The equality pit or the rehabilitation of justice
This article examines the litigation strategies pursued by feminist lawyers and activists in Canadian Charter of Rights and Freedoms cases, focusing on the core discourse and objective in the feminist legal project - equality rights. It analyzes some of the key problems of the equality approach, including the sameness/differencdei chotomy and those problems revealed by critical race theory, in particular, deconstructionso fa ntidiscriminationl aws by Blackf eminists and women of Colour. These problems, in the author's view, point to the impossibility of equality both as a theoretical and as a practical enterprise for women, people of Calow; and other subjugated collectivities. Although the Women s Legal Education and Action Fund (LEAF) has offered a creative, contextualized, and substantive model of equality that has enjoyed some success before the courts, this model seems unable ultimately to resist the forced essentialism and assimilationist logic of the equality concept. The author, therefore, suggests that feminist litigators consider the strategic potential of an alternative approach -justice - and demonstratesh ow it can avoid someo f the pitfalls of the equality framework. After exploring some of the reasons why feminists have not pursued justice strategies, the article presents a critique of Carol Gilligan s justice/care distinction and an elaboration and adaptation of Iris Marion Young's reworking of justice from the liberal abstract rights model of material distribution to one that is concerned with relations of domination and oppression.T he authorp roposest hat feministsd evelopc ontextualizeds, ubstantive, and outcome-oriented-rather than process-oriented-approaches to justice and showsh ow sucha pproachesc ould be deployedi n Charter litigation using sections 1 and 7. By analyzing a number of past and recent Supreme Court of Canada decisions, the article concludes with some tentative examples of how recasting the issues in a justice framework offers the hope of escape from the equality trap.
Jhappan, R. (2017). The equality pit or the rehabilitation of justice. In Gender and Justice (pp. 169–216).