Gender and the Law Manual

an introductory handbook for law students

The National Association of Women and the Law Charitable Trust for Research and Education has published an alternative orientation guide to law school: Gender and the Law Manual: An Introductory Handbook for Law Students.

The Manual was compiled by a working group of 8 law students from across Canada following a leadership summit held by NAWL in February 2011. It aims to provide feminist and equality seeking law students with hope, encouragement and inspiration as well as with some of the tools they may need to survive law school and legal practice. The Manual also aims to encourage feminist students and future lawyers to think critically about the law and take action to denounce inequality and injustice. It consists of manifestos, excerpts of articles and personal accounts written by 25 feminist students, professors, lawyers and activists.

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“Imparting critical feminist theory in the law school classroom is about more than identifying, deconstructing, and hopefully obliterating the inconsistencies and injustices that pervade society and the law: it is also about understanding the hierarchies of privilege and power that raise race, class, and able-ist concerns.”
— Rosemary Cairns-Way and Daphne Gilbert, “ Teaching Sexual Assault Law: The Education of Canadian Law Students” (2009/2010) 28 1 Canadian Woman Studies at page 70

background

In 1991, the National Association of Women and the Law Charitable Trust for Research and Education published a Gender and the Law Manual as a means of reaching out to law students in friendship and in recognition of the unique concerns of women in law. Twenty years later, we believe such a handbook is still relevant. While a small number of pieces that appeared in the original Manual have been reprinted here, the working group that compiled this guide laboured to ensure that law students would have some current reference material to assist them in meeting the challenges presented by law school and legal practice today.

It is our hope that by exposing some of the institutional barriers that make the law school experience difficult for many women and individuals from equality seeking groups, we will effectively encourage more awareness and discussion of the issues – and perhaps even encourage small steps to be taken toward the development of practical answers as well.

The editors of the earlier release of this handbook wrote: “we believe that a handbook such as this will make an important contribution toward our long-term objective of making the law and the legal profession more sensitive to women.” That long-term objective is far from realized: there remains much work to be done to reduce systemic discrimination embedded in the law, as well as in legal education and practice. By publishing this revised handbook, we renew our commitment to achieving our goal of advancing the equality rights of Canadian women.

Please let us know if you have found this handbook useful. We welcome ideas for future iterations of this orientation guide should it continue to be necessary and relevant.

Table of Contents

In February 2011, the National Association of Women and the Law hosted a leadership summit for 21 feminist law students from across the country. The opening address began with these words: “Law school can be a really lonely place.”

Following the leadership summit, a group of eight participants from across the country embarked on updating a law school orientation manual that the NAWL Charitable Trust for Research and Education had created in the 1990s with the aim of reminding feminist first year law students that, in fact, you are not alone. There are feminists in law school everywhere—as well as in legal practice—and we are challenging ourselves to think about the law through a feminist and equality rights focused lens.

The law school machine tends to channel students into one specific path: get the best grades, take black letter law classes, learn ratios by rote, study the right six-part tests, and work at the “right big firm”. For some, it is easy to forget that there are other ways to think about the very real and important issues arising in your classes, and that there are people who are actually affected by the law that you are studying. For others, these things are impossible to forget! Because sexual assault, racism, criminalisation, institutionalized homophobia, poverty and lack of access to property are issues that affect our lives.

For many of you, the formal orientation and professionalization process of law school itself will be alienating. Law school is generally bad at making space for the experiences and lived realities of people in equality seeking groups.

Know that if you stray from that “one specific path” at law school, you will be just fine. Even if some of your professors appear to have no clue what you’re talking about when you raise your hand in class, frustrated by law’s contribution to what you understand to be substantive inequality—it is extremely likely that at least someone else in your class will be grateful that you raised your hand. Whatever experiences brought you to your faculty, you are an invaluable resource to your school and to your peers. Your feminist analysis, your life experience, your questions and your opinions matter. Your voice should be heard.

The following pages provide a series of articles and excerpts written by feminist academics, activists and lawyers and compiled by feminist law students. This manual does not attempt to provide insight into the full range of feminist issues that you will encounter as you study and practice law. It is not meant to be comprehensive. Instead, it is meant to spark your curiosity, to challenge you to think about alternative perspectives, and to ask the questions no one else may be asking. It is meant to remind you that you are not alone.

We hope that this collection of ideas brings you encouragement, hope and inspiration. Good luck!

Yours in solidarity,

Tamera Burnett, Julia Crabbe, Danielle Fostey, Madeleine Gorman, Nita Khare, Catherine Kim, Laure Prévost, Simone Samuels

“Imparting critical feminist theory in the law school classroom is about more than identifying, deconstructing, and hopefully obliterating the inconsistencies and injustices that pervade society and the law: it is also about understanding the hierarchies of privilege and power that raise race, class, and able-ist concerns.”

— Rosemary Cairns-Way and Daphne Gilbert, “ Teaching Sexual Assault Law: The Education of Canadian Law Students” (2009/2010) 28 1 Canadian Woman Studies at p 70

When a discriminatory law or policy affects someone’s life, there can be an intersecting impact depending on the person’s sex, marital status, sexual orientation, race, age, ethnicity, religion, as well as whether or not the person is living with a disability. Given the way in which systemic discrimination operates in society, often we find that several prohibited “grounds of discrimination” are triggered by one single discriminatory law or policy. Focusing on only one ground of discrimination does not, in many cases, give significant enough emphasis to other aspects of an equality seeking person’s identity. To address this, feminist legal scholars and lawyers have contributed to the advancement of “intersectionality” in equality jurisprudence. Critical race scholars explain “intersectional claims” as claims of discrimination based in the distinct stereotyping and historical treatment experienced under multiple enumerated and analogous grounds.

As you read cases in first year law school, you may be alarmed at the extent to which judges and decision-makers fail to understand the reality of intersectional oppression. This can be particularly frustrating when it is clear that an exclusive focus on one characteristic of a litigant’s identity (like disability) provides an inadequate analysis of the manner in which a law or policy is discriminatory (on intersecting grounds, for example, of disability, race, poverty and gender).

Critical race and disability theorists are writing increasingly about the complexity of disentangling interlocking patterns of discrimination. We were not able to include as many excerpts from this body of literature as we would have liked, and so we encourage you to read far beyond this manual. We encourage you to find and read anything by Patricia Williams, to read Peggy McIntosh’s now-famous paper on White Pivilege, to consult the Ontario Human Rights Commission’s discussion paper entitled “An Intersectional Approach to Discrimination”, and to check out LEAF’s Ontario Court of Appeal factum in Falkiner et al v The Queen.