Vol. 13 No. 5 (May 2003)
WOMEN’S LEGAL STRATEGIES IN CANADA, by Radha Jhappan (Editor). Toronto: University of Toronto Press, 2002. 407 pp. Cloth $85.00. ISBN: 080200721X. Paper $35.00 ISBN: 080207667X.
Reviewed by Lauren Bowen, Department of Political Science, John Carroll University. Email: bowen@jcu.edu.
The organizing question of this edited volume is whether women should persevere with legal projects despite their dangers. Using Canada and the 1982 Charter of Rights as the contexts within which to answer this question, the contributors to this edited collection all answer with a qualified yes. As the editor notes early in the volume, the book is guided by the assumption that “despite its pitfalls for different women, law is an important (though often ‘malevolent’) site for feminist struggle” (p.13). Because the law can create, reinforce or at least fail to intervene in inequality, the ways in which the law exerts its power has concrete consequences for women. Thus, while much of the volume is devoted to offering critiques of feminist legal strategies employed, the contributors conclude that to ignore legal attempts to effect change would be counterproductive to the pursuit of justice for all women living in Canada.
Before turning to the individual chapters, let me make a few general observations. The book is situated in legal literature rather than political science scholarship. More specifically, the intended audience of the volume seems to be the Canadian legal left. As the editor notes, much of the legal left has been vehemently critical of the 1982 Charter of Rights and has scorned women’s resort to law (p.14). Accordingly, while many of the contributors seem impatient with the organizing question of the book as the answer is obviously “yes” in their view, they also have an apparent need to persuade critics. Many of the contributors clearly understand themselves to be part of the Canadian legal left as well and are sympathetic to many of the criticisms of legal strategies. Still, for the most part, they view legal activism as a necessary evil.
As a consequence, the volume often reads as a justification for legal intervention although the authors are clear to note the limits of that intervention given the existing legal structures and barriers to meaningful change. It is an interesting, and somewhat surprisingly, an ultimately successful juxtaposition. The authors acknowledge and accept much of the analysis offered by the critical legal studies (CLS) movement but are less persuaded by the political prescriptions offered by CLS scholars. The question for the contributors to this volume is not whether the law produces social transformation, but rather what will happen if groups committed to that transformation opt out of the legal arena given that ongoing litigation will influence the society.
While critical of the prescriptions offered by CLS scholars, the contributors are nearly uniformly critical of the legal strategies currently used by feminists in Canada as well. The most frequently cited illustration of the flaws in feminist legal strategies utilized in litigation since 1985 is LEAF (Women’s Legal and Education Action Fund). The primary criticism of LEAF—much like criticisms leveled against the National Organization for Women’s Legal Defense and Education Fund in the U.S. context—is that rights discourse is used to reinforce power and privilege. Because rights are universal, those with privilege can claim them as well. The tendency among LEAF lawyers to proceed from fundamental assumptions about women’s shared experiences and subjugation abstracts the reality of oppression for most women and tends to render the quest for equality an attempt to acquire the same privileges that too many men enjoy. To that point, several of the authors use as an illustration the case of SYMES v. CANADA (1993) where one of the founding LEAF members argued that the cost of her full time nanny should be a business deduction when filing her income tax return. The situation and exploitation of the nanny was not relevant to the case, suggesting—within the framework for analysis of this volume—that gender equality was to be understood in largely white and middle class terms. Indeed, all contributors approach their definition of feminist as being rooted in women’s daily life experiences. This approach leads to an emphasis on justice, rather than legal equality, and the need to acknowledge the intersection of race, class, age, and the like.
Yet the criticisms of LEAF are tempered by respect and affection. It is clear that LEAF has been at the forefront of achieving gender equality within the law since the Charter of Rights was promulgated. The Canadian Supreme Court has responded in LEAF’s favor in seventeen of the twenty-three cases in which they have participated. Without LEAF, the legal status of women in Canada would presumably be less than it currently is. Further, LEAF has sought to be more inclusive of the diversity of women’s experiences in recent years. And yet, the claims advanced by LEAF too often seem to perpetuate racial and class divisions. Whether that is a function of LEAF’s strategy or the structure of the society is considered in several of the chapters.
The volume then is situated between the practical and liberal approach of LEAF and the not so practical and socialist perspective of CLS. These scholar/activists want to acknowledge and appreciate the ways in which oppression is embedded in societal and legal structures; they also want to argue that the challenges are not intractable and that legal change, while working within existing structures, is still necessary and worthwhile.
The second chapter, “Feminist Movement in Law: Beyond Privileged and Privileging Theory,” is part of the introductory section, entitled “Why Do Law?” Written by Sheila McIntyre, an activist and law professor, the analysis is framed not in terms of whether the law can be instrument of social change but whether the advocate can be accountable to the constituencies of women she seeks to serve. She argues that LEAF is a radical entity that among other things challenges the public-private distinction. Moreover, she is critical of academic feminism as too often replicating privilege on the basis of class and race. She is much more supportive of what she calls community-based feminist activism that seeks to examine women’s daily lives. Her most interesting case study refers to the Department of Justice’s consultations on violence against women held annually from 1994-1997. “They offered,” she writes, “the optimal model of principled, accountable, democratizing feminist legal activism” (p.79). All this is to suggest that the progressive left too often legitimates the system. The process of change is not sufficiently inclusive or democratic to translate into meaningful change. As she notes on p.66, “hegemony authorizes the inconsistency (in not being able to move from substantive political principle to substantive egalitarian practice) while privilege explains it.” She concludes by suggesting that the animating principle in feminist legal activism to end male violence against women is an alternative strategy worthy of more attention.
The second section of the book is devoted to equality strategies. In Chapter 3, Diana Majury, a law professor at Carleton, argues that the “promise of equality lies not in its universality but in its potential for particularity” (p.103). In “Women’s (In)Equality Before and After the Charter,” she provides a nice historical overview of the 1960 Canadian Bill of Rights and its interpretation. She notes concern that Section 28 of the 1982 Charter, guaranteeing gender equality, is largely symbolic. Still, she maintains that it is anachronistic to debate whether the charter represents progress or a tool of domination. The language of the charter should be used to effect real material change. She notes the challenges of this, however, as she acknowledges that the discrimination and inequality woven into women’s daily lives is unrecognizable and incomprehensible to those in dominant positions. So, while there are significant challenges to legal change, she concludes that there is no inappropriate place for addressing equality issues. Legal arenas, then, should certainly play host to feminist struggles.
In Chapter 4, Lise Gotell, a women’s studies professor at the University of Alberta, argues that a feminist demand issues from the experience of subordination and seeks to address gender domination. In her chapter, “Towards a Democratic Practice of Feminist Litigation?: LEAF’s Changing Approach to Charter Equality,” Gotell is critical of LEAF’s litigation strategy, arguing that it universalizes and abstracts women’s experiences and accepts the Enlightenment premise that Truth will supplant power (pp.139-140). Accordingly, social problems are stripped of their complexity, and because of judicial resistance to intersecting analyses, there is an even greater need to tell more complex stories. She concedes that LEAF has shifted its equality discourse over the years, and she steadfastly maintains that LEAF is a significant and meaningful agent for change. As she notes, however, “(t)he importance of LEAF’s work should never mean that it be insulated from feminist criticism” (p.164). She further suggests that feminist criticism is partially responsible for the more nuanced positions on behalf of women advanced by LEAF in the 1990s. She is cautiously optimistic that such feminist legal strategies can successfully unsettle the legal foundations currently in place.
“The Equality Pit or the Rehabilitation of Justice” is authored by the volume’s editor, Radha Jhappan. Building on previous chapters, Jhappan argues that an emphasis on equality is misplaced and that feminist legal activists would be better served framing their claims in terms of justice. Building on Gotell’s analysis, Jhappan convincingly posits that, although it is essentialist, LEAF’s increasingly contextualized approach may be unavoidable in constitutional terms. As she notes on p.191, the equality frame is too narrow to contain complex intersectional analysis, because it is by nature comparative (comparing groups to one another) and thus essentialist. Her point is well-taken that justice should not be the only goal; nor can justice simply replace equality in our language. Jhappan uses several case examples effectively to illustrate her position that the equality frame discourages analysis of fundamental structures—like colonialism in the case of the rights of indigenous people in Canada, and the costs of citizenship for gays and lesbians denied spousal benefits.
The third section shifts attention to race and citizenship to demonstrate the weaknesses of the equality framework with all its essentialist assumptions. In perhaps the volume’s most compelling chapters, these authors argue that “racialized women are among the many equality-seeking communities whose perspective have been absent from conceptual frameworks relied upon by Canadian courts when defining rights” (p.296). In “Negotiating the Citizenship Divide: Foreign Domestic Worker Policy and Legal Jurisprudence,” Daiva Stasiulis and Abigail B. Bakan document the human rights violations experienced by women from developing nations who are imported to provide personal domestic service. There is a tremendous gap between immigration policy and rights legislation. Much litigation is premised on a liberal model of individual autonomy and responsibility and is blind to an international political economy that drives women to leave their families and to endure years of servile labor overseas. While Canadian courts have been somewhat sympathetic, their rulings have not led to expanded substantive rights of domestic workers as a class. The authors note with some irony that when the issue of child care provided by live-in nannies reaches the Canadian Supreme Court, it is about sex discrimination for the female employer of the domestic—seeking tax relief on the rationale that paying a caregiver is a business expense—and not about the rights of the caregiver.
In Chapter 7, “Beyond the Confinement of Gender: Locating the Space of Legal Existence for Racialized Women,” Joanne St. Lewis contends that feminist legal theorists must apply the expertise and perspectives of racialized women in arguments they present to the courts. In particular, these perspectives can add new insights into the role of the state and the effects of colonialism in a contemporary context. This means that litigators should approach cases from a critical historical perspective. One could assess, for example, the ways in which past colonialism has contributed to current racist practices. Another example would be the strategic use of expert testimony and academic literature to consider how power constructs knowledge. Strategies beyond the courtroom should be considered as well in order to further the discussion about racism (p. 323).
The final section of the book is devoted to family and reproduction. In “Abortion Litigation,” Sheilah Martin suggests, in keeping with the tenor of the volume, that law has a role in the empowerment of women (p.353). That role is important, multi-faceted but ultimately limited. Focusing on the issue of abortion, Martin, a law professor, acknowledges the limits of legal reform. The Supreme Court of Canada decriminalized abortion in 1988 in the MORGENTALER case. Martin asserts that the decision had positive consequences, both in direct benefits and symbolic gains for women. Performing or having an abortion was no longer a criminal act, thereby “chang(ing) the life circumstances of all women in Canada regardless of their politics or personal preferences” (p.342). Still, the case had its limitations as the three separate opinions did not provide clear guidance to lower courts faced with interpreting the decision. These limitations, of course, are not unique to feminist issues and raise the larger question of the efficacy of courts to effect social change. As do the other contributors, Martin contends that a variety of approaches is needed to challenge inequality effectively. Litigation should not be embraced as a cure-all (p.354), but rather multiple routes to equality should be pursued simultaneously and aggressively (p.355).
In the final chapter, “Legal as Political Strategies in the Canadian Women’s Movement: Who’s Speaking? Who’s Listening?” Susan Phillips concludes that litigation can be used to enhance the political objectives of a social movement. Citing a variety of examples, including the woman professional seeking to deduct the salary of her nanny as a business expense (in SYMES mentioned above), the demise of a national child care policy, and the Canadian Panel on Violence Against Women, Phillips demonstrates that while these may not be considered legal successes, they still were influential. In subtle ways, the litigation emerging from these issues has altered the political discourse. Indeed, Phillips concludes that the greatest benefit of litigation is “its capacity to (re)frame issues in ways that convey new meaning and carry political momentum that will help to effect change through other channels” (pp.398-399).
In sum, all these chapters converge to provide a rich analysis of feminist legal strategies in Canada over the past twenty years or so. While all the authors support the use of the law to effect social change, they all argue for a less essentialist approach to remedying oppression on the basis of gender. The suggestion that justice replace equality in more than mere nomenclature resonates throughout the volume. Many case illustrations demonstrate the dangers of using the equality frame to compare men and women. Indeed, equal treatment of women and men often can miss the point of the feminist left. Men can be oppressed on the basis of race, class, as well as sexual orientation. To suggest that women can be treated the same misses the point, of course.
However, as I noted at the outset, criticisms of the equality framework are not intended to denigrate the efforts of organizations like LEAF. Instead, they are provided to accomplish two objectives. The first is to suggest practical ways to build on past successes so that the particulars of individual women’s experiences can inform the law. Secondly, the contributors want also to bring attention to the ways that existing structures shape and limit the possibilities for change.
Neither of these insights is terribly new or innovative. Still, the ideas are sufficiently significant to bear repeating. The Canadian context adds a dimension to the analysis that is quite helpful to an academic audience that is perhaps most familiar with U.S. examples. It is not a text appropriate for an undergraduate audience but might be worth assigning in graduate seminars devoted to judicial capacity or law and society more generally.
CASE REFERENCES
SYMES v. CANADA (1993) 4 S.C.R. 695
*********************************************************************
Copyright 2003 by the author, Lauren Bowen.