John and Mary Yaremko Forum in Multiculturalism and Human Rights:Student Symposium on Women's Human Rights: March 6, 2009
Candice Telfer
Intersectionality as the Missing Link to Substantive Equality
Abstract
Since the 1989 Andrews v. Law Society of British Columbia case, the Supreme Court of Canada has consistently reiterated its commitment to substantive equality. Yet, also consistently, scholars and practitioners have criticized the Court’s jurisprudence for promoting an impoverished and inconsistent approach that has ignored the actual lived experiences of claimants in favour of a rigidly applied methodology. A major impediment to substantive equality has been the Court’s inability to consider multiple vectors of disadvantage in s. 15 claims. Through a mechanistic application of comparator methodology, the Court has forced claimants to grind down their personal experiences to overly simplified and artificial representations of themselves. Claimants cannot be young and poor; they can only be young. They cannot be women and disabled; they must be one or the other. Feminist scholarship has provided a useful tool to analyze these intrinsic links, with intersectionality theory. This paper argues that if the Court truly wishes to take a holistic approach to equality, going beyond formal notions of ‘treating likes alike’, it must adopt a methodology that takes the whole of a claimant’s experience into account. Integrating notions of intersectionality is a useful first step.
The Women’s Human Rights Resources Programme thanks John and Mary Yaremko for generously funding this Symposium