In a pair of cases, the Canadian Supreme Court found that provisions of the equal pay regime, a statutory limit on back pay and delayed implementation of methodology for correcting equal in female dominated industries, were a violation of section 15 of The Charter. Yet only one of these provisions was ultimately held to be unconstitutional. This is because the Court concluded that the state was justified in taking years to guarantee equal pay in the context of gender occupational segregation. There is an unspoken assumption that to harness the power of law and courts the key struggle is to advance a transformative model of equality. In both of these cases, the Canadian Supreme Court did used a robust model of equality to analyse how the law entrenched disadvantage. The diverging outcomes stand as a warning that focusing on the breath and scope of equality only examines half of the story, justification, the other half, plays a determinative role in maintaining or dismantling women’s inequality.
Judgments on women’s equality often run hundreds of pages, yet the analysis on whether breaches are constitutionally justified is cursory often only amounting to a handful of paragraphs. The relationship between women’s enjoyment of equality and justification is overlooked, understudied and undertheorized. My new monograph, Hanging in the Balance: The Function of Justification in Achieving Women’s Equality, seeks to fill this gap.
Glancing through the jurisprudence, it is possible to identify how gender assumptions start to infiltrate limitation rationales such as prejudices against women in poverty, beliefs that gender-based violence has no economic impact or that women need to be protected from the harsh realities of combat. Or oddities, where courts are tasked to balance the harms of violating women’s rights against the benefits of the competing public interest aims but confusingly substitute this balancing with an analysis of the state-of-play of international human rights law. Justification reasoning also slips into the determining whether there has been a breach of women’s equality rights with courts concluding that because the law has a legitimate or ameliorative purpose, such as protecting individual agency to enter marriage, it cannot violate women’s equality rights.
The jurisprudence thus raises a whole host of questions. Does justification shape how courts determine whether there has been a beach of women’s equality rights? And if does, should it play this role? Are justification frameworks inherently able to identify gendered assumptions that are embedded in limitation rationales? Are more probing, high intensity justification tests more suited to limitations of women’s equality? Or is it dangerous to utilize a high intensity justification review as it unduly narrows the leeway needed for the state to pursue public interest aims that conflict with women’s right to equality? Are certain justification tests, such as proportionality, better suited to assess limits on women’s equality? Can equality guide or enrich the justification assessment? Perhaps, what is required is a methodological shift to justification that cuts across the application of limitation criteria? Unravelling these questions brings to the fore unseen complexities, deeply embedded gendered value assumptions, nearly invisible patriarchal structures and rival visions of the court, the executive, and the legislative branches of government.
The monograph makes three central claims that all centre on women’s substantive equality and unlocking its positive role in justification. First, equality should ring-fence determining whether there has been a breach of the right. Determination of whether there has been a breach of women’s equality should be conducted without any reference to justification as justification concepts and reasoning, at this stage, hide and downplay the severity of women’s inequality. Second, equality should guide the justification analysis.
To ensure the justification-stage accurately captures the reality of gendered equality and to fully respects the constitutional importance of women’s equality rights, courts should deploy to a high intensity review to any claims that it is permissible to limit women’s equality. And third, equality operates to enrich justification. Rather than adopting a whole new framework for assessing limits on women’s rights, equality should enrich the application of limitation criteria. This means that courts should explore whether a limitation is sufficiently legitimate, rational, necessary or balanced by bringing the limitation into a relationship with the underlying breach of women’s equality and each limitation claim can be examined within the broader context of women’s equality. For example, is it justified to prohibit women’s employment in hotels and bars to protect them from being exploited at work? Testing the limitation in a relation to the breach of women’s equality in employment and against a contextual backdrop of gendered activism would enrich the justification-stage. It would expose illogical assumptions in the justification claim on the availability of better forms of work and uncover how the limitation arguments were entwined with negative gendered cultural stereotypes on women who working in hotels and bars. Enriching justification in this manner adopts established feminist methodologies and takes the novel step to extend and adapt them to the limitation analysis.
This guiding and enriching function does not require courts to inappropriately cross institutional boundaries or competencies but only requires courts to squarely apply accepted justification criteria in a searching manner. Nor does it foreclose limiting women’s equality, it simply requires that justification be of a high degree of accuracy, cogency and persuasiveness. But the ring-fencing, guiding and enriching relationship between equality and justification ensures that any limits imposed are not illogical, implausible, unfair or rooted in patriarchal attitudes and systems.
Dr Meghan Campbell is a Reader in International Human Rights at Birmingham Law School
Discover more from Doing Feminist Legal Work
Subscribe to get the latest posts sent to your email.