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Quebec’s secularism bill violates Canada’s “equal rights amendment”

Bill 21 targets Muslim women, and that means they can use the Charter to challenge it, notwithstanding the override clause.

Muslim woman in the city

Quebec’s Bill 21, which would ban some public employees from wearing religious symbols, is clearly a denial of basic rights and freedoms to minorities in Quebec.  It has been criticized as religious discrimination, and the provincial government wants to short-circuit any potential Charter challenge to the bill by invoking the section 33 “notwithstanding clause,” which permits legislation to override certain rights, including freedom of religion under section 2(a).

But what the Quebec government did not count on is the possibility of another type of challenge. By targeting religious women, as Bill 21 does, the legislation constitutes sex discrimination against these women, and thus violates Canada’s “equal rights amendment” — section 28.  That provision guarantees that the rights and freedoms of the Charter apply equally to male and female persons “notwithstanding” anything else, including the override powers of section 33.

This is problematic. Bill 21 prohibits certain people in government positions from “wearing religious symbols in the exercise of their functions.”  This includes lawyers, teachers, and members of various tribunals.  Even more extensive is the list of people that are subject to the requirement to uncover their face to provide or receive government services, from municipal clerks to bus drivers to child care workers.  The existing law with a similar “niqab ban” has been challenged under the Charter, Quebec courts have granted orders suspending its operation while the case is being heard, on the basis that it would cause “irreparable harm…to Muslim women.”

Eliminating the fundamental autonomy of any woman — in this case of Muslim women —  to dress in accordance with their religious beliefs is contrary to the guarantee of gender equality under the Charter.  It will require some Muslim women to choose between being religiously observant to their beliefs or aspire for certain government jobs or often receive necessary public services provided by the provincial and municipal governments.

Recently, two commentators argued that the gender equality argument is “unconvincing.” In their view, the Québec government  “has made it clear that it sees its muscular commitment to the state’s secular face to be the epitome of a commitment to gender equality.”

But history demonstrates what Canadian women know too well, namely that, too often, laws discriminating against them have been justified on the basis that they should sublimate their own interests for the “greater good” or worse yet, the paternalistic belief that government must take decisions away from women because it knows better.  As Mr. Justice Bastarache highlighted in Gosselin v. Québec (Attorney General), groups that are subjected to inferior, discriminatory treatment “are not treated with dignity just because the government claims that the detrimental provisions are ‘for their own good.’”

When women are from a marginalized group, the impulse to use them to enact our own sense of superiority as a nation that has already “achieved” gender equality becomes even more irresistible.  La Fédération des femmes du Québec, the province’s largest women’s group recognized this, stating that Bill 21 “is a secularization of women’s oppression” and “an institutional passport to imprison Muslim women in a ghetto at the professional and social level”.

What’s more, the recent legislative and political history of religious clothing in Quebec strongly suggests that the purpose of the bill relates to women's religious clothing specifically. While Bill 21 ostensibly prohibits wearing religious symbols, the real target is religious Muslim women who wears a niqab or hijab.  Quebec’s Minister of the Status of Women, Isabelle Charest, inadvertently revealed the government’s true motivation mere moments after she was appointed.  She indicated that the Muslim headscarf is a symbol of oppression and "not something women should be wearing. "Of course, there are other minorities caught up in the ban, but they are merely unfortunate collateral damage in service of the bill’s primary purpose. It is the religious symbol worn by Muslim women that has come up repeatedly in election discourse and public debate over religious minorities in Quebec. This is only reinforced by the inclusion in Bill 21 of the previous, problematic requirement that those who give or receive public services must have their faces uncovered.  

In terms of sex-based effects, a court could consider the long association between regulating a women’s appearance (from obscenity laws banning women from going topless to courts allowing cross-examination on what sexual assault complainants were wearing at the time when they were assaulted).  It could also take into consideration the prejudicial perspectives about women who wear the niqab and the hijab, as entirely oppressed, “backward” or even threatening to Western values.  Even if unintentional (which we refute), these types of laws are “read” as state affirmation of harassment and abuse of women who wear the niqab and hijab. 

Finally, one could also consider the impact upon Muslim women and comparable Muslim men, whose religious beliefs do not ordinarily require wearing certain clothing in public.  A Muslim woman would therefore be denied the ability to teach in a public school whereas the corresponding Muslim man can continue to have his religious freedoms and teach in the same school.

If we are right about Bill 21, then the enthusiasm of the CAQ government and its supporters in Quebec to legalize discrimination by utilizing section 33 is misplaced.  They should have read the other notwithstanding clause, section 28 of the Canadian Charter of Rights and Freedoms, fittingly placed before section 33.  The intertwined history of these two sections, in which women from all over Canada fought ferociously to remove reference to section 28 from section 33, makes the operation of these two sections in the case of sex-discrimination crystal clear.

If  legislation constitutes sex-discrimination, either because it has a discriminatory purpose or discriminatory effect against a group of women, it would be a violation of section 15.   Just because a certain group of women is targeted, as opposed to all women, does not make it any less discriminatory.  It matters not whether the group targeted are pregnant women (as in legislation that used to exclude them from employment insurance benefits if they were terminated while pregnant), or Indigenous women (as in the provisions in the Indian Act that stripped them from status for marrying non-status men), or here, Muslim women who wear the hijab or niqab.

Section 28 essentially asks us to consider whether unequal rights are being afforded to men and women.   If Bill 21 violates sex equality under Charter but is permitted to stand “notwithstanding” this fact, this affords men and women unequal rights.  Men’s right to sex equality in Quebec society remains intact, whereas women’s have been attenuated.   They have unequal rights.

Section 28 was meant to stand as an absolute guarantee of gender equality, a pre-eminent and fundamental value of the Charter.  Like other fundamental values, such as the right to vote in section 3 and linguistic rights in section 16, gender equality cannot be overridden.  A ruling that applies section 28 to declare Bill 21 invalid would also ensure that women equality rights are not a political football in every election cycle for some parties to pander to discriminatory notions among some in our society.  

Thankfully, those who championed women’s rights in the Charter had the foresight to anticipate that governments might engage in such political gamesmanship.  Religious Muslim women in Quebec are therefore now able to rely on section 28 and invoke the “other notwithstanding clause” of the Charter – it was created to guarantee gender equality in tumultuous political times.  Its time has come.