Is Constitutionalism Bad for Intersectional Feminists?
Penn State International Law Review, Vol. 28, p. 427, 2010
19 Pages Posted: 2 Jan 2011 Last revised: 18 Apr 2015
Date Written: April 2015
Since Canada adopted a Charter of Rights and Freedoms in 1982, women have not always agreed about the Charter rights that would best protect their interests. Recently I conducted three studies that illustrate women’s rights-based differences: the prohibition of polygamy, the “ban” on faith-based family arbitration, and the reasonable accommodation of cultural differences. All three issues involve contests between religious freedom and sex equality, with women being found on each side. I opted to conceptualize all of these women as feminists while distinguishing them as either religious or secular. By definition, religious feminists give priority to religious freedom over sex equality, while secular feminists give priority to sex equality over religious freedom. Even though religious and secular feminists monopolized the public space, however, there were other feminists whose narratives were ignored. I refer to the missing voices as belonging to intersectional feminists.
My objective is to explore the question of whether these intersectional feminists should have access to the promise of constitutionalism. I begin pragmatically, setting out the normative and structural barriers that exclude their narratives from existing (polygamy) or potential (faith-based family arbitration or cultural accommodation) Charter litigation. Next, I move to the realm of feminist theory – specifically to exemplars of liberal, postcolonial, and deliberative feminism – to outline the responses of Susan Moller Okin, Leti Volpp, and Madhavi Sunder to the issue of the constitutional recognition of intersectional feminism. I argue that these theories may work for multiculturalism, but they are either too confrontational or not sufficiently confrontational to work for intersectionalism. While deliberative feminism is the most promising, it is also the most illusory given its reliance on dialogue’s potential in the political realm, and/or dialogue laced with rules in the legal realm. Ultimately, I conclude that the impermeability of its normative and strategic barriers deprive constitutionalism of utility for intersectional feminists. Given the allure of its promise, in short, Canadian constitutionalism is bad for intersectional feminists.
Keywords: Canada, polygamy, faith-based arbitration, reasonable accommodation
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