual relations (rape, prostitution), marriage (property, citizenship, naming), parenting (maternity leave, abortion, adoption, legitimacy), divorce or separation (maintenance, child custody, pensions, desertion), and death (inheritance).
There were currents of liberal rights discourse within first-wave feminism. Many reformers framed their demands for women’s rights—most notably the right to vote—with reference to British liberties and secured new rights for women. In the early twentieth century, the first women were elected to public office, appointed as judges, and joined professions such as law. They participated in the workforce in greater numbers. Legislative reforms allowed married women to keep their wages and own some property separate from their husbands. Minimum wage laws were passed, and the law recognized some minor custodial rights for mothers. By the 1920s, after a campaign that mobilized masses of people across the country, women had secured the right to vote in most jurisdictions. In 1929 a group of women led a successful challenge to the Judicial Committee of the Privy Council in London against the presumption that references to “persons” in the constitution included only men (an interpretation that was used to ban women from sitting in the Senate). Throughout these campaigns, reformers insisted that the laws and practices that discriminated against women were aberrations of British justice. These precedents were necessary first steps before women could begin to mobilize around demands for women’s equality.
Similarly, the federal Royal Commission on the Status of Women reinvigorated the women’s rights movement. The commission’s groundbreaking report in 1970 identified a host of laws and policies that discriminated against women. By 1977 the federal government had implemented over 80 percent of the report’s recommendations. For example, the 1974 federal Statute Law (Status of Women) Amendment Act removed discriminatory provisions in immigration, pensions, unemployment insurance, elections, and citizenship. More importantly, the report energized the movement. Throughout the country, social movement organizations proliferated, as did Status of Women Councils. Vancouver Status of Women, for instance, was created in 1970 and quickly became one of the largest and most active social movement organizations in the country. VSW’s activism included documenting cases of discrimination and drawing attention to sexism in the media; producing surveys and conducting research on issues such as equal pay (e.g., documenting employers pay scales); launching letter writing campaigns at employers who discriminated against female employees; sending volunteers to employers to discuss hiring and management practices; organizing conferences on human rights; creating an ombudswoman position to assist women who were filing human rights complaints; and lobbying government departments and school boards on policy issues such as gender stereotyping in textbooks. There had been only a handful of women’s rights organizations by the late 1960s; by the end of the 1970s, there were nearly three hundred organizations in British Columbia dedicated to pursuing gender equality.
Human rights legislation evolved largely in reaction to particular circumstances. Except for British Columbia’s reasonable cause provisions, these laws were designed to respond to specific types of discrimination. An intersectional analysis recognized that reducing discrimination to one factor, such as sex, failed to account for how some individuals experienced discrimination. Someone might be discriminated against not because she was a woman or a person with a disability but because she was a woman with a disability. Discrimination might also arise as a result of stereotypes associated with the intersection of race and gender. Human rights law, however, defined discrimination through a list of independently enumerated grounds that had been incorporated ad hoc over many years. Adjudicators were encouraged to examine a case through a single ground at a time, and complainants had to define themselves in narrow terms. The problem was not merely academic: it had profound real-life consequences. Nitya Duclos surveyed federal human rights cases from 1994 to 2004 and found a shocking underrepresentation of racial minority women. Moreover, human rights law was not criminal law, and its primary purpose was not to punish. Instead, the hope was that victims would benefit from having their grievances acknowledged and that the perpetrators would accept that their behaviour had been discriminatory and change their practices. Sexual harassment cases, for example, involved not only determining what happened and where, but also why it happened, the motivation, and the nature of the harassment. Duclos cites a case involving a teenage East Asian woman who complained about sexual harassment while working at a grocery store. It was probable that the harassment derived partly from the stereotype that Asian woman are passive. However, an investigator who did not consider the intersectionality of race and gender might determine that there was no sexual harassment if no evidence was found that the accused harassed the other (white) women in the store. In such situations, it is essential to consider racial and sex discrimination as interrelated.
In Alexander v British Columbia, an Aboriginal woman was refused service at a liquor store because the owner thought she was drunk when, in fact, she was partly blind and had a mobility impairment that gave the impression of intoxication. A human rights tribunal ruled that she had been discriminated against on the basis of disability; it rejected the allegation that the discrimination was due to her race. If Alexander had claimed only racial discrimination, would her case have failed? Similar inquiries might misunderstand the causes of discriminatory acts or the nature of the harm, remedies might be affected, victims might be forced to frame their complaints in ways that did not reflect their actual experiences, and the case might be dismissed because adjudicators had failed to account for the underlying cause. A landlord, for instance, might rent apartments to black people and white people but refuse to rent a unit to an interracial couple. It would be easy to dismiss the case unless the adjudicator considered the intersection of sex and race as the underlying cause of discrimination. In effect, traditional approaches to human rights adjudication sometimes misunderstood the nature of the violation and reinforced dominant norms. Human rights law needed to define discrimination as a set of relationships instead of viewing it in terms of a single immutable characteristic. For this reason, in 1998, the Canadian Human Rights Act was amended to expand the definition of discrimination to include an intersectional analysis.
As Martha Minow explains, “each person is alone at the unique crossroad of each intersecting group. Each of us is a unique member of the sets of endless groupings that touch us, whether called racial, gender, disability, family, ethnicity, or nationality.”
Diane Pothier offers a personal narrative to more fully explain this point. Pothier, “Connecting Grounds of Discrimination.” As Nitya Duclos notes, “it is not hard to see that stereotypes arising from particular combinations of race and gender are often the source of the discriminatory treatment that gives rise to the complaint … Stereotypes which combine race and gender are common to everyday experience. Race and gender are equally apparent and, together with other visible characteristics, are likely to form part of our initial generalizations about people. It is only when one becomes immersed in the world of law that race and gender are extracted from the whole person and become mutually exclusive categories of discrimination.”
“This notion [intersectionality] refers to the way in which any particular individual stands at the crossroads of multiple groups. All women also have a race; all whites also have a gender. The individuals stand in different places as gender and racial politics converge and diverge. Moreover, the meanings of gender are inflected and informed by race, and the meanings of racial identity are similarly influenced by images of gender.”
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