The Regulation of Gender in the Co-Existence of Levels of Law: Conversations between Europe and Canada

Introduction

Whatever their political histories, through the process of federalization, the European states and the Canadian provinces both established superimposed levels of law. As a result, they have multiplied the risk of contradictions or, at the very least, paradoxical interpretations between European Union (EU) rules and local, national, or provincial rules. Added to this layered “cake” is the overlay of international human rights and the rules defended by various international courts of justice, which regulate certain national practices, sometimes being in conflict with their national laws, thereby obliging the states to amend them. It is notably this that we observe in the regulation of the models of gender relations. In Europe, for example, the European Court of Justice now decides cases of conflict between European citizens and the legal systems of their country. This possibility has recently led the court to render decisions that have forced the states to overthrow their existing legislation, especially in the area of equality of rights between men and women.

By showcasing papers on the evolution of the European legal framework and others on the legal system in Canada and, more specifically, in Quebec, this issue of the Canadian Journal of Women and the Law helps shed light on the dynamics of gender as they are defined, put into practice, or transformed by legal conflicts and by the increasingly porous and evolutionary dimension of rights. To achieve this, we have chosen to focus on cross-function and decompartmentalization to comprehensively understand the “chain of law”¹ through the lens of gender²—the law in this sense is being conceived as an “ongoing normative creation process”³ that produces the “subordination of women,”⁴ while also producing gendered relations.⁵

This dynamic is effectively considered in different areas of the law or its application, which this collection of articles presents as a forum for discussion; indeed, the contributions focus on the spheres of civil law (in family law, victim compensation, and child protection), labour law, social law, and penal law. This discussion reveals a continuum: the law is indeed gendered or gender blind,⁶ and promotes research on gender cross function,⁷ which cannot be reduced to certain, specific regulated areas.⁸

Next, the intent is to link various layers in order to, once again, understand more clearly the dynamics at play in areas of law. Thus, some articles connect national law, European law, and international law through their various expressions (Code, case law, edicts, guidelines, conventions) to identify the hiatus and evolution of these rights. Other texts interrogate the law, its development, its implementation, or its application, by focusing more on parliamentary debates, on the use of law by civil society, or by analyzing the practices and representations of actors in the judicial world. In doing so, they reveal certain contradictions, such as how the law, supposedly a means of reducing inequalities, actually contributes to producing discrimination, associated with power structures that reflect various social relations.

Does this dynamic translate in the same way on both sides of the Atlantic? And does it impact women positively or negatively, with the same weight, depending on whether or not they are subject to other forms of discrimination (more or less recognized in law, depending on the context), especially racism? In brief, how does the cycle of producing and applying the rules, as understood through the writing of the law, and then its translation into jurisprudence, apply to issues of social gender relations; to social, economic, and political hierarchies between men and women; to the definition of social gender identities; and to professional, matrimonial, familial, penal status; and so on, within the context of coexisting national, provincial, and supranational levels of the law?

The issue of language and the production of legal terminology, at the local or community level, represents a way to address these complex processes. In certain cases, the law intervenes in the social definition of sex, sexual norms, and even in the definition of gender itself. In other cases, this...