Why we still need feminism in law school

Pam Cross

These remarks were made at the University of Western Ontario Faculty of Law on November 11, 2009.

“Feminist law students, and law students who bring an analysis of other antioppression/social justice issues, need to feel that their comments and analysis are welcome in the classroom, not feel afraid to express their beliefs.”

Law can function as either a tool or a weapon. Used well, it can be a tool to effect social justice. Used badly, it is a weapon that will increase social injustice.

Either way, law, and those who study, understand, apply and interpret it, have a lot of power in our society.

I want to encourage you to find ways to use the law as a tool for social justice. In particular, I want to encourage you to use it as a tool to increase women’s equality in this country.

On December 6, it will be 20 years since 14 women were murdered at Montreal’s École Polytechnique.

We have done a lot in those 20 years, but there is one thing we have not done: we have not achieved equality for women. We have not even reduced the rates of violence against women, which is one of the most notable symptoms of women’s inequality.

Canada prides itself, quite rightly in some cases, on its human rights record both domestically and internationally. The present government, in particular, likes to assure all of us that women in Canada have achieved equality. However, the reality is quite different. There is a serious societal reluctance to contemplate the extent of misogyny in Canadian culture. We are quite enthusiastic about speaking out against women’s equality in other parts of the world, but we are generally notably reluctant to do so here, despite the fact that equality remains little more than an illusion for many women in Canada, especially those who are marginalized.

Here are just three examples of women’s inequality in this country.

Because women are not equal, women are poor. Women working full time in the permanent workforce earn about 73 cents for every dollar earned by men. This goes down to 69 cents for women who have a post-secondary education. This is around the same amount that women earned when I was 19 years old and a new mother. It never occurred to me that my daughter, who will be 36 in a couple of weeks, would face the same wage inequity that I did when she was born.

Because women are not equal, we are underrepresented politically. Canada has fallen to 48th place in the world in terms of women’s representation in electoral politics, with only 20% of federal MPs and 27% of provincial MPPs in Ontario being women. We see the impact of the lack of representation by women in the kinds of policy decisions being made in areas such as child care, maternity/parental benefits and pay equity.

Because women are not equal, we remain very vulnerable to violence, largely perpetrated by men. Across Canada, more than 70 women a year are killed by men who claim to love them. That is only the most extreme tip of the iceberg in assessing the rate of violence against women. Thousands of women and their children flee violence every year, many of them finding safety and support in women’s shelters, others turning to family and friends, others, unfortunately, with nowhere to turn finding themselves on the street.

Between 2000 and 2006, 101 Canadian police officers and military personnel, including those serving in Afghanistan, were killed in the line of duty. In the same period of time, 500 women were killed by their partner or former partner.

It is especially poignant to think about these numbers because today, November 11, is Remembrance Day; a time when Canadians, from the youngest schoolchild to the oldest veteran, take at least a moment or two to reflect on the sacrifices made by soldiers and others in wars past and present. As I noted earlier, December 6 is just a few weeks away. It, too, is a national day of remembrance, but business does not stop for December 6th, there are no cenotaphs at which people can gather and commemorate the dead, school children do not make roses or wear buttons to show their remembrance.

As many of you know, Canada and all of the provinces and territories have signed the CEDAW (International Convention to End All Forms of Discrimination Against Women). This means that Canada is reviewed on a regular basis by a committee of the United Nations to see whether the country is living up to its obligations under this convention. The most recent report card cites Canada for its lack of compliance with the Convention, noting in particular federal government cuts to funding for equality rights research and advocacy and government in-action on violence against women, women’s poverty, women’s access to justice and racism against Aboriginal women.

So, what does any of this have to do with feminism in law? Because at least at the formal level, it is law that guides and influences the development of policy and, later, interprets that policy. And, too often, law does neither of those things from a feminist perspective.

We hear a lot in law school about the formal equality that has come with the Charter of Rights and Freedoms, case law and human rights legislation and cases. Despite this, women in Canada have little substantive equality. Of course, life is much better for women in Canada than it is for women in many other parts of the world. And, of course, some women – women who are marginalized by reason of race, skin colour, immigration status, economic situation or disability — face more inequalities than others, but inequality to some extent is the reality for all of us.

There is no area of law that does not require a feminist analysis and understanding. This is as true of how we approach torts, contracts and income tax as it is of family and criminal law, but let’s stick to the more obvious for now or my lack of torts and contracts background will quickly become more apparent.

We just cannot look at law properly without bringing an intersectional analysis that features feminism.

One of the biggest battlegrounds for feminists has been the criminal response to rape, now more politely called sexual assault. And, no wonder.

Before 1983, men could rape their wives. Before feminists spoke up, drunkenness was a defence in a rape case. Before feminists spoke up, private records of complainants in sexual assault cases were handed over willy nilly to the accused.

Rape and the law continues to provide serious challenges for those who are working for women’s equality, but it is also true that the improvements to the criminal response to rape have come about because and only because a feminist analysis has been applied to those issues.

“We need courses on feminism and the law, to be certain, but we also need feminism woven through every course. Learning feminism should not be an optional course. Why? Because law students are among the elite in this country, no matter your background before you get here. And once you graduate, you become more privileged. If you practice law, you hold people’s futures and fortunes in your hands or you work with and for corporations that have enormous power over people’s lives.”

Women’s ability to control our reproductive lives is surely at the cornerstone of equality. It was the work of feminist legal minds, grassroots activists and, of course, Henry Morgentaler, that led to the decriminalization of abortion.

Most of you will be familiar with the name of Dr. George Tiller, an abortion provider in the United States who was assassinated last spring. He was well known for saying that his work was based on his trust of women – the trust that women are capable of and will make the best decision given all the circumstances of their situation.

Trust women – what a simple concept. Yet, an examination of the law and how it treats women makes it clear that there is little trust of women in that system.

Let’s look at a few other areas of law that have benefited from having a feminist lens applied.

It was feminists who ensured that stalking became the criminal offence of criminal harassment.

It was feminists, many of them with legal training, who worked to establish victim supports in criminal court.

Family law practically screams for a feminist analysis and understanding. Why? Because many women remain primarily defined by their role within the family. Particularly when there is violence, the family unit becomes a trap and the law, instead of helping women out of the trap, can further imprison them there.

Remember that it was only in the 1970s that the law was changed to ensure that married women could share equally in family property.

It was only in 2006 that child custody legislation in Ontario was amended to make it mandatory for judges to consider family violence in making their decisions.

It was also only in 2006 that the use of religious laws, which often reflected patriarchal and even outright misogynist principles and values, in family law arbitration was banned.

Most of these are areas where much has been done to increase women’s access to justice, to increase women’s equality. Does this mean we are done; that we don’t need feminism anymore?

If only that were the case.

It is important to note the successes – and there have been many more than I have mentioned.

But there is a lot to do.

I spent two days earlier this week with a group of engaged, activist young women, most of them in law school, from across the country who came together to talk about where feminist law reform advocacy should go in Canada.

They had a lot of exciting positive ideas about what they want to do for women’s equality in this country, but they also had a lot to say about the absence of feminism in law schools. In fact, their experiences of law school sounded more lonely and isolating than mine was.

Feminist law students, and law students who bring an analysis of other anti-oppression/social justice issues, need to feel that their comments and analysis are welcome in the classroom, not feel afraid to express their beliefs.

We need courses on feminism and the law, to be certain, but we also need feminism woven through every course. Learning feminism should not be an optional course.

Why? Because law students are among the elite in this country, no matter your background before you get here. And once you graduate, you become more privileged. If you practice law, you hold people’s futures and fortunes in your hands or you work with and for corporations that have enormous power over people’s lives. If you work in government, you will influence policy. If you research, you will influence policy. If you teach, you will influence more lawyers. And so on.

You have an obligation, if you plan to wear this mantle of privilege, to ensure that you understand the fundamental lack of equality that is the reality of more than 50% of the Canadian population.

We still have work to do. Trust women.

Reproduced from notes of a talk given at the University of Western Ontario on November 11, 2009: Pam Cross, “Why we still need feminism in law school” online: Women, Equality, Law and Policy in Canada . Reproduced by permission of the author.