This is the third essay in a special eight-part series on Feminist Constitutionalism, organized by Melina Girardi Fachin, as part of the project ‘Transforming Judicial Outcomes for Women in Canada and Brazil,’ which is funded by the Social Sciences and Humanities Research Council of Canada (SSHRC). For more information about Feminist Constitutionalism, please contact Melina Girardi Fachin via email at melinafachin@gmail.com.
—Vrinda Narain, Law Professor, McGill University Faculty of law, vrinda.narain@mcgill.ca
Minority, racialized women’s justice claims are invariably located at the intersection of equality, religious freedom, multiculturalism and reasonable accommodation. Canada’s ever-increasing diversity makes it imperative to engage meaningfully with minority rights, equality, and the accommodation of difference. Current approaches to minority rights identify certain communities as backward and majority culture as the norm, resulting in obscuring gendered, structural inequality. The nationalist imagination continues to be preoccupied with stereotypical images of racialized, immigrant women and issues of cultural difference. The accompanying reasonable accommodation discourse reinforces the racial status quo by setting the terms of the debate and the limits of tolerance.
Drawing from feminist constitutionalism, I argue that it is imperative to formulate a policy of critical multiculturalism to better respond to diversity. Moving away from a simplistic focus on culture, critical multiculturalism addresses structural disadvantage located at the intersections of inequality, culture, and power. Rejecting an us-versus-them dichotomy, it is premised on a politics of respect, not mere toleration, while including the perspective of those to be accommodated, challenging the current anti-discrimination framework.
I rely on the following guiding principles of feminist constitutionalism: substantive equality, intersectionality, inclusivity, and challenging norms. Substantive equality is concerned with equality of outcome. It assesses a law’s impact by including the perspectives of women who experience its effects.Feminist constitutionalism embraces intersectionality, an analytical mode critiquing single-axis approaches to understanding inequality, exposing how discrimination occurs over multiple axes. It enables the Court’s response to be more relevant to people’s experiences. Feminist constitutionalism is committed to including the perspectives of marginalized women whose voices are excluded from mainstream discourse. Finally, it interrogates laws that perpetuate inequalities and discrimination.
Quebec’s Bill 21, “An Act respecting the laicity of the state,” enacted in 2019, provides a compelling case study of these issues (Bill 21). It imposed a ban on religious symbols in the public sphere, when giving government services, or, in certain cases, when receiving services, where necessary for security or identification purposes. The law applies to public officials in positions of authority including judges, police officers, and schoolteachers. It was justified based on secularism; religious neutrality; equality; and freedom of conscience and freedom of religion.
Bill 21 demonstrates a populist response to anti-immigrant sentiment, particularly to Muslim immigrants’ purported illiberal practices. This law regulates Muslim women as symbols of the threat posed to Quebec identity, secularism and gender equality, rather than addressing their systemic disadvantage. Secularism is posited as a liberating force for minority women in contrast to their oppressive religious practices, yet it has resulted in greater State regulation. Rather than fostering inclusion, equality, or democratic citizenship, this law further marginalizes Muslim women. It constructs women’s rights as oppositional to religious identity, presenting Muslim women with an either-or choice between religious faith and gender equality. The State focuses on the intolerability of a religious practice to the majority instead of acknowledging the law’s disproportionate impact on Muslim women. They have been excluded from the democratic dialogue with the state although they are members of a religious group that is deeply impacted by the tensions between religious practice, gender equality and state secularism.
Bill 21 was challenged in Hak v Attorney General of Quebec. In April 2021, the Quebec Superior Court upheld the law with exemptions for English school boards and the National Assembly. The case was appealed to the Quebec Court of Appeal, which heard arguments in November 2022. In February 2024, the Court of Appeal delivered its decision, upholding the law’s constitutionality, and reversing the exemption for English school boards. The legal arguments included issues around section 28, gender equality and section 33, the notwithstanding clause of the Canadian Charter and the relation between these two provisions. S. 28 provides that notwithstanding anything in the Charter, the rights and freedoms guaranteed be implemented without discrimination between the sexes. S. 33 affirms legislative supremacy and permits the legislature to insulate a law from constitutional scrutiny, notwithstanding fundamental rights. Thus, it allows for a majoritarian understanding of democracy, rendering precarious the minority rights’ protection in Canadian constitutionalism. The principles of substantive equality, religious freedom, and the disproportionate impact on hijab-wearing Muslim women, were key aspects of the constitutional challenge to Bill 21.
The Court of Appeal upheld the use of s. 33 insulating Bill 21 from constitutional scrutiny, and suspending the rights to religious freedom and gender equality. The Court rejected the application of s. 28, including in connection with the use of the notwithstanding clause, holding that it is merely an interpretive provision and does not create a standalone equality right.
The Court’s rejection of substantive equality and refusal to acknowledge the gendered Islamophobia faced by Muslim women subject to Bill 21 is disappointing. Without adequately interrogating the law’s purpose, the Court failed fully to consider democracy in all its aspects— including the protection of minority rights—while foregrounding legislative supremacy. The decision seems curiously disengaged from constitutional values, and out of step with the changing face of Quebec’s diversity. In the meantime, the Quebec government has announced its intention to renew the notwithstanding clause. An appeal is anticipated, where these issues will ultimately be addressed by Canada’s Supreme Court.
Applying a feminist constitutionalist framework in responding to minority women’s claims avoids presenting them with an all-or-nothing choice between cultural autonomy on one hand and access to education, employment and political participation on the other. Insisting that minority rights be premised on substantive equality, intersectionality, and the inclusion of marginalized perspectives to challenge culturalism faced by minorities, feminist constitutionalism permits a focus on the redistribution of social, economic, and political power to excluded groups.
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