The Law Test for Discrimination and Gendered Disability Inequality

AuthorFiona Sampson
Pages245-273

seven
e Law Test for Discrimination and
Gendered Disability Inequality
Fiona Sampson
A. INTRODUCTION
Contextualized equality rights arguments, specic to the experience of
gendered disability, constitute a potentially viable mechanism to advance
the equa lity rights of disabled women. However, the successf ul advance-
ment of such ana lyses has become more di cult in the p ost-Law (Law v.
Canada (Minister of Employment and Immigration) equality ri ghts era,
with the introduction of a new, more onerous, and complicated test for
discrimination. e Law test for discr imination has compounded pre-ex-
isting problems with section  Charter-based equality rights analyse s, and
introduced new challenges for equality claimants seeking to advance claims
pursuant to section . e introduction of these new challenges comes at
a time in Canadian history when those who are most disadvantaged in our
society, such as disabled women, are experiencing increased disadvantage
as a result of the neo-liberal political-economic agenda. is reality ma kes
the need to overcome the challenges associated with the Law test, and the
need to fu lll the potential of section  to protect and promote equalit y,
more important than ever.
is chapter wil l provide a critique of the components of the Law test
that are of particular concern from a gendered disability perspective: the
comparator group a nalysis and the injury to dignity analysis. It will also
include a critique of the one post-Law decision to d ate in which gendered
disability discrimi nation has been argued, Auton v. British Columbia. e
      
analysis of this c ase will be used as a prism through which the problems
with the Law test will be exposed a nd assessed. e paper wi ll conclude
with an analysis of why the wea knesses with the Law test for discrim ina-
tion need to be challenged, and why section  equality analyse s have to be
more honest and direct in their approach to provide for meani ngful sub-
stantive equality, and more than just symbolic rhetoric.
B. THE TEST FOR DISCRIMINATION
e Cour t’s early interpretation of section  of the Charter in Andrews
v. Law Society of British Columbia and R. v. Tur pi n establ ished equality
rights tests that were quite helpful indicators of whether a person’s equality
rights had been violated. Several years aer the release of Andrews and Tur -
pin the Court became divided about how to interpret and apply section ,
and some members of the Court adopted more restrictive interpretations of
equality than ha d been stated in Andrews and Tur pi n. In  the Court,
in an apparent eort to clarify and har monize its equality rights analyses,
released its unanimous decision in Law v. Canada — a decision that has
seriously narrowed the judicial scope of Charte r-based equality rights, and
made it more dicult to advance successful equality rig hts claims.
In the rst decisions involving the application of section , it was de-
cided that the purpose of the Char ter’s equality rights guarantees was “to
remedy historical disa dvantage.” e major goal for equality rights ad-
vocates wa s to ensure that the Charter equa lity gua rantees provided for
substantive equality, wh ich takes into account systemic disadvantage a nd
provides for an equality of results, rather than just formal equality. Formal
equality, which provides that likes be treated alike, provides l ittle or no
protection against discrimination for most disadvantage d persons. For-
mal equa lity invokes the similarly situated test that holds that an equal-
ity violation ex ists where there is dierent treatment of simila rly situated
individuals. Formal equa lity does not take into account the ways in which
dierent groups in society have experienced systemic disadvantages. Under
a formal model of equality, the disadvantaged only get equality in the areas
of life in which they are most like the dominant norm; Catharine McK in-
non has described the limitations with formal equalit y as “if men don’t
need it, women don’t get it. e fu ndamenta l dic ulty w ith forma l equal -
ity theory is that it makes disadvantage invisible through a consideration of
equality in terms of sameness and di erence, rather than in terms of domi-

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