The Law Test for Discrimination and Gendered Disability Inequality
Author | Fiona Sampson |
Pages | 245-273 |
seven
e Law Test for Discrimination and
Gendered Disability Inequality
Fiona Sampson
A. INTRODUCTION
Contextualized equality rights arguments, specic 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 lll 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 aer 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 eort 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 dicult 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 dierent treatment of simila rly situated
individuals. Formal equa lity does not take into account the ways in which
dierent 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 dic 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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