Women Are Themselves to Blame: Choice as a Justification for Unequal Treatment

• Author: Diana Majury
• Pages: 209-243

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Women Are emselves to Blame:



Diana Majury

Speech that seeks power to transform the world, as well as the human

subject, must embrace a political lang uage that moves the subject into the

world without locking her into the terms of ongoing socia l arrangements.

It is here that the language of lib eral feminism falls short.

A. INTRODUCTION

In this paper, I explore how the language of choice falls short in the context

of the feminist equa lity project, even though “choice” has been a central

plank of feminist movements since their inception. I argue that “choice”

does exactly what Jean Bethke Elshtain warns against in the epigraph

above; that is, choice locks us into existing social arrangements and into a

liberal perspective rather than oering movement through and beyond the

status quo of inequality.

I have, for some time, been troubled by the concept of choice a nd the

ways in which it has been deployed by feminists and within feminist de-

bates. ese debates have for me raised questions about the meaning and

signicance of choice and about our strong inclination to defer to choice.

More recently, I have been alarmed by the Supreme Court of Ca nada’s in-

vocation of choice as a shield ag ainst equality claims . As my title suggests,

I see the Court as blaming women for having “chosen” to put themselves

in a situation that they later claim to be unequal. e Court seems to see

these women a s crying inequality simply be cause things didn’t work out.



      

Unsympathetic to women perceived as wanting to have their cake and eat

it too, the Court uses respect for individual choice as the justication for

allowing that inequality to persist, unexa mined. Once the situation can be

ascribed to the claima nt’s “choice,” it seems that the Court feels that there

is no need to investigate the inequa lity claimed, to examine impact or ef-

fect. is is a decontextuali zed invocation of choice that looks at a specic

choice in a vacuum and fails to examine the limits on available alternatives,

constraints on the chooser, conicting motivations, interrelated potential

impacts, and other fac tors that mig ht aect the decision. Choice signals

the termination of the discussion rather than the beginni ng of the inquiry.

I am not sure what is operating here — perhaps a presumption that if one

chose it, it can’t be unequal or that one has to live with the consequences

of one’s choice, however unequal. Either way, such presumptions beget an

extremely punitive approach to both choice and equality. is decontex-

tualized approach to choice applied in recent Supreme Cour t of Canada

decisions is clearly problematic, from a feminist standpoint. However, rec-

ognizing the problems with the approach to choice employed by the Court

has helped me to crystallize my di scomfort with much of the feminist reli-

ance on choice which I think is similarly haunted by a decontextualized

approach. So in what follows, I oer some preliminar y thoughts on the

problems with feminist reliance on choice and on how similar problems

surface in egregious ways in the Supreme Court’s reliance on choice.

In Attorney General of Noa S cotia v. Walsh and Bona, the use of

choice as a shield against equalit y by the majority of the Court is g laring.

is case thus provides an excellent vehicle for exploring what the concept

of choice represents to the Court and how choice is used to foreclose a n

equality analysis. e decision in Wal sh is the focus of this paper. But there

are more subtle invocations of choice underlying such decisions as the ma-

jority in Gosselin v. Attorney General of Quebec and the section  analysis

by the dissent in Sauvé v. Canada (Chief Electoral Ocer). In the interest

of exami ning some quite dierent invocations of choice, I look briey at

these two decisions solely in terms of their use of choice to justify the rejec-

tion of an equality claim. While I have restricted myself to looking at these

cases for the purposes of this paper, choice is seen as an underlying issue/

assumption/good to be preferred over equality in many section  claims.

e analysis that I oer here could be applied and rened in relation to a

number of equality decisions.

six•  

On the other hand, there are cases, such as Rodriguez v. British Colum-

bia (Attorney General), in which the claimant’s choice is rejected, not de-

ferred to. In Rodriguez it was the failure to respect the claimant’s choice to

decide the timing and circumstances of her own death that gave rise to, even

constituted, the Charter breach that was claimed but not recognized by the

Court. Perhaps the lesson from cases like Rodriguez is, to borrow from a

legalism, that choice is not generally eective a s a sword on behalf of equal-

ity claimants, but is frequently employed as a shield against e quality claim-

ants. ose cases in which choice does operate as a sword, and the claimant

successfully asserts choice as a Charter right, may be cases in which choice

becomes a basis for furthering privilege. In those situations, choice is not

an equal ity-promoting strategy, but is asserted a s a right i n and of itself. I

am not able to deal w ith these aspects of choice in this paper, but ultimately

they are necessary parts of the discussion. We need to understand all aspects

of choice and its usages in order to be able to challenge how this concept is

used and to decide whether to try to de-centre or transform it.

e other context in which choice is invoked in law is in relation to

parliamentary supremacy and the choices made by legislatures with respect

to the legislation they pass or t he policies they promote. In Charter ter ms,

this is the issue of deference to Parliament. My u icklaw word search us-

ing “choice” and “Charter” sent me mostly to discussions by courts of the

issue of whether or not to defer to the choice made by the legislature; that

is, to allow the challenged legislation to stand on the basis that the govern-

ment was acting within their authority and made a legitimate and reason-

able choice. Courts’ most frequent discussion of choice is really the court’s

“choice” to avoid dea ling with the merits of a claim, described neither as

choice nor avoidance but a s deference. In this context, the courts’ reli-

ance on legislative choice is oen the justication for supporting a Char-

ter breach. It would be interesting to explore in what circumstances the

Court’s deference tends to be to legislative choice generally, t hat is defer-

ring to the right of government to make poor choices, rather than to the

choice of the specic legislation being challenged.

All of these aspects of choice are, I think, interconnected and warrant

exploration, critique and strategizi ng in terms of their relationship with

and impact on section  equality. In what follows, I oer some prelimi-

nary thoughts on some aspects of the cr itique of choice, starting with how

choice has been invoked in controversies among feminists.