Frustrated over cases and losses related to section 15—the promise of equality— of the Charter of Rights and Freedoms, a group of lawyers, law professors and activists decided to challenge conventional thinking about equality. They objected to the embedded inequalities in the law, to gender issues present in cases that weren’t ostensibly about gender, and to the fading promise of substantive equality. They decided to rewrite six decisions of the Supreme Court of Canada—and the Women’s Court of Canada was born.
“I was nervous that the response would be ‘Who do they think they are?’” says Diana Majury, associate professor in the department of law and a founding member of the Women’s Court. “This was done with respect for the judges and the legal decisions—and the work and thought that goes into writing them. But rewriting the decisions allows us to show another way of analyzing the law, of working out what a constitutional theory of equality should look like.”
The Women’s Court was launched, and the first six cases unveiled, in Toronto, Ont., during International Women’s Week 2008 as part of a national symposium examining the theme “Rewriting Equality”. Met with a positive reaction, the Women’s Court has already been approached by groups in Australia, England and South Africa interested in similar projects.
“This was a creative, affirming way to do a critique,” says Majury. “It allows us to explore the capacity and limitations of the courts to further equality and social justice.”
The six rewritten decisions appear in the Canadian Journal of Women and the Law. Another four are in the works. Majury hopes the decisions will be used as teaching tools, encouraging lawyers to think more broadly about substantive equality.
Substantive equality, which focuses on equal outcomes rather than identical treatment, recognizes that biology and accumulated social disadvantage have an effect on women, and that laws and policies can affect them differently.
“It’s a more complicated notion of equality,” says Majury. “My students initially struggle with it because we are used to formal equality where everyone is treated the same—but the same for all doesn’t necessarily result in equitable outcomes.”
In addition to illustrating substantive equality, Majury hopes the Women’s Court will also be able to make the concept more accessible to audiences outside the legal field. Judgments are dense and legalistic, she says, so the Women’s Court is looking for funding to create synopses of the rewritten decisions. “The concept needs to be explained more generally to a wider audience. Law and society change together.”
As the Women’s Court of Canada grows and transforms with changing volunteer membership, Majury can see it exploring issues of the day, as well as models of courts and decision making. “It’s a spontaneous, fluid project,” she says. “The Court will grow and change to respond to women’s changing and diverse equality needs.”
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