IS everyone equal under the law? Using the legal system to fight gender discrimination

In less than 50 words, section 15(1) of the Canadian Charter of Rights and Freedoms describes the equality rights of those living in Canada: "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."

The Charter’s Section 28 underscores the importance of gender equality, stating, “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

Within these two brief sections of the Charter lies a vision of Canadian society in which people are treated equally, regardless of their gender. This, to put it in strictly non-legal terms, is a big deal. Especially with recent heated debates about #MeToo, the Kavanaugh Supreme Court hearing in the United States, and Alberta’s pay equity record.    

Given all this furor, is the Charter’s vision of gender equality an unrealistic utopia?  In Canada, we think of ourselves as a gender-progressive place. Just three years ago, our very own prime minister drew praise around the world when he announced a gender-balanced cabinet.

But are we truly gender-progressive?

Look at the gender pay gap. In 2016 the gap between men’s and women’s earnings was 33% (41% in Alberta), according to the Parkland Institute. Not an encouraging statistic. And then there is our culturally porous border with the U.S., where the president has been called out for confusing misogyny with locker room talk — among countless other accusations of chauvinism.

The “Trump effect” is often linked to increases in intolerance north of the U.S. border, enflaming social media battles over rape culture, body-shaming, missing and murdered Indigenous women, glass ceilings, and more. The issue of women’s equality is a complex intersection where gender meets the myriad characteristics of a diverse population, including Indigeneity, race, disability, religion and sexuality.

What can the Charter of Rights and Freedoms, and our legal system in general, do to address the gender discrimination embedded so deeply in our society?

Local influencers: leaders in change

Social psychologist Bibb Latané suggests we are most open to changing our norms when we see new attitudes modeled by people who are both local and influential. So perhaps through localized, knowledgeable influencers, the law can revise the national tale of gender discrimination.

You’re about to meet four women who are experts on the impact of Canadian laws and regulations on gender discrimination. Their work suggests that patience, determination and a practical approach can help change norms.

Law as part of a bigger cultural picture

No one ever said changing patriarchy would be easy. But surely the law is a good place to start. Two law professors at the University of Calgary suggest that the law can nudge us in the direction of gender equality. But equality laws exist within a cultural framework that has traditionally marginalized women simply because of their gender.  

“If you’re lucky, the law can push and change general attitudes a bit, as well as offering relief to individuals,” says Jonnette Watson Hamilton, a professor in UCalgary's Faculty of Law. “The problems around patriarchy are much bigger than the law. And they often overlap with other issues — those based on ethnicity and class, which can increase marginalization.” Jennifer Koshan, also a professor in the law school, says those bigger problems are tied to world views and belief systems, “which connect to the law and reinforce the second-class status of women.”

The problems around patriarchy are much bigger than the law.

But the situation is not without hope. “I’m not saying law isn’t important,” Watson Hamilton says. “The legal system can have profound effects on individual lives on a practical level.”

If Bibb Latané is right and local influencers can effect change, even in the face of competing cultural trends, then Watson Hamilton and Koshan are such agents of change. These two professors both came to the law at a grassroots level: Watson Hamilton was a partner in a firm in small-town Alberta, and Koshan was a crown prosecutor in the Northwest Territories, where she encountered many cases of domestic and sexual violence. “I saw women, including many Indigenous women, mistreated by the justice system,” says Koshan. “And this was even when — or perhaps especially when — they were victims.”

The two women have co-authored about a dozen articles on gender discrimination, on topics that are relevant to women’s lives — from residential tenancies to domestic violence, and from religious dress such as the niqab to the issue of pay equity.

Imagining pay equity

The problem of the gap in pay between men and women is one that Koshan and Watson Hamilton are passionate about. Returning to the concern that the gender playing field is still far from level, Koshan says that “at the root of pay equity is an inability to imagine women as deserving of the same kind of respect — and economic power — as men.” 

The pay gap problem is especially prominent in Alberta. According to a Parkland Institute report, Canada’s wage gap rank is the third-highest among Organization for Economic Cooperation and Development (OECD) countries. And Alberta has the largest gender income gap in Canada. Not surprisingly, the gap is larger for women who are racialized (including Indigenous women) or have disabilities.

“Alberta’s dismal standing is largely because of the oil and gas sector," says Koshan. "A lot of the work is manual labour and is compensated with higher wages.” But that social context is only part of the equation. “The legal context is that we don’t have a proper pay-equity law in Alberta,” Koshan says. “We just have a section in the Alberta Human Rights Act saying employers have to pay male and female employees the same wage for the same work — not equal pay for work of equal value.”

When a man and woman have precisely the same role, it’s easy to compare their work. For example, if a woman working as an intermediate-level marketing associate is paid less than her male colleague with the same job, she has legal recourse. But the gendering of the workplace is more complicated than this.

Take the example of food processing labour. According to the Parkland Institute, “the lowest-paid male labourer in a processing plant in Alberta earns $21.45 per hour, while the lowest-paid female labourer in the food and beverage industry earns $14.50 an hour.”

Under an “equal pay for work of equal value” system, the employer would analyze both job descriptions and pay rates, looking for any discriminatory undertones such as a tendency to undervalue “women’s work” in favor of work that is, for example, more difficult physically. The employer must ask if the two jobs, which may be different, still provide equal value to the company. Do they require comparable skills, judgment, experience, and training?

In more general terms, you might ask why child-care workers are typically paid less than construction workers. The answer lies in the fact that jobs involving “caring” are usually performed by women, and are typically undervalued. So not all labour is created (or paid) equal.

Shifting toward 21st-century pay models

Most other Canadian provinces and territories correct this fault by requiring employers to compensate male and female employees with equal pay for work of equal value. Says Koshan, “The Alberta system is very out-dated. It needs to come into the 21st century.”

In addition, women typically work a “double day,” clocking, on average, 35 hours per week of unpaid labour (e.g. household and parental tasks), whereas men will work only 17.

“So much of the challenge relates to the fact that women physically bear children,” says Koshan. “As such, women are still socially constructed as primary caregivers, so there are expectations they will stay home longer, which contributes to lower wages.”

Women are still socially constructed as primary caregivers.

Laws around pay equity can pave the way for women, but Watson Hamilton returns to the larger societal shifts needed to create an environment of equality. “You need a culture in which men taking paternity leave is not bad for their careers,” she says. “Men shouldn’t be looked down upon for taking on a role that’s considered not male enough.”

The best legal solution, according to Koshan, is true pay-equity legislation, which would place a duty on employers to implement a standard of equal pay for work of equal value. “It’s proactive, and that’s why it helps close the gender pay gap,” she says. “It requires employers to review their practices and report to a government body on how they would change inequities. It’s not just about fielding complaints from people who have already been treated unfairly — like we have in the Alberta Human Rights Act currently.”

A law blog to write home about

When Koshan and Watson Hamilton tackle a legal issue, they also like to spread the word about that issue online – it’s another way of acting as agents of change. The pair founded the highly successful, award-winning ABlawg in 2008. “The blog posts turn up in Google search results, unlike much law, and we can publish them faster than academic articles,” says Koshan. “Our posts are scholarly, and they get the attention of policy-makers and judges, as well as lawyers and litigants — who often use them as grounds for arguments.” Their pay-equity posts were read by members of the Canadian Bar Association (Alberta Branch), who then invited the pair to speak to their organization about making recommendations to the Alberta government on legislative changes.

The Supreme Court of Canada recently cited one of their colleague’s ABlawg posts, which, as Watson Hamilton notes, is “the highest of praise. The court cited it as authoritative on a legal proposition.” The blogs, then, can have a strong, immediate impact on policy. They give Koshan and Watson Hamilton a vehicle for influencing key stakeholders as the pair strives to nudge forward the Canadian ideal of women’s equality.

Taking the myth out of sexual assault

The need for nuanced understanding of laws affecting women is especially clear when it comes to issues around sexual assault.

Sexual assault is one of Koshan’s key research areas and she is often called to participate in judicial education work, giving workshops to help judges interpret complex laws. “Our sexual assault laws are good on the books,” says Koshan, “but there continue to be problems around interpretation. So, even though we as researchers and activists can advocate for reforms to the law, that’s only one part of it. We also need to engage with the judges who interpret those laws.”

With the judges who attend these sessions, says Koshan, “we look at the way myths and stereotypes are engrained in how legal actors think about sexual assault.” She addresses problematic assumptions about sexual assault, such as:

• She asked for it
• Rape is only rape if it’s done by a stranger
• She didn’t complain right away
• A husband can’t rape his wife
• She was intoxicated and was more likely to consent

Educating judges on interpreting sexual assault laws is not the only way Koshan acts as a local influencer. She also translates her knowledge of the law into a practical, online resource for those who provide public services for victims of domestic violence. This new website is set to launch in mid-2019, says Koshan. It's designed to give people who work at shelters or immigrant agencies “information at their fingertips, so they can give the best possible support, and advise on resources.” The website, which is funded by the Social Sciences and Humanities Research Council of Canada (SSHRC) and the Law Foundation of Ontario, will also give information on employment laws, family laws and tenancy laws as they relate to domestic violence, to name a few. “It’s a bit of a moving target,” Koshan says, “because the legal landscape changes so quickly, so we will need to keep updating the website.”

Home is where the peace is: residential tenancy and domestic violence

One of the most widely read ABlawg posts of 2017 unpacked an issue of late payment charges around tenants’ rights. “It got over 2,000 visits, as many as posts about climate change and sexual assault cases,” says Watson Hamilton, “indicating the impact of a seemingly mundane landlord and tenant topic.”  She adds that “if we look at residential tenancy issues for women, you can see why they are so important to gender equality — particularly for women oppressed by domestic violence.”

Why is residential tenancy law so important to women with abusive partners? Imagine that you live with an abusive partner in an apartment you rent on a one-year, fixed-term lease. If the abuse escalates and you decide to leave your partner two months into the lease, you will remain liable to pay rent to the end of the year.

Financial pressures are one of main reasons women stay in dangerous situations.

“That is a whole lot of money for most women,” says Watson Hamilton. “Plus, in a year-to-year lease the law requires you to give at least three months’ notice. This is not acceptable. Financial pressures are one of main reasons women stay in dangerous situations.”

Enter Bill 204, the Residential Tenancies (Safer Spaces for Victims of Domestic Violence) Amendment Act. Enacted in 2016, the bill makes it easier for victims of domestic violence to leave an unsafe rental home in Alberta.

“Now,” says Watson Hamilton, “victims can get a certificate from the provincial government confirming their domestic abuse, and they can get out of a lease early.”

The implementation of Bill 204 demonstrates that law reform is possible. But those affected by domestic violence still find themselves in precarious situations in rental homes. For example, a landlord cannot terminate the tenancy of just one tenant. In other words, the landlord can’t just take the violent partner off the lease — and neither can a court. If one person goes, everyone goes. Women, children — everyone is out the door unless they can reach an agreement with the landlord about a new lease.  

In writing about residential tenancy laws, Watson Hamilton helps create a more nuanced understanding of laws that may seem relatively mundane, but that have profound effects on vulnerable women.

Defining success in gender equality

Rapid change is the nature of the law. Relying on the few words in section 15(1) of the Charter of Rights and Freedoms has its drawbacks, particularly since gender discrimination issues are so complicated. As Koshan says, “All these issues are connected — pay equity, residential tenancy issues, domestic violence, and sexual assault. They’re all part of systemic discrimination against women.”

And section 15 is finally having a positive impact on women’s equality. Koshan and Watson Hamilton cite their recent paper about two 2018 Supreme Court decisions on pay equity. “They were the first cases where a majority of the Supreme Court gave reasons to find in favour of gender equality under section 15 of the Charter,” says Koshan. “This was the first win at the Supreme Court based on gender discrimination, brought by women, since 1985.” Even then, the court was deeply split on the rulings.

Perhaps, then, the law can but nudge Canadians toward gender equality. But Watson Hamilton and Koshan are optimistic about the long-term picture. “There is still lots of work to do,” says Koshan. “But then I think about our law students. I think we help instill in them the values of equality and human rights. So teaching makes me hopeful.”

Dressing down dress codes

Advocating for gender equality and human rights in a different set of classrooms is Dr. Dianne Gereluk, PhD, professor in the Werklund School of Education at the University of Calgary. One of her areas of interest is the contentious issue of school dress codes. Like her colleagues in the law faculty, Gereluk performs research that extends beyond the theoretical realm, offering practical counsel for communities around her. She, too, is a local influencer.

Stories about dress codes show up on social media feeds as regularly as #MeToo posts. In October, 2018, an Ontario school principal opened the door to a grade 12 classroom and asked all the girls to stand as he and a vice principal measured the length of the girls’ kilts. The girls later said they heard the principal referring to the #MeToo movement and telling the girls they were putting the males in the school in an awkward situation.

It doesn’t take much of an imagination to picture the girls, standing in front of all the boys, as the principal bends with a tape measure among bare knees and calves.

95% of dress codes use gendered language.

The Ontario school story demonstrates the discriminatory tendencies of dress codes. “I would say 95% of dress codes use gendered language,” notes Gereluk. Dress codes often focus on clothing that is described as provocative, distracting, and revealing. “They single out girls for their appearance,” says Gereluk. “On a fundamental level it’s the erosion of equality rights and self-expression, and an erosion of the girls’ feelings of self-worth. Plus the obvious body shaming.”

Using the power of shame for good

Despite the prevalence of discrimination in school dress codes, Gereluk remains optimistic. She feels the Ontario kilt-measuring incident actually demonstrates a positive shift.

One of the girls is quoted in a Yahoo Lifestyles article, speaking about her principal’s gendered comments: “We’re underage females in a Catholic school — why is that comment being made by someone of authority?”

In this response from an Ontario girl is hope for the future. “These girls are able to articulate the shamefulness they experienced,” says Gereluk. She attributes this new vocabulary, at least in part, to the #MeToo movement and LGBTQ rights advocacy. “What we’re seeing is an increasing awareness of systemic forms of discrimination and gender bias,” says Gereluk. “That’s significant. It’s enough to make me feel cautiously optimistic.”

Dress code violations, linked as they are to gender identity, also have a major impact on LGBTQ youth, and Gereluk has seen these impacts play out in Calgary. “A private independent school had a student who was transitioning from male to female and wanted to wear the girls' uniform,” explains Gereluk. “But the school said no — even though this would have been in compliance with their rules. The school saw it as a reputational risk, because of how the situation would be seen by the external community.” For children already wrestling with their identity, dress codes can add another layer of gender-based trauma to the classroom experience.

The naked truth on clothing

Gender biases are deeply embedded in educational cultures. “Research shows that you might have rules for both boys and girls,” says Gereluk, “but it’s the girls who are actually called out on it.” Gereluk also says there's no research to suggest that clothing affects learning outcomes.

Dress codes may in fact be more of a cloak than a learning facilitator. “They tend to hide larger issues that are uncomfortable to talk about,” says Gereluk. “Focusing on clothing gives us an easy way to curtail views that are not part of our society’s collective norms.”

The dress code issue points toward a need to progress beyond feelings of shame for our bodies. “We need to decide it’s okay to talk about sexuality,” says Gereluk. “Why see it as scary? Why don’t we see it as miraculous?”

So being open about sexuality is part of the solution. But Gereluk also recommends getting to the root of the clothing issue. “We should be talking openly about the rationale for dress codes. What is the school environment you want to cultivate? What are the philosophical principles that guide the dress code? What does it mean to treat others with respect?” Those discussions might make it easier to uphold a code.

Gereluk suggests the example of Evanston Township High School in Illinois. “Their code is so simple," she says. "It’s basically, 'we don’t want to see nipples, buttocks, or genitalia exposed. Period.'”

Keeping the dress code simple might reduce the need for policing and measuring — which leads to hard feelings and discrimination. Gereluk recommends a focus on keeping children safe and included. In one Calgary school, the change in uniform policies shifted in two ways, attending to gender identity and religious accommodations.  The uniforms shifted away from gender norms and simply required students to choose from each of the four categories (tops, bottoms, blazer/cardigan, tie), allowing for agency in students’ own identities.  Similarly, a statement that religious accommodations would be provided upon request assured parents they could be invited into such a conversation.

Parents, after all, have a role to play. “They should be having thoughtful conversations with their kids about what they should wear to school,” says Gereluk. “And how do you attend to basic etiquette? For example, you wouldn’t wear the same thing to a dance as you would to your grandmother’s birthday.”

Putting women in public office: visions of a just world

There are other, more global, reasons to feel optimistic about gender equality. University of Calgary Distinguished Alumna Award recipient,  Anar Simpson (BSc'86, MCS'01), a global advocate for women’s inclusion in the technology industry, works on a project called the Global Women’s Leadership Initiative Index (click to see how Canada rates on gender parity in public office — hint: our standing is relatively strong). The index is part of the Women Public Service Project, which aims to increase the percentage of women in public office to 50 percent by 2050 – a goal they’ve titled: “50x50.”

Simpson feels strongly about getting women involved in public office. “We need to bring women’s voices, experiences and problem-solving skills to all levels of decision-making. And these positions need to have power: budgets and agenda-setting influence that are comparable to men’s, as well as a role in creating or vetoing legislation — without which parity cannot be achieved.”

 

After the US midterm elections on November 7, 2018, Simpson feels particularly hopeful about the 50x50 goal. “The results show we are moving in the right direction,” she says. Getting women to participate in government can help solve gender discrimination issues, and can help the law nudge us even further toward equality. “When both genders have an equal opportunity to influence their individual development and that of their communities and societies,” says Simpson, “we can live in a more just world.”

Influencing hope

So despite the contingent nature of the law and the indelible nature of gender bias, all four of our influencers find reason to hope. And by reaching out to their communities — from lawyers and judges to schools and governments — women like Koshan, Watson Hamilton, Gereluk and Simpson help stem the flow of discrimination in courts, classrooms and beyond.

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ABOUT OUR EXPERTS

Jonnette Watson Hamilton is a professor in UCalgary's Faculty of Law. Her research areas are discourse analysis, equality rights, property law and theory, and access to justice. Read more about Jonnette

Jennifer Koshan is a professor in UCalgary's Faculty of Law. Her research interests are in the areas of constitutional law, equality and human rights, state responses to violence, feminist legal theory, and public interest advocacy. Read more about Jennifer

Dr. Dianne Gereluk, PhD, is a professor in UCalgary's Werklund School of Education. Her research examines normative aspects of educational policy and practice specifically related to politically contested and controversial issues in education. Read more about Dianne