Originally published by I-CONnect, the Blog of the International Journal of Constitutional Law. Find the original publication .听
Minority, racialized women鈥檚 justice claims are invariably located at the intersection of equality, religious freedom, multiculturalism and reasonable accommodation. Canada鈥檚 ever-increasing diversity makes it imperative to engage meaningfully with minority rights, equality, and the accommodation of difference. Current approaches to minority rights identify certain communities as backward and majority culture as the norm, resulting in obscuring gendered, structural inequality. The nationalist imagination continues to be preoccupied with stereotypical images of racialized, immigrant women and issues of cultural difference. The accompanying reasonable accommodation discourse reinforces the racial status quo by setting the terms of the debate and the limits of tolerance.听
Drawing from feminist constitutionalism, I argue that it is imperative to formulate a policy of critical multiculturalism to better respond to diversity. Moving away from a simplistic focus on culture, critical multiculturalism addresses structural disadvantage located at the intersections of inequality, culture, and power. Rejecting an us-versus-them dichotomy, it is premised on a politics of respect, not mere toleration, while including the perspective of those to be accommodated, challenging the current anti-discrimination framework.鈥�
I rely on the following鈥�痮蹿鈥�: substantive equality, intersectionality, inclusivity, and challenging norms. Substantive equality is concerned with equality of outcome. It assesses a law鈥檚 impact by including the perspectives of women who experience its effects. Feminist constitutionalism embraces intersectionality, an analytical mode critiquing single-axis approaches to understanding inequality, exposing how鈥�. It enables the Court鈥檚 response to be鈥�. Feminist constitutionalism is committed to including the perspectives of marginalized women whose voices are excluded from mainstream discourse. Finally, it interrogates laws that perpetuate inequalities and discrimination.听
Quebec鈥檚 Bill 21, 鈥淎n Act respecting the laicity of the state,鈥� enacted in 2019,鈥� provides a compelling case study of these issues (). It imposed a ban on religious symbols in the public sphere, when giving government services, or, in certain cases, when receiving services, where necessary for security or identification purposes. The law applies to public officials in positions of authority including judges, police officers, and schoolteachers.鈥� It was justified based on secularism; religious neutrality; equality; and freedom of conscience and freedom of religion.听
Bill 21 demonstrates a populist response to anti-immigrant sentiment, particularly to Muslim immigrants鈥� purported illiberal practices. This law regulates Muslim women as symbols of the threat posed to Quebec identity, secularism and gender equality, rather than addressing their systemic disadvantage.鈥�疭ecularism is posited as a liberating force for minority women in contrast to their oppressive religious practices, yet it has resulted in greater State鈥痳egulation.鈥疪ather than fostering inclusion, equality, or democratic citizenship, this law further marginalizes Muslim women. It constructs women鈥檚 rights as oppositional to religious identity, presenting鈥疢uslim women with an either-or choice between religious faith and gender equality.鈥��疶he State focuses on the intolerability of a religious practice to the majority instead of鈥痑cknowledging the law鈥檚 disproportionate impact on Muslim women. They have been excluded from the democratic dialogue with the state although they are members of a religious group that is deeply impacted by the tensions between religious practice, gender equality and state secularism.听
Bill 21 was challenged in鈥�. In April 2021, the Quebec Superior Court upheld the law with exemptions for English school boards and the National Assembly. The case was appealed to the Quebec Court of Appeal, which heard arguments in鈥�. In February 2024, the Court of Appeal delivered its鈥�, upholding the law鈥檚 constitutionality, and reversing the exemption for English school boards.鈥� The legal arguments included issues around section 28, gender equality and鈥�痑nd the relation between these two provisions.鈥�痯rovides that notwithstanding anything in the Charter, the rights and freedoms guaranteed be implemented without discrimination between the sexes. S. 33 affirms legislative supremacy and permits the legislature to insulate a law from constitutional scrutiny, notwithstanding fundamental rights. Thus, it allows for a majoritarian understanding of democracy, rendering precarious the minority rights鈥� protection in Canadian constitutionalism. The principles of substantive equality, religious freedom, and the disproportionate impact on hijab-wearing Muslim women, were key aspects of the constitutional challenge to Bill 21.听
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鈥痠nsulating Bill 21 from constitutional scrutiny, and suspending the rights to religious freedom and gender equality. The Court rejected the application of s. 28, including in connection with the use of the notwithstanding clause, holding that it is merely an interpretive provision and does not create a standalone equality right.听
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The Court鈥檚 rejection of substantive equality and refusal to acknowledge the gendered Islamophobia faced by Muslim women subject to Bill 21 is disappointing. Without adequately interrogating the law鈥檚 purpose, the Court failed fully to consider democracy in all its aspects鈥� including the protection of minority rights鈥攚hile foregrounding legislative supremacy. The decision seems curiously disengaged from constitutional values, and out of step with the changing face of Quebec鈥檚 diversity. In the meantime,鈥�. An appeal is anticipated, where these issues will ultimately be addressed by Canada鈥檚 Supreme Court.听
Applying a feminist constitutionalist framework in responding to minority women鈥檚 claims avoids presenting them with an all-or-nothing choice between cultural autonomy on one hand and access to education, employment and political participation on the other. Insisting that minority rights be premised on substantive equality, intersectionality, and the inclusion of marginalized perspectives to challenge culturalism faced by minorities, feminist constitutionalism permits a focus on the redistribution of social, economic, and political power to excluded groups.
Dr. Vrinda Narain is Associate Professor at the Faculty of Law, 平特五不中.鈥�疕er research and teaching focus on constitutional law, social diversity and鈥痜eminist鈥痩egal theory.听
She is the author of two books:鈥��(University of Toronto Press, 2008) and鈥��(University of Toronto Press, 2001).鈥疕er current research and teaching interests include constitutional law, feminist legal theory, social diversity and law, postcolonial studies and law and critical race theory.听
Professor Vrinda Narain is鈥�the 2017 recipient鈥痮f the Canadian Institute for the Administration of Justice鈥檚 Charles D. Gonthier Research Fellowship. She was Associate Dean, Academic, at the 平特五不中 Faculty of Law from 2016 to 2019.听
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