National Post

Monday, March 15, 1999

Feminists, equality, and the law

Kathleen Mahoney
National Post

The commentary by Barbara Amiel, Feminists, Fascists and Other Radicals (March 6), requires a response. Once I got through Ms. Amiel's nasty name-calling, distortions, and frenzied rhetoric, I had to agree with her that the real issue underlying the McClung-L'Heureux-Dube debate is about the role of equality in a liberal democracy. Her commentary mentions two visions of equality -- one of which she agrees with (formal equality), the other which she sees as the true contemporary Canadian scourge (substantive equality). Formal equality is based on the notion that equality will be achieved as long as all people are treated the same under the law. Substantive equality is based on the notion that equality will be achieved by ensuring the impact of laws is fair.

It is clear Ms. Amiel is bothered by the progress Canada has made toward achieving greater substantive equality and human rights for women. To her, Justice Claire L'Heureux-Dube and feminists represent that progress and thus, are lightening rods for her anger.

The ideas and values she finds most threatening, namely human rights and substantive equality, are attributed entirely to feminists. Her shorthand method of discrediting them and their values is to equate them to fascists and communists, accusing them of subverting liberalism and democracy. But most of all, she singles out Justice L'Heureux-Dube to discredit (even to the extent of saying she is "living beyond her intellectual means"), probably because she represents the biggest menace of all -- a dynamic and powerful influence for social and legal change.

Ms. Amiel's commentary fits into a pattern of backlash that can be traced to the mediaeval ages. In those days, non-conformist women seeking equality were burned at the stake as witches. At the beginning of the 20th century, suffragettes were attacked by the press, religious leaders and academics who said they would be the cause of infertility, crises in the family, and increased divorce rates. Feminists who promoted birth control in the 1930s were assailed as evil, selfish and immoral and the cause of insanity, tuberculosis, diabetes, and cancer in women who practise birth control. Ms. Amiel's comments that contemporary Canadian feminists are "destructive of the nation and highly detrimental to the fabric of our society" are strikingly similar to those of another anti-feminist crusader, moral majority leader Jerry Falwell, who, in this treatise, Listen America, depicts feminists as "malevolent spirits capable of great evil and national destruction."

The hallmark of Ms. Amiel's brand of backlash is to stand truth on its head and proclaim that the very progress that has been made for women, has actually led to their downfall. For example, she charges that "feminism has had absolutely nothing to do with equality for women -- quite the opposite."

Applying her accusations to Justice L'Heureux-Dube and the Supreme Court, this can only mean that some of their equality-based, feminist-inspired judgments that protect women from sexual harassment in the workplace, protect pregnant women from discrimination in unemployment benefits, protect women from violent and degrading pornography, from sexual assaulters, from violent husbands or partners, from laws that arbitrarily limit their right to control their own fertility, and from poverty upon divorce, are all destructive.

Her attack on substantive equality as opposed to formal equality, is also interesting. She claims that I, for one, "sneer" at formal equality as being "a right-wing concept that must be replaced by substantive equality." The problem with this statement is that the debate is long over. What Ms. Amiel doesn't seem to know is that all provincial legislatures embrace substantive equality in their human rights legislation and Parliament constitutionally enshrined substantive equality in 1982.

Furthermore, formal equality was replaced by substantive equality in the common law by an all-male Supreme Court of Canada in 1985. In 1989, substantive equality was affirmed as a fundamental principle of constitutional law. Justice McIntyre, who led the court in the landmark case, is hardly a radical feminist. In rejecting formal equality, (Ms. Amiel's preference) Justice McIntyre said it is a seriously flawed concept that could justify the Nuremburg laws of Adolf Hitler, and was used to justify the segregation of blacks in the United States through the separate but equal doctrine.

As a result, the law of equality in Canada is substantive equality. Much to Ms. Amiel's chagrin, I am sure, it is not gender blind, or race blind, or blind to disabilities and other realities of people's disadvantage. It affirms that sometimes people must be treated differently in order to achieve equality. An example of substantive equality in action is the government's provision of wheelchair ramps for the disabled. Under substantive equality principles, disabled people are entitled to be treated differently in order to achieve equality. Formal equality on the other hand, would only guarantee disabled people the same treatment as everyone else, regardless of their disability. In other words, the disabled would either have to build their own wheelchair ramps, try to get access to buildings without them, or rely on the goodwill of private citizens to help them.

Whether Ms. Amiel's backlash is directed at Justice L'Heureux-Dube, the Supreme Court, feminism, or individual academics, the methods and messages are the same. She manipulates resentment, ignorance, and intolerance for the purpose of rolling back the progress and recognition of human rights and women's rights, and creating a fear and loathing of feminism.

But if she can defend formal equality without resort to name-calling, exaggeration, personal vilification, or false claims to universal truth, she should do it. No ideas are immune from criticism. There may be flaws in affirmative action and there are extreme forms of feminism that invite controversy and should be questioned. But to move beyond the backlash, the debate must rise above the misleading attacks and angry dismissals. To make constructive progress, there must be openness to the possibility that excellence and substantive equality are not at cross purposes. There is no reason why employment equity should lower workplace standards, or feminism cannot expand intellectual appetites and challenges at our universities and promote better justice in our courts. Thoughtful and respectful conversations on these topics are urgently required to address the problems of intolerance, discrimination, violence and abuse which are inexorably and unrelentingly real.

Kathleen Mahoney is a professor of law at the University of Calgary.

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