“All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.”
PENNEY KOME: OVER EASY
I did a double-take recently when I came across Article 44 of the 2001 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The wording closely echoes Section 28 of Canada’s 1982 Charter of Rights and Freedoms: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” Gender equality is rarely so explicitly promised. Google searches turn up references to UNDRIP, Section 28, and, interestingly enough, to multiculturalism.
Constitution nerds like me get excited about how equality rights are developing here in Canada. We’re also excited about the way Charter wording is influencing equality guarantees around the world. That wording came from a stunning spontaneous 1981 women’s rebellion.
On February 14, 1981, 1300 women from across Canada showed up at the first public national conference in the House of Commons and passed resolutions . Surprised conference leaders stayed in Ottawa and lobbied until Pierre Trudeau’s Justice officials offered them a gender equality guarantee in the interpretative section – Section 28. Thirty-five years ago this fall, November 16 – 24, women’s groups won fast fierce battles with their premiers in every province to protect Section 28 from potential override.
Even before those public skirmishes, though, the Liberal government had already accepted amendments from organizations like the National Association of Women and the Law that strengthened all equality rights. Section 15, Equality Rights, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination…” [My italics.] The new clause was intended to buck existing case law about the phrase “equal before and under the law.”
Under John Diefenbaker’s Bill of Rights, the Canadian Advisory Council on the Status of Women warned, courts had ruled that equality “before and under” the law meant only that a person could bring a case to court, not that they could obtain any remedy. In Stella Bliss, judges used a “reasonable man” test to rule against maternity leave. In Jeanette Lavell’s attempt to reclaim her Indian status, the courts ruled that all she was entitled to was a hearing, and she had just had it.
Although the new Charter would give judges power to strike down laws on the spot – as the Bill of Rights did not – women wanted to encourage judges to seek remedies as well as legal decisions. Elsewhere, I have argued that LGBTQ folks won equal marriage so quickly (9 years) largely because of the “equal benefit and protection clause.”
When Justice Minister Jean Chrétien rolled out the revised Charter in early 1981, women were pleased by the enhanced Sec. 15. On the other hand, they were alarmed by a new Section 27: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” They feared the section would encourage cultures where women are considered less than full adults — or even chattel – as they were in Canada as recently as the 1960s (in Quebec).
Women’s groups had lobbied all along for an overarching statement of gender equality. The government balked at putting gender equality into the Constitution’s preamble, but it did offer up an immediate limitation on Section 27, in the form of Section 28,: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”
I tend to think of Section 15 as an engine driving equality, especially because subsection (2) permits affirmative action programs, whereas Section 28 is more like a seat belt, a safety measure. Lately, there has been some scholarly grumbling about Section 28 being “obsolete.”
On the contrary. Apparently it was decades ahead of its time.
Canadians had already contributed significantly to international human rights legislation. Canadian John Peters Humphrey – the first Director of the UN Human Rights Department – usually gets credit for most of the wording in the Universal Declaration of Human Rights. So the inclusion in UNDRIP is part of a long tradition.
Still, I was thrilled to discover that, 20 years after Canadian women helped write the equivalent of the defeated US ERA (Equal Rights Amendment), the UN found the wording so strong and clear that it used the same language to declare that Indigenous women have the same rights and freedoms as Indigenous men – everywhere in the world. This form may become the new international template for declaring equality rights. Canadian women should be proud.
Copyright Penney Kome 2016
Contact: komeca AT yahoo.com Read more F&O columns by Penney Kome here
Penney Kome’s 1983 book, The Taking of Twenty-Eight: Women Challenge the Constitution, is a comprehensive account of the 1981 women’s constitution conference and campaigns. A scanned copy is available for $3.45 US here, from Lulu.com: http://www.lulu.com/shop/penney-kome/the-taking-of-twenty-eight-women-challenge-the-constitution/ebook/product-259196.html
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Contact: komeca AT yahoo.com
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