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Chapter 19 Canadian Approaches to Equality Rights and Gender Equity in the Courts Kathleen E. Mahoney Introduction [T]he history of trie struggle for human rights from the eighteenth century on has been the history of men struggling to assert their dignityand common humanity against an over-bearing state apparatus. The more recent struggle for women's rights has been a struggle to eliminate discrimination, to achieve a place for women in man's world, to develop a set of legislative reforms in order to place women in the same place as men It has not been a struggle to define the rights of women in relation to their special place in the societal structure and in relation to the biologicaldistinction between the two sexes. Thus, women 's needs and aspirations are only nowbeing translated into protected rights.1 Equality has always been a very difficult concept forjudges, lawyers, law professors, and other students of the lawto define or describe. The reason is, asJustice Rosalie Abella of the Ontario Court of Appeal puts it, that Equality is evolutionary,in process as well as in substance, it is cumulative, it is contextual, and it is persistent. Equality is, at the very least freedom from adverse discrimination. But what constitutes adverse discrimination changes with time, with information, with experience and with insight. What we tolerated as a society 100, 50 or even 10 years ago is no longer necessarily tolerable. Equality is thus a process, a process of constant and flexible examination, of vigilant introspection, and of aggressive open-mindedness. If in this on-going process we are not always sure what "equality" means, most of us have a good understanding of what is "fair."2 And the way women's rights are treated in all areas of the world, in many ways is not fair. It is now widely documented and accepted that 438 Kathleen E. Mahoney international norms and institutions were designed by men primarily to serve men's interests.3 Women have barely been visible in systems that create, interpret, and apply laws.4 If women are served by them, it is in a derivative way—when they suffer violations in the same way as men. This privileges the male world-view and supports male dominance in the international order. Issues of concern to men are seen as general human concerns, while those of women are relegated to a specialized limited category of women's rights that under analysis, do not amount to "human rights" as we know them. The purpose of this paper isto first showhowbarriers to the achievement of gender equality for women are created by theories of equality that do not work and by gender bias injudicial decisions. Unless both these problems are dealt with, women will not achieve legal or social equality. The second purpose of the paper is to suggest some theoretical and practical strategies that may improve the status, recognition, and implementation of women's rights such that they are given the same weight and respect as men's rights. The Problem One of the primary emphases of the United Nations Charter as well as the UniversalDeclaration isequality.5 The International Covenants on Civil and Political Rightsand on Economic, Social, and Cultural Rights both give legal force to the equality guarantees but do not define them. To fill the gaps, the United Nations Commission on the Status of Women labored for many years—more than thirty—to amplify the general discrimination prohibitions. It brought to light almost all the areas of life in which women are denied equalitywith men. As a result of these efforts, several declarations and conventions were drafted and subsequently ratified by many countries6 —the central, most important , and comprehensive document being the Convention on theElimination of All Forms of Discrimination Against Women (the Women's Convention).7 It deals with civil rights and the legal status of women, reproduction, and the impact of cultural norms on gender relations. It emphasizes rights of political participation, nationality rights, nondiscrimination rights in education, employment, and economic and social activities. It asserts equal rights and obligations of women and men with regard to choice of spouse, parenthood, personal rights, and command over property. It requires that rules intentional or unintentional treating women differently from men cannot be tolerated, particularly when they are based on prejudice and inaccurate generalizations about women. Although there are a number of provisions requiring women to be treated the same as hypothetical men in similar [3.139.72.78...

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