Human Rights of Women: National and International Perspectives

By Rebecca J. Cook | Go to book overview

Chapter 19
Canadian Approaches to Equality Rights and Gender Equity in the Courts

Kathleen E. Mahoney


Introduction

[T]he history of the struggle for human rights from the eighteenth century on has been the history of men struggling to assert their dignity and common humanity against an over-bearing state apparatus. The more recent struggle for women's rights has been a struggle to eliminate discrimination, to achieve a place for women in man's world, to develop a set of legislative reforms in order to place women in the same place as men.... It has not been a struggle to define the rights of women in relation to their special place in the societal structure and in relation to the biological distinction between the two sexes. Thus, women's needs and aspirations are only now being translated into protected rights.1

Equality has always been a very difficult concept for judges, lawyers, law professors, and other students of the law to define or describe. The reason is, as Justice Rosalie Abella of the Ontario Court of Appeal puts it, that

Equality is evolutionary, in process as well as in substance, it is cumulative, it is contextual, and it is persistent. Equality is, at the very least freedom from adverse discrimination. But what constitutes adverse discrimination changes with time, with information, with experience and with insight. What we tolerated as a society 100, 50 or even 10 years ago is no longer necessarily tolerable. Equality is thus a process, a process of constant and flexible: examination, of vigilant introspection, and of aggressive open-mindedness. If in this on- going process we are not always sure what "equality" means, most of us have a good understanding of what is "fair.''2

And the way women's rights are treated in all areas of the world, in many ways is not fair. It is now widely documented and accepted that

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