INTERSECTIONAL FEMINISM, RACIAL CAPITALISM, AND THE COVID-19 PANDEMIC.

• Author: Faraday, Fay

1. Introduction

   A common narrative during the COVID-19 pandemic correctly observed that lockdowns which stripped public interactions to the bare minimum exposed the economic and social fault lines of Canadian society. (1) Since March 2020, women--particularly racialized (2) women in jobs with low pay--have disproportionately borne the brunt of the pandemic's negative economic impacts. The fact that racialized women face systemic economic inequality and marginalization in Canada is not new. It is the structural foundation of an economy and sex-segregated labour market rooted in racial capitalism. The pandemic merely made the disparities impossible to ignore. At the same time, a reckoning with the roots of structural inequality has become ever more pressing because, coincident with the pandemic, mass politicization and mobilization accelerated on a global scale in response to police killings of Black people, (3) state violence against Indigenous land defenders, (4) rising fascist movements, (5) anti-Asian violence, (6) and the climate emergency. Intertwined social solidarity movements have forged deeper connections in the heat of these collective traumas. And the pandemic-induced period of reflection and questioning brings urgency to widespread demands for deep social and economic transformation. These movements demand that we confront who the imagined "we" is in the mantra that "we're all in this together" (7) and who benefits from that depoliticized narrative framing.

   At the same time that social and economic activity narrowed, however, so too did law- and policy-making narrow its focus to address the impact of the pandemic. That latter dynamic exposed how governments' active choices to advance different values and priorities through law and policy either exacerbated or lessened the harms of the existing social and economic fault lines. Analyzing the connections between political choices and social and economic consequences, where the immediacy of policy impacts is reflected in real time in COVID-19 exposure, infection, and death facilitates a deeper understanding of how systemic inequality is created and perpetuated through law. By comparing pandemic-era decision-making by different Canadian jurisdictions, the paper aims to contribute to deepening the legal analysis of systemic discrimination, and to understanding how individual laws and policies build upon, accumulate, imbricate, and institutionalize systemic discrimination.

   Part II outlines the intersectional feminist political economy perspective anchored in a frame of racial capitalism that is used to analyze the gendered and racialized contours of the pandemic "she-cession." (8) Part III surveys how women--particularly racialized and poor women--have faced greater risks from COVID-19, lost more jobs, taken on more unpaid work, and benefited less from the economic recovery than men. Part IV compares divergent legal and policy responses to precarious work and access to paid sick leave adopted by Canadian governments which have implications for women's economic security. Undertaking a comprehensive analysis of all provincial, territorial and federal policies on these issues is beyond the scope of this paper. Accordingly, comparisons are made between two jurisdictions which are selected because of their contrasting approaches. First, the paper compares the legal and policy choices made by Ontario and British Columbia to address the pandemic risk posed by multiple job-holding in the long-term care sector. Second, it compares the federal and Ontario governments' policy choices with respect to paid sick days for workers. This section asks: If the pandemic threw into stark relief the fault lines of an economy built on systemic discrimination, have governments' responses targeted those fault lines? Do government choices enhance equality or entrench inequality? Part V considers how the pandemic's disruption presents a generational opportunity for real change. Rethinking the meaning of essential work, centring care work and an ethic of care in a post-pandemic recovery offer the chance to transform economic and social structures to enhance decent work and substantive intersectional equality. But in order to seize that opportunity, an unblinkingly honest regard must be trained on the structural inequality the pandemic brings to light.

2. Disciplinary Silences in Law and the Pre-Pandemic Divide

   For decades, economists and social scientists have documented the contours of Canada's sex- and race-segregated labour market which impoverishes women and racialized communities. (9) And while Canadian legal scholarship has analyzed how intersecting structural racism and sexism are baked in at the front end of making laws and policy that govern economic and social security, (10) courts have been much slower to acknowledge and analyze these realities, resulting in the under-developed jurisprudence on this point. (11) By its nature, litigation examines discrimination in the rear view mirror, after a harm has been inflicted. As a result, in legal rulings discrimination is depicted as an aberrant disruption within an existing environment which is taken as given. How that environment or "context" is shaped by active decisions that produce unequal outcomes that are the norm for large portions of the population is typically unquestioned. (12) This "disciplinary silence" (13) facilitates a predominantly White legal profession's (14) default to individualist and neoliberal explanations for social and economic difference. (15) Such habits of thought leave lawyers and judges struggling to distinguish between formal and substantive equality and to identify systemic discrimination. (16) Writing about the health profession's disciplinary silences on structural racism, Sume Ndumbe-Eyoh proposes that the way forward

   requires moving from colour-blind or race-neutral approaches to a view that racism's contemporary manifestations are not arbitrary and mysterious, but systemic and knowable. Racial inequities then stop being seen as random but as the natural product of oppressive racist norms, values and actions. Doing so subverts the assumptions of everyday life which work to uphold and bolster White dominance and racial inequities. (17) Her remedial prescription is equally instructive for law. The first step in breaking the disciplinary silence is to name the dynamics and outcomes of systemic discrimination. Drawing on frameworks of feminist political economy and racial capitalism helps to deepen the analysis of how systemic discrimination operates in law and policy-making during the pandemic. Rather than looking through the rear-view mirror, this paper looks at the construction of the unequal economic landscape and the impact of government decision-making in real time.

   Feminist political economy is an interdisciplinary analytical approach that examines how gender is socially constructed and operates as an ideology and field of power that shapes individual identities, social relations, institutions, structures, governance, laws and policies in a way that privileges the masculine and devalues the feminine. Feminist political economy

   makes explicit the linkages between economic, social and political spheres. It analyzes how power is exercised not only through coercive means, but also materials and ideas, and how these power relationships shape the institutional and ideological formations where gender identities and status are constructed. (18) Critically, feminist political economy highlights the role of women's unpaid labour as an indispensable precondition for the paid labour that traditional economics measures. It accounts for the economic value of this labour as well as the "economic, social, and opportunity costs women incur while fulfilling care roles." (19) In this way, feminist political economy brings to light "the relationship between micro and macroeconomics, and how the two intersect to reproduce and shape gender inequality." (20)

   At the same time, the analytical perspective of racial capitalism as developed by Cedric J. Robinson recognizes that, from its origins pre-dating the Atlantic slave trade, "the development, organization, and expansion of capitalist society pursued essentially racial directions, so too did social ideology." (21) Jodi Melamed writes that capitalism depends upon extraction and accumulation through "relations of severe inequality among human groups" which require "loss, disposability, and the unequal differentiation of human value." (22) In this context, racism is the ideology that "enshrines the inequality that capitalism requires." (23) Capitalism has been operationalized through the organizing principle of racialization to such an extent that "capitalism is racial capitalism" (24) and racism "permeate[s] the social structures emergent from capitalism." (25) In the words of Kendra Strauss

   A focus on racial capitalism requires greater attention to the essential processes that shaped the modern world, such as colonization, primitive accumulation, slavery, and imperialism ... racial capitalism requires that we place contemporary forms of racial inequality in a materialist, ideological and historical framework. (26) All these institutions and practices produce and sustain racialized divisions of labour and the devaluation of labour by racialized workers to facilitate the extraction of surplus value.

   Without a doubt, Canada's pre-pandemic labour market reflects the history and continued operation of systemic gendered and racialized segregation and devaluation of labour. This sex- and race-based segregation is so normalized that, although we are immersed in it every day, it is often effectively unseen by people of privilege. As a corrective, intersectional feminist political economy and racial capitalism frameworks focus attention on those unobserved elements to generate insight into the active, systemic way that power--that is ideological, cultural...