The clash of universalist and intersectional approaches, with regard to women’s right to equality, is found today at the heart of the trial of the Law on the secularism of the State (Bill 21). The Court of Appeal will have to decide whether, in his judgment on the validity of Bill 21, Justice Blanchard made errors of law in his analysis of the right to gender equality.
The protagonists
Two women’s rights organizations are raising gender equality in this lawsuit to defend or challenge the law.
On the one hand, Pour les droits des femmes du Québec (PDF Québec) considers that Bill 21 serves as a bulwark against sexist religious symbols in public institutions. According to this universalist organization, public schools have a responsibility to promote equality between women and men and to counter stereotypes. Supporting sexist religious symbols in public schools would be tantamount to validating the systemic discrimination against women by religions.
On the other hand, the Fédération des femmes du Québec, supported by the Fonds d’action et d’éducation juridique pour les femmes, orders that the intersection of “woman, Muslim and wearing the veil” be taken into consideration in the study real effects of the law 21. They believe that the prohibition of religious symbols interferes with their freedom of expression and religion. They do not recognize that a garment or a religious sign, worn by a person who is a role model and an authority figure among young people, is passive proselytism, regardless of the intentions of those who wear it. They also turn a blind eye to the resolutely sexist nature of the veil, both socially and in terms of the values it conveys.
A little history
It was to avoid “religious or cultural relativism” that feminists here demanded and obtained, in 1982, the addition of a section guaranteeing the right to equality between the sexes in the Canadian Charter of Rights and freedoms.
These feminists thus reacted to the previous decisions of the Supreme Court which, rather than recognizing women the same rights as men, consecrated formal equality by comparing women to each other. Moreover, feminists of the time feared that the entrenchment of multiculturalism in the Canadian Charter would limit, for some, the access to emancipation that other women could enjoy. They wanted the protection of the right to equality to be the subject of a separate article, since it is a different concept that cannot suffer from any compromise or reasonable accommodation. It was a great victory, obtained in the snatch.
A few years later, in 1989, the American Kimberlé Crenshaw developed the intersectional approach, which calls for taking into consideration the racial, cultural and religious characteristics of women to deal with issues of discrimination.
During the same period, and in reaction to Canadian multiculturalism, Quebec chose to focus on a universalist integration model, which organized public space around common values. Equality between women and men is one of these values.
The Conseil du statut de la femme pointed out, as early as 1997, the danger of including cultural identity when it comes to women’s right to equality, recognizing that in the case of women, there is a danger of into oppressive norms and values.
The Quebec government took note of this and added, in 2008, a clause to protect gender equality in the Quebec Charter of Human Rights and Freedoms.
The American influence is strong, and the intersectional approach is increasingly felt. It is no longer just a matter of considering intersecting discrimination, as it is applied in Canadian law, but of intertwining the grounds to the point of creating, in a way, new grounds for discrimination (e.g. women belonging to a racial or ethnic minority).
Several universalist feminists are sounding the alarm. They refuse to be confined in a religious, cultural or racial box which, in fact, prevents them from accessing universal rights. For them, intersectionality imprisons.
The story of Canadian Yasmine Mohammed is an eloquent example. At the age of 12, she denounces physical violence and the imposition of the Islamic veil by her fundamentalist stepfather. However, the Canadian judge did not want to intervene because, according to him, these were practices specific to his culture. This “intersectional” approach will have the effect of locking it into a religious patriarchy despite the right to equality.
Conclusion
De facto equality between women and men is not yet a reality in Quebec. The identification, denunciation and elimination of sexist, religious and other practices remain essential to the advancement of women’s right to equality.
The universalist approach opens the way to real equality between women and men of all origins. The intersectional approach, which reinforces the influence of religious patriarchy, slows down this progress.
Of course, the role of the state is not to regulate religious sexism. It must nevertheless ensure that its institutions are exempt from it, since it is contrary to the achievement of de facto equality between women and men.
Equality between the sexes is one of the recitals of Law 21. The Law is aimed at both women and men and covers all religious symbols. It therefore seems incongruous to think that it could contravene equality between the sexes.