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.

download the manual
“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

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.

Many of you probably came to law school with the idea that studying law would better equip you to fight for social change and address inequalities. However, within the first few months you may have found yourself disappointed. You may have been dismayed at the scant course offerings in the areas of feminist legal theory, critical race theory, disability law and other social justice topics. On a micro level, you may have been unnerved that a feminist perspective was absent when discussing sexual assault in your criminal law class, that your common law property class glossed over the racism and classism inherent in the buying and selling of human chattel, or that most discussions of family law are mired in heterosexist norms. Perhaps you were surprised. Perhaps you were angered. Perhaps you felt that having these all too important voices and perspectives silenced in the curriculum meant that your anti-racist, social justice, feminist views were not welcomed in law school.

This section is intended to re-affirm your many perspectives and lived experiences as valid and important to your studies and to law school curriculum.

  • Suzanne Bouclin—Some Guidelines for Feminist Legal Pedagogy
  • Elizabeth Sheehy—A Feminist Take on Criminal Law
  • Abigail Radis and Suzanne Jackson—Establishing a Student-Initiated Seminar at your Law Faculty: Suggestions and Challenges
  • Interview with Julie Lassonde
  • Natasha Bakht, Kim Brooks, Gillian Calder, Jennifer Koshan, Sonia Lawrence, Carissima Mathen and Debra Parkes—Counting Outsiders: A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education

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.

  • Mari Matsuda—When the First Quail Calls: Multiple Consciousness as Jurisprudential Method
  • Patricia Monture—Now that the Door is Open: First Nations and the Law School Experience
  • Dianne Pothier—Miles To Go: Some Personal Reflections on the Social Construction of Disability
  • Kim Brooks and Debra Parkes—Queering Legal Education: A Project of Theoretical Discovery

So far, this manual has explored some of the realities of being immersed in law school curriculum, and the different ways oppression and inequality can affect your law school experience. As the next generation of legal professionals, however, our experiences with and knowledge of oppression and inequality should not (and invariably do not) stop at the door of law school. Neither should our awareness or dedication to challenging the status quo in the legal profession cease when law school ends. Regardless of where you practice law, or if you decide to practice at all, it is up to you to decide how you will enact your feminist, social justice perspectives once you graduate. This next section will hopefully offer you some guidance on how you might use your legal education to make a positive impact in society. It reminds us that as lawyers we are responsible for more than the immediate consequences of our actions, and our practices should account for this. It asks you to imagine a world in which the Supreme Court of Canada makes decisions based on a robust understanding of substantive equality—and calls on you to act to help bring about such a world.

  • Diana Majury—Introducing the Women’s Court of Canada
  • Rosemary Cairns Way—Reconceptualizing Professional Responsibility: Incorporating Equality
  • Susan Boyd—Spaces and Challenges: Feminism in Legal Academia
  • Cynthia Peterson—Living Dangerously: Speaking Lesbian, Teaching Law
  • Jennifer Llewellyn—Restorative Justice: Thinking Relationally about Justice
  • Leighann Burns and Zara Suleman—Justicia in Your Face: How to Survive Law School as an AntiColonial, Anti-Racist, Feminist Activist