Photo: flickr/The City of Toronto

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York professor Paul Grayson found himself in the middle of a clash recently, at the intersection of religious rights and gender rights. One of his online students asked to be excused from a group assignment, on the grounds that most other members of the group are women. He said that his religious beliefs prevent him from meeting in public with women. 

Grayson refused to set what he saw as a dangerous precedent. He told CBC that, “For religious beliefs, we also can justify not interacting with Jews, blacks, gays, you name it.” CBC reports that he contacted the student, who reluctantly agreed to follow the course requirements. 

However, in doing so, Grayson went against orders from the Dean’s office, and advice from York University’s Centre for Human Rights. Both of them told him to comply, partly if not mostly because the course the student was taking online permitted some flexibility for special needs. But Grayson said he rejected the religious argument, on the grounds that he was upholding other students’ human rights.

According to Toronto media, York University has been divided ever since, buzzing over whether human rights have a hierarchy, and if so, where religion sits on it. So have other campuses. Right-wingers are rubbing their hands gleefully over the spectre of competing rights, a wedge with which to divide progressives.

Some feminists are fascinated by York University’s stand. Julie Lalonde of the Coalition for a Carleton Sexual Assault Centre points out that a “staggering” number of assault survivors must either drop out or else continue attending classes with their assailants, because universities systematically refuse to accommodate their requests for transfers or other arrangements. Yet the university seemed willing to help a male student shun women classemates on personal grounds — religion.  

Freedom of religion is one of the Fundamental Freedoms enumerated in Section 2 of the 1982 Charter of Rights and Freedoms, which reads:

2. Everyone has the following fundamental freedoms:
    (a) freedom of conscience and religion;
    (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    (c) freedom of peaceful assembly; and
    (d) freedom of association.

And these Fundamental Freedoms are further enforced by Section 15, Equality Rights, which specifically permits affirmative action, and which reads:

    15. (1) 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 and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
       (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

Keen-eyed readers will have spotted that “religion” appears both as a right and as a Fundamental Freedom. Does that give religion twice the heft? And actually, “national or ethnic origin” might factor in too, if the student’s attitude towards women was a cultural as much as religious artefact.

On the other hand, keen-eyed readers might also have noticed the duplication in subsection 1: “before and under the law” “equal protection and equal benefit of the law.” While the duplication may seem redundant, actually feminists lobbied hard for every iteration. 

By 1980, Canada had a bumper crop of determined and ambitious feminist lawyers, mainly due to successful 1970s challenges to informal law school quotas for women. When the Charter of Rights was under debate, these lawyers already knew all too well that the Bill of Rights’ promise of “the right of the individual to equality before the law and the protection of the law” had proved worse than useless for women.

Jeanette Lavell’s challenge to the Indian Act resulted in a ruling that “before the law” meant only a guarantee of a day in court (not an overturned law). Stella Bliss’s challenge to Unemployment Insurance regulations produced a ruling that equal “protection of the law” meant a pregnant woman should be treated exactly the same way as a pregnant man — who of course would require no accommodation at all.

Brilliant legal minds like Mary Eberts, Beverly Baines, Marilou Mcphedran, Suzanne Boivin, Edythe MacDonald, Beth Acheson and many others studied the first draft of the Charter and pronounced it even more damaging for women’s equality rights than the Bill. They informally nicknamed the Charter’s proposed Clause 1, which imposed “reasonable limits” on rights, the “Mack truck clause” because the loophole was big enough to drive a convoy through. 

Their analysis — commissioned and published by Doris Anderson, then President of the Advisory Council on the Status of Women — led to a hard-fought but ultimately successful year-long grassroots and multi-party campaign across English Canada to entrench, engrave, embed and otherwise etch sex equality into the wording of every relevant clause. (As described in my 1983 book, The Taking of Twenty-Eight: Women Challenge the Constitution.)

Important legal experts have said (and I argue in an article in the soon-to-be-launched new cluster in Atlantis magazine) Section 15’s wording has resulted in a made-in-Canada definition of equality based on outcomes rather than opportunity. Under the entrenched Charter, the Supreme Court would really have to strain to deliver anything like the Lavell and Bliss decisions. In fact, under the Charter, courts at all levels found Section 15 must also protect sexual orientation, and “read it into” the Charter.  

Most Canadians know that history. Less well known is that feminists also inserted the first “Notwithstanding” clause into the Charter, although the Premiers’ later “Notwithstanding” clause got more attention. 

Section 28 emphasizes that every individual, every person, is entitled to the same rights. The exact wording is, “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

The official government guide to the Constitution notes that, “This is one guarantee that cannot be overriden by a legislature or Parliament.”  Nor, I would argue, by a university. Professor Grayson was right to rebuff the student’s request to avoid meeting with other students because they are women.

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Photo: flickr/The City of Toronto

Penney Kome

Penney Kome

Award-winning journalist and author Penney Kome has published six non-fiction books and hundreds of periodical articles, as well as writing a national column for 12 years and a local (Calgary) column...