Personal Reflections: Cultivating Gender Equality

Prof. Lorraine Weinrib

From the Spring/Summer 2006 issue of Nexus.

I think that anyone who lived my life would have developed a strong commitment to gender justice. My legal education, articling and initiation into the legal profession took place in the 1970's. This period predated recognition of the "glass ceiling" - the metaphor that crystallized the exclusion of women from the highest ranks of academic, professional and business opportunities. As I recall those bittersweet years, it was as if some doors in a long corridor were opening while others remained firmly shut. When I entered the profession, the term "lady lawyer" was commonplace and, to many in the legal profession, oxymoronic.

Initially, I found all this mystifying. I was a novice, having never experienced disadvantage or reduced status based on gender. (I should add "knowingly"; but that is another story…) Patriarchy was the distracting elephant in every corner of the law school. It later became an intermittent irritant in my professional training and, later still, my experience in practice as well.

The outsider's experience is often painful, humiliating and debilitating. Gender hierarchy is particularly frustrating because of its many facets. Over a few years, I experienced the full range of possibilities as a single woman, a married woman, a pregnant woman and, eventually, as a mother of three.

During these personal transitions, I built a career as a specialist in constitutional law in the Ministry of the Attorney General of Ontario. My work included advice, policy and litigation at the highest levels. As if my personal and professional trajectories were not sufficiently challenging, my area of expertise also shifted ground with the deliberations leading to the drafting, adoption and implementation of the Charter. This extra burden turned out to be my salvation. Charter policy and litigation integrated the personal, political and professional strands of my life.

My personal experience of gender difference afforded me distinct advantages from the first moment that the Charter hit my desk. I had no difficulty imagining a legal universe based on rights. Indeed, nothing seemed more natural. With the perspective of an outsider to the existing system, I welcomed the opportunity to learn about and develop the reasoning modes entailed in purposive interpretation and proportionality analysis, with reference to theory, comparative material, as well as social science data and expertise.

When I started my specialization in constitutional law, I became fascinated by the sole endorsement of gender equality in the corpus. In his reasons for judgment in the famous Persons Case, in 1930, Viscount Sankey set out the root of the gender problem as well as its solution:

"Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared."

Sankey's narrow concern was the meaning of the word "persons" in the Constitution Act, 1867: could the Canadian government appoint women to the Senate? Instead of parsing the word through the lens of history and privilege, Sankey staged a constitutional revolution. In a few imaginative steps, he demonstrated how to read Canada's constituent statute as a modern constitutional instrument.

His first move was to dismiss the traditional modes of legal analysis, such as the binding authority of original intent and tradition. He then took direction from the Interpretation Act, a precursor to guarantees of gender equality, which presumed gender neutrality in statutory interpretation. He also distinguished legal precedents that too readily excluded women from engagement in public affairs.

Having cleared the legal underbrush in this way, he deftly shifted the onus. The word "persons", after all, was gender neutral. What cogent arguments had the government produced to undermine women's qualifications for this office? In a few historic paragraphs, Sankey's elevation of reason over custom anticipated the substantive and institutional structure of the Canadian Charter and, by extension, modern rights-protecting instruments generally.

Sankey illuminated the possibility of liberating constitutional analysis from the heavy hand of precedent, conservative values and entrenched privilege. He invoked the image of a living tree to encapsulate the idea of an organic, remedial and transformative instrument capable of responding to challenges grounded in legal reasoning, supported by data and expertise that opened a window to the real world.

In later decades, courts of law have used this approach to implement the post WWII rights revolution. Great judges have adapted traditional modes of legal reasoning to new purposes. Their undertaking is to filter out, and discard, mere "custom" because it lacks the normative content necessary to have the legitimacy of binding law. Some perform this function at the directive of old and new constitutional texts; others map it out it in the absence of concrete textual direction.

It was no coincidence that Sankey offered this new paradigm in a case about the entry of women into public life. Gender equality was one of the great challenges of his day as was the future constitutional development of the British colonies then coming to full legal independence. The paradigm he developed has great flexibility. It applies to a wide range of social inequality, including racial and religious discrimination.

By the time I was appointed to the law school in 1988, the Charter's substantive commitments, its distinctive mode of reasoning, and its particular structure of litigation were second nature to me. I had experienced first hand the amazing contribution that women's groups, among others, had made to these features of the Charter. I looked forward to the opportunity to illuminate the Charter's theoretical coherence generally, its application to particular issues and its institutional roles.

Accordingly, it was not surprising that my initial academic writing related to gender issues, such as the status of women in the legal profession and reproduction. My work on abortion led to an invitation to the Senate to argue against the constitutionality of the Mulroney government's proposed amendments to re-criminalize abortion after the Supreme Court's invalidation of the therapeutic exemption in Morgentaler.

Imagine my thrill in laying out the constitutional implications of this proposal to female senators, all of whom easily understood the restrictions that the proposal would impose upon the opportunities for women to live fulfilled lives, in both the private and public spheres. I imagined Sankey taking pride in this event as well as the later tie vote in the Senate that in effect repudiated the proposal.

My work on reproduction led me to read widely about sexuality so that I felt confident in entering the public debate on same sex equality. This reading also gave me the grounding to write about and lecture on the recent proposal to use Sharia law in family dispute arbitration. The Charter's reconstruction of the traditional family has caused enormous controversy, prompting invitations to make submissions to parliamentary committees, give interviews and write in the popular press.

My experience in the political advent of the Charter gave me a strong stake in its stable development. I therefore became involved in the initiatives forged to resist constitutional amendment that I believed would undermine the strong advances for women nailed down in 1982. Accordingly, I joined forces with a number of other academics and public interest groups in illuminating the problems that might develop in respect to gender equality under the Meech Lake proposals as well as the Charlottetown Accord.

The richness and complexity of gender equality issues continue to challenge and fascinate me. I consider myself fortunate to have had the opportunity to develop constitutional expertise in this area and to contribute to public deliberation as well. This expertise has also enabled me to take part in the constitutional development of other countries, which I have enjoyed immensely.