Women and the Canadian State/Les femmes et l'Etat canadien 9780773566095

Table of contents :
Contents
Acknowledgments
Introduction: English
Introduction: Français
1 Reminiscences and Reflections on the Twentieth Anniversary of the Commission's Report
2 The Canadian Government and the Commission's Report
3 State Initiatives: Impetus and Effects
4 Do State Initiatives Make a Difference?
5 Patriarchy and Paternalism: The Legacy of the Canadian State for First Nations Women
6 The Canadian State and Indian Women: The Struggle for Sex Equality Under the Indian Act
7 Indian Women, Sex Equality, and the Charter
8 Families and Family Law
9 Feminist Interventions and State Policy
10 Pay Equity in Manitoba
11 Pay Equity: Not Just a Matter of Money
12 Pay Equity in Quebec
13 Les services féministes – de I'antiétatisme à I'intégration subsidiaire
14 Considering the Impact of the Battered Women's Movement on the State: The Example of Manitoba
15 Inuit Women and Violence
16 Reminiscences of the Commission Chair
17 The Machinery of Women's Policy: Implementing the RCSW
18 Institutional Structure as Change Agent: An Analysis of the Ontario Women's Directorate
19 Structures institutionnelles en condition féminine – le cas du Conseil du statut de la femme du Québec
20 Disappearing Women: Racial-Minority Women in Human Rights Cases
21 The Entire Woman: Immigrant and Visible- Minority Women
22 Les femmes et I'État – questions de santé reproductive
23 L'État et les groupes de femmes: un partenariat pour le meilleur ... ou pour le pire?
24 Competing Representations: The Politics of Abortion in Canada
25 Les femmes et I'État canadien
Notes

Citation preview

Women and the Canadian State Lesfemmes et I'Etat canadien

A collection of essays presented at a conference to commemorate the twentieth anniversary of the release of the report of the Royal Commission on the Status of Women, Women and the Canadian State both celebrates and critically assesses the Report. Women bureaucrats, activists, and academics consider its impact, successes, and failures from a variety of viewpoints and reflect on the experience of Canadian women since its publication in 1970. Awareness of the history of the interaction between women and the Canadian state is central to understanding and evaluating action in the present and in the future. Women and the Canadian State makes an important contribution to the ongoing debate. CAROLINE ANDREW is professor of political science, University of Ottawa. SANDA RODGERS is dean and professor of law, University of Ottawa.

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Women and the Canadian State Lesfemmes et L'Etat canadien X

EDITED

BY/

PUBLIE SOUS LA DIRECTION DE

CAROLINE ANDREW & SANDA RODGERS

McGill-Queen's University Press Montreal & Kingston • London • Buffalo

© McGill-Queen's University Press 1997 ISBN 0-7735-1423-6 (cloth) ISBN 0-7735-1513-5 (paper) Legal deposit first quarter 1997 Bibliotheque nationale du Quebec Printed in Canada on acid-free paper McGill-Queen's University Press is grateful to the Canada Council for support of its publishing program.

Canadian Cataloguing in Publication Data Main entry under title: Women and the Canadian state - Les femmes et 1'etat canadien A collection of essays presented at the conference Women and the Canadian State, held at the University of Ottawa, Nov. 1990. Includes bibliographical references. Includes some text in French. ISBN 0-7735-1513-5 (pbk.) ISBN 0-7735-1423-6 (bound) 1. Women - Canada - Social conditions - Congresses. 2. Women - Legal status, laws, etc. - Canada Congresses. 3. Royal Commission on the Status of Women in Canada. Report of the Royal Commission on the Status of Women in Canada — Congresses. I. Andrew, Caroline, 1942- . II. Rodgers, Sanda, 1947. III. Title: Les femmes et 1'etat canadien. HQ1236.5.C2W6255 1997 305.42'o971 C96-990111-9

This book was typeset by Typo Litho Composition Inc. in 10/12 Baskerville.

Contents

Acknowledgments ix Introduction / CAROLINE ANDREW and SANDA RODGERS

English

xi • Francais xix

1 Reminiscences and Reflections on the Twentieth Anniversary of the Commission's Report/ LORENNE M. G. CLARK

3

2 The Canadian Government and the Commission's Report MONIQUE BEGIN

12

3 State Initiatives: Impetus and Effects FREDA L. PALTIEL

27

4 Do State Initiatives Make a Difference? CATHERINE FRAZEE

52

5 Patriarchy and Paternalism: The Legacy of the Canadian State for First Nations Women MARY ELLEN TURPEL-LAFOND

64

6 The Canadian State and Indian Women: The Struggle for Sex Equality Under the Indian Act/ WENDY MOSS 79 7 Indian Women, Sex Equality, and the Charter/ TERESSA ANNE NAHANEE 89

vi Contents 8 Families and Family Law 104

MARY JANE MOSSMAN

9 Feminist Interventions and State Policy CAROL SMART

1 1O

10 Pay Equity in Manitoba NANCY SULLIVAN

116

11 Pay Equity: Not Just a Matter of Money PAT ARMSTRONG

122

12 Pay Equity in Quebec MARIE MURPHY

138

13 Les services feministes - de 1'antietatisme a 1'integration subsidiaire DIANE LAMOUREUX

145

14 Considering the Impact of the Battered Women's Movement on the State: The Example of Manitoba / J A N E URSEL 155 15 Inuit Women and Violence MARTHA FLAHERTY

l8o

16 Reminiscences of the Commission Chair FLORENCE B I R D

185

17 The Machinery of Women's Policy: Implementing the RCSW / MAUREEN O'NEIL and SHARON SUTHERLAND

197

18 Institutional Structure as Change Agent: An Analysis of the Ontario Women's Directorate / NAOMI ALBOIM 220 19 Structures institutionnelles en condition feminine - le cas du Conseil du statut de la femme du Quebec / MARIE LAVIGNE 228 20 Disappearing Women: Racial-Minority Women in Human Rights Cases / NITYA IYER 241 21 The Entire Woman: Immigrant and VisibleMinority Women/JOANNE ST. LEWIS 262 22 Les femmes et 1'Etat - questions de sante reproductive / MARIA DE KONINCK 268

vii

Contents

23 L'Etat et les groupes de femmes: un partenariat pour le meilleur ... ou pour le pire? / DYANE ADAM 279 24 Competing Representations: The Politics of Abortion in Canada JANEJENSON

291

25 Les femmes et I'Etat canadien CLAIRE BONENFANT

Notes 317

306

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Acknowledgments

We gratefully acknowledge the generous support of: Department of Justice, Canada Social Sciences and Humanities Research Council of Canada Department of the Secretary of State of Canada Faculty of Law, Common Law Section, University of Ottawa Faculty of Social Sciences, University of Ottawa University of Ottawa, School of Graduate Studies and Research who made the conference and this publication possible. Nous exprimons notre vive reconnaissance aux organismes suivants: Ministere de la Justice, Canada Conseil de recherches en sciences humaines du Canada Secretariat d'Etat du Canada Faculte de droit, Section de common law, Universite d'Ottawa Faculte des sciences sociales, Universite d'Ottawa Universite d'Ottawa, Ecole des etudes superieures et de la recherche qui, grace a leur appui, ont rendu possibles la tenue de la conference et la publication de cet ouvrage.

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Introduction CAROLINE ANDREW AND SANDA RODGERS

This collection of papers, originally presented at a conference on "Women and the Canadian State" that was held at the University of Ottawa in November 1990, considers the impact, successes, and failures of the report of the Royal Commission on the Status of Women. Twenty years had passed since the Commission, chaired by the Hon. Florence Bird, had completed its work and released its report in 1970. Those two decades seemed to provide an appropriate period for measuring the impact of the report and assessing its achievements and its shortcomings. The beginning of the last decade of the twentieth century also seemed to present an excellent opportunity to appraise the progress made by women in Canada, to determine the tasks that remained, and to consider the most appropriate mechanisms for achieving those goals. Lessons could be learned from a critical re-evaluation of the strengths and weaknesses of the report and of the victories and setbacks of the women's movement - lessons that could be used to further a feminist agenda for the 19905. That twenty-year period also seemed long enough to warrant an assessment of the evolution of models of social action as they applied to the interaction of women with the Canadian state. At the same time, it was short enough to make it possible to conduct that assessment with the participation of women who had played a major role in the research for the report and in its preparation and implementation, as well as in the continuing interaction between women's groups and the state. There had, of course, been on-going interaction between women's groups and the Canadian state prior to the publication of the Royal Commission's report. However, the two decades following the report

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have witnessed both an intensification and an institutionalization of those links. It was this phenomenon that we wished to examine and evaluate. Has the relationship between the interests of various groups of women and the state changed in those two decades? Why? What factors have led to the intensification of the interaction between Canadian women and the federal and provincial governments? How does this relationship operate? What is its impact on the lives of Canadian women? Has the institutionalization of the relationship between women's groups and bureaucrats, or "femocrats," assisted or hindered the women's movement in the achievement of its goals? The conference was organized to provide a forum within which Canadian women could consider these questions. These questions also have a bearing on the evaluation of the changing place and role of women within the Canadian polity. It is crucial that we engage in a continuing evaluation of the position of women within the Canadian state in order to determine whether or not the roles and status of women have, in fact, improved within the structures of the state. Has the position of women in Canada been enhanced since the publication of the report in 1970? And in assessing any improvement that may have occurred, which women are we talking about? A crucial element of this evaluation, and of the political "strategizing" that it is designed to inform, requires an assessment of how the state has operated and responded to the concerns of women. Has state action helped or harmed women? And, more particularly, which women? Which issues that impact on women have attracted the greatest allocation of resources by the state? Which have attracted the greatest attention? In which areas has there been real progress? What key factors have facilitated these improvements? These pragmatic questions are related to a variety of highly important theoretical questions that can be enlightened by an examination of the relationship between the women's movement and the Canadian state. The nature of the modern state, the extent of its autonomy, the effectiveness of state action, the dynamic of the relationship between the state and civil society may all be illuminated by a study of the rich experience of women with the Canadian state. The broad-ranging nature of the feminist challenge to the traditional definition of state action and the diversity of organized interactions between the state and the women's movement provide an important body of material for the consideration and study of these theoretical questions. The last decade has seen the development of a vigourous and challenging theoretical literature and a re- examination of the relationship between the women's movement and the Canadian state. Particularly

xiii Introduction noteworthy in this regard is the special issue of Resources for Feminist Research, "Feminist Perspectives on the Canadian State," prepared under the direction of Sue Findlay and Melanie Randall, as well as Feminist Organizing for Change by Adamson, Brisken, and McPhail (1988), and Chantal Maille's Les Quebecoises et la conquete du pouvoirpolitique (1990). The creation in 1986 of the Canadian Journal of Women and the Law/Revue Juridique La Femme et Le Droit and the publication in 1989 of an annotated bibliography ("Canadian Feminist Perspectives on Law") in Resources For Feminist Research by Elizabeth A. Sheehy and Susan B. Boyd, attest to the richness of the feminist theoretical discourse. It was in this context that we decided to organize a conference to commemorate the twentieth anniversary of the publication of the Report of the Royal Commission on the Status of Women and to reflect on the experience of Canadian women with the Canadian state. It was our intention to bring together women who had worked or still worked within state bureaucracies, within the women's movement, and within the academy to discuss, evaluate, and interpret that interaction in the twenty years following the release of the report. It was our view that the critical literature on the relationship between the women's movement and the state would benefit from a dialogue between those women who were actors on behalf of the state and those who acted outside the state, whether in the academy or in the women's movement. An adequate analysis of the relationship between women and the state can only emerge from a debate about, and the testing of, various interpretations of that relationship in the presence of all of the actors who had been, and continue to be, involved. For this reason, it was our intention to ensure representation of women from each of the various perspectives. In particular, we sought to include women who had acted within the bureaucracies - the "femocrats," whose voice had been relatively absent in the literature on the experience of women with the Canadian state. Because they had served as state actors and could both analyze their own experience and actions, and debate the analysis and critique of state action offered by academics and activists, the participation of femocrats was essential, in our view. We hoped to facilitate direct debate, reflection, and reassessment from these differing standpoints, and in this way, to add an important dimension to the efforts to synthesize and interpret twenty years of active engagement with the state. This collection of papers is the result of that effort. The papers represent the various viewpoints of state actors, actors from within the women's movement, and university scholars. Readers will note that the fit between individuals and these roles is a complex one; several participants have played several of these roles during the twenty years since

xiv Caroline Andrew and Sanda Rodgers

the publication of the report, and some have been involved with the feminist agenda in all three capacities. The substantive issues addressed by conference speakers include the concerns of First Nations women, as well as those related to family law, pay equity, violence against women, immigrant and visible-minority women, and health and reproductive issues. The choice of issues, from among the vast number of questions of importance to women, was not an easy one for it meant leaving important concerns unexamined. Indeed, the conference agenda was criticized for failing to include all voices and to sufficiently acknowledge that an examination of issues of racism, ablebodiedness, class, and the experience of lesbian women is essential to an analysis of the interaction of the women's movement with the Canadian state. In our choice of topics for the conference, however, we wanted to focus on certain issues that were central to the Royal Commission's report and on other matters that had become major questions on the policy agenda since its publication. We also had to choose examples from different provincial jurisdictions. These choices were made, in part to look at interesting innovations (pay equity in Manitoba, for example) and in part to look at different models (such as the advisory council in Quebec and the government agency in Ontario). Conference participants addressed the question whether state initiatives make a difference and discussed the nature of institutional structures. They examined the impact of, and explanations for, the state's response to the needs of Canadian women, and they considered the implications of this analysis for future strategy. An attempt was made to identify the loci of successful intersections between political action and state response, and to understand how these loci developed, to determine who acted for the state and for the activists, what was the nature of the struggle for reform, which strategies were successful and why, and whether those strategies are still relevant to the political agenda. In the closing session, Claire Bonenfant turned her attention to the agenda for the next twenty years. Not unexpectedly, not all participants shared the same views on the issues discussed at the conference. If a majority view may be said to emerge from the papers in this book, it is one which suggests that the model that best describes the interaction between the state and Canadian women involves an unstated alliance between women working within the state structure and those working within the women's movement - a creative, tacit coalition of "insiders" and "outsiders." Those who adhere to this view, including Catherine Frazee and Freda Paltiel, argue that the experience of women with the state has been a relatively positive one. They believe that this outcome results from the com-

xv Introduction

bined efforts of state actors, including bureaucrats and politicians, and of actors pressuring from the outside. They see the organized women's movement, acting as a very broad coalition of women's groups, as successfully speaking for women's interests. In the view of Naomi Alboim and Nancy Sullivan, neither "insider" nor "outsider," acting alone, could have been as successful. Rather, it is the juxtaposition of political pressure from women's groups with strategic bureaucratic action from a committed group of insiders that led to state action in favour of women. Indeed, Florence Bird's own recollection of the Commission's work, and in particular of its public hearings, supports this view. The Commission saw its report as a document that would enable women outside the public sector to increase pressure on the government and that would thereby lead to social change. Other conference participants offered a less optimistic and more complex analysis of the feminist experience. Both Jane Jenson and Pat Armstrong argued for the importance of "meaning," and the struggles over meaning, as a crucial factor in evaluating the interactions of women and the state. Issues such as abortion or pay equity depend critically for their outcome on how they are defined, and the ability to successfully determine meaning is therefore fundamental. Mary Jane Mossman and Carol Smart are more clearly pessimistic about state action. In their view, state action, including legal action in the context of family law, does not - and perhaps cannot - lead to improvements in women's position in society. Rather, both the nature of the state and the nature and form of state action are seen as imposing fundamental limits on the possibility that state action can be beneficial to women. Lorenne Clark argues that the same barriers that restrict the women's movement within Canadian society - in particular, the division of activity into public and private spheres - impose limits on the action that the state can take for the benefit of women. The norm of the state is male domination; the state is therefore unable to organize an effective and integrated response to women's inequality. Nitya Iyer speaks resonantly of the failure of anti-discrimination law to make visible and to take seriously the experience of racial-minority women. In her view, law as a construct of social change responds only to the perspective and assumptions of the dominant group that originally formulated the structures for reform. Law can respond only to the norm (white men) and to those who are only "one step away" from the norm (white women and black men). Martha Flaherty, of Pauktuutit, the Inuit Women's Association, notes the failure of the Canadian state to concern itself with the issues of importance to her community and calls for reform in judicial training. She notes that the Royal Commission's report responded to some of the needs of some Canadian

xvi Caroline Andrew and Sanda Rodgers

women and overlooked the needs and experience of many others. Both Flaherty and Teressa Anne Nahanee call on the Canadian state to make the minimum protections of the Canadian Charter of Rights and Freedoms available in a meaningful way to the women of their communities. Each notes the critical role that must be played by the women's groups that specifically speak for their communities if any hope of a meaningful state response is to be realized. Wendy Moss underlines the limited ability of government policy-makers who are not members of the affected community to successfully implement changes seen as necessary by these groups. Marie Murphy, in outlining judicial decisions relating to pay equity, also stresses the limits to state action, attributing them to the failure of state-appointed judges to further gender equality. The enlightened views of some women judges serve only to highlight the overall conservatism of the judiciary and the resulting resistance to social change. Others who disagree with the insider/outsider model do so in terms of its ability to describe accurately the role of the women's movement. Political pressure exerted from the outside by the women's movement may not be in harmony with action conducted on the inside. Those who apply outside pressure may have goals or priorities that differ from those of femocrats and politicians working from within. Jane Ursel takes the view that external political pressure can act to undermine internal strategies and can work at cross-purposes with, or even contradict, insider strategy rather than complement and enhance the political agenda. Diane Lamoureux, on the other hand, argues that state involvement co-opts the agenda of the feminist movement. In her view, the orientation towards the delivery of services taken by the women's movement, coupled with government funding of these services, raises important questions regarding the nature and direction of the feminist movement. Engagement with the state has reduced the autonomy of the women's movement. Dyane Adam echoes many of these concerns in looking at the women's health movement in its relations with the state. The state's failure to create real partnerships with women's groups increases the dangers of co-optation. Maria De Koninck also deals with the question of the state's role in limiting the autonomy of women - in this case, the autonomy of individual women and their own health. The medicalization of reproductive health questions has resulted in increased social control over women, with less importance given to women's own knowledge. Some of the participants emphasized that the progress made, or the setbacks suffered, are the result of a specific historical conjuncture, not solely of any particular pattern of interaction between academy, bureaucracy, and political movement. Conference speakers noted that

xvii

Introduction

the current political and economic climate differs markedly from that of the 19705 and igSos. Monique Begin argues persuasively that the model appropriate to those decades is no longer a workable one in the iggos. She suggests that the coalition of insiders and outsiders, while effective in the political and economic climate of that period, could not have the same impact today. Marie Lavigne also raises questions about new directions in the current political climate and their impact on relations between the state and the women's movement. The dismantling of the welfare state, a greater recognition of the inherent limits of state action, recent moves towards privatization and, still more importantly, towards decentralization - all of these increase the need for vigilance on the part of the women's movement in order to protect the gains of the past twenty years. Claire Bonenfant's closing remarks also highlight the changing context of government action and the questions that this raises for women. A number of specific transformations were noted. Changes in the political agenda have largely ignored issues of importance to women, leaving less room within which sympathetic bureaucrats can achieve gains for women. Changes in government organization, often undertaken for reasons unrelated to questions of the status of women, can greatly reduce the likelihood of success of the work of sympathetic bureaucrats. The climate of fiscal restrictions and the impact of the recession have resulted in significant reductions in the level of funding available for women's groups and for the treatment of women's issues within the Canadian polity. Maureen O'Neil and Sharon Sutherland suggest that the current commitment of resources by the state is inadequate to the task at hand, so much so that the basic mandate of the state institutions created for these purposes is jeopardized. This is particularly problematic as, in Clark's view, the ability of the state to act to achieve a feminist agenda is determined by the strength of the feminist infrastructure itself, which is in turn determined by the power and resources of the women's movement. Simultaneously, this reduction in funding levels has diminished the ability of the women's movement to maintain a broadly based coalition. The fragmentation of the women's movement has had a significant negative impact on its ability to maintain political pressure on the state. The strategy of cooperative activity between insiders and outsiders has suffered as a result, and new methods for effecting change in the future must be created. Other matters are perhaps less easily addressed through coalitions such as those described above. Issues of current importance to the women's movement - issues of violence against women, sexual identity, and multiple identities, and an analysis that places race, class, and sexual orientation at the centre - are met by stronger and more signifi-

xviii

Caroline Andrew and Sanda Rodgers

cant resistance from the state. These issues challenge the state at a more fundamental level than did those related to equal pay, child care, and family law. At the same time, issues of racism, class, and heterosexism challenge the claim that the women's movement represents the voice of Canadian women and that a coalition strategy is possible. Rather, these issues question the choice of voice, the appropriateness of strategy and representation, and the biases within the women's movement itself. Joanne St. Lewis argues that despite its rhetoric of inclusion, the Canadian women's movement fails to include the voices of women of colour at the same time as it fails to acknowledge the connection between North American capitalism and the exploitation of Third World Women. Mary Ellen Turpel-Lafond challenges the relevance of the mainstream feminist movement to First Nations women. She also notes that the agenda of the First Nations requires the resolution of claims of cultural equality prior to any consideration of genderequality claims, and suggests that current notions of equality are culturally alien to the First Nations. While these are important concerns, we remain convinced, as did the participants, that the conference was a success. The process of discussion at the conference generated controversy, to be sure, but also vitality and excitement. An evaluation and reflection on the history of the interaction of women with the Canadian state is central to an understanding and evaluation of action in the present and in the future. Assessment and understanding are intertwined, as are understanding and action. The report of the Royal Commission on the Status of Women is not a document gathering dust on a government bookshelf: it reflects an earlier stage of an ongoing debate and dialogue, and of an ongoing struggle about meanings and material reality, about how to change conditions and ideas. This book should be seen in that same light.

Introduction CAROLINE ANDREW ET SANDA RODGERS

Les essais qui suivent, consacres a un examen de 1'impact, des reussites et des echecs du rapport de la Commission royale d'enquete sur la situation de la femme au Canada, ont d'abord etc presentes dans le cadre d'une conference sur «les femmes et 1'Etat canadien» qui s'est deroulee a 1'Universite d'Ottawa en novembre 1990. Vingt ans s'etaient ecoules depuis que la Commission, presidee par 1'honorable Florence Bird, avait termine ses travaux et public son rapport. Apres ces deux decennies, il semblait opportun d'analyser 1'impact du rapport et d'en examiner les realisations et les lacunes. Le debut de la derniere decennie du siecle actuel offrait une excellente occasion de mesurer les progres accomplis par les Canadiennes, de determiner les taches qui restaient a accomplir et d'amorcer une reflexion sur les mecanismes les plus aptes a permettre d'atteindre les objectifs vises. On pourrait tirer des lecons appropriees de cet examen critique des forces et des faiblesses du rapport ainsi que des victoires et des pertes enregistrees par le mouvement des femmes - lecons qui pourraient servir a faire avancer la cause feministe au cours des annees 90. Ces deux decennies representaient par ailleurs une periode assez longue pour permettre d'analyser 1'evolution des modeles d'action sociale du point de vue de leur application aux rapports entre les femmes et 1'Etat. En meme temps, elles constituaient une periode assez courte pour permettre aux femmes qui avaient joue un role critique dans les travaux de recherche, dans la preparation et la mise en oeuvre du rapport, ainsi que dans les rapports continus entre les groupes de femmes et 1'Etat, de participer a cette analyse. Les groupes feminins et 1'Etat canadien entretenaient evidemment des relations suivies bien avant la publication du rapport de la Com-

xx Caroline Andrew et Sanda Rodgers

mission, mais ces relations se sont intensifiees et institutionnalisees au cours des deux decennies qui 1'ont suivie. Or, c'est precisement la le phenomene que nous voulions examiner et analyser. Les rapports entre les interets des groupes de femmes et ceux de 1'Etat s'etaient-ils modifies pendant ces deux decennies? Pourquoi? Quels facteurs avaient entraine 1'intensification des liens entre les Canadiennes et les gouvernements federal et provinciaux? Quelle etait la dynamique de ces rapports? Quel impact avaient-ils eu sur la vie des Canadiennes? L'institutionnalisation des relations entre les groupes feminins et les femmes bureaucrates - les «femocrates» - avait-elle aide le mouvement feministe a atteindre ses objectifs ou lui avait-elle nui? La conference visait a offrir aux Canadiennes une tribune qui leur permettrait de debattre ces questions. Ces memes questions ont d'ailleurs un impact sur 1'analyse de la place des femmes au sein de la societe politique canadienne et du role qu'elles y jouent. II importe au plus haut point d'analyser de facon continue la place des femmes au sein des structures de 1'Etat afm de determiner si leurs roles et leur situation s'ameliorent veritablement. S'est-il produit une amelioration a cet egard depuis la partition du rapport en 1970? De quelles femmes est-il question quand on parle des ameliorations qui ont pu se produire? Un element crucial de cette analyse et de la formulation des strategies politiques qu'elle vise a influencer tient au jugement qu'on porte sur 1'action de 1'Etat et sur sa reaction aux preoccupations des femmes. L'action de 1'Etat a-t-elle aide les femmes ou leur a-t-elle nui? Et encore une fois, de quelles femmes s'agit-il ici? Quelles sont, parmi les questions qui interessent davantage les femmes, celles auxquelles 1'Etat a consacre le plus de ressources? Lesquelles ont attire le plus d'attention? Ou se sont produites les veritables ameliorations? Quels facteurs cles en ont permis la realisation? Ces questions pragmatiques sont reliees a un certain nombre de notions theoriques tres importantes sur lesquelles 1'examen des liens entre le mouvement des femmes et 1'Etat canadien permet de jeter un peu de lumiere. La nature de 1'Etat moderne, son degre d'autonomie, 1'efficacite de son action, la dynamique des rapports qu'il entretient avec la societe civile, toutes ces questions peuvent etre eclairees par une etude de la riche experience que les femmes ont acquise dans leurs relations avec 1'Etat. La contestation feministe de la definition traditionnelle de 1'action etatique ainsi que la diversite des interactions organisees entre 1'Etat et le mouvement des femmes offrent beaucoup de matiere pour 1'examen et 1'etude de ces questions theoriques. La derniere decennie a vu se developper un corpus theorique vigoureux et stimulant proposant un nouvel examen des liens entre le mou-

xxi Introduction vement feministe et 1'Etat. II convient de signaler a cet egard le numero special de Documentation sur la recherche feministe, intitule « Feminist Perspectives on the Canadian State », qui a etc public sous la direction de Sue Findlay et Melanie Randall, de meme que Feminist Organizing for Change, d'Adamson, Brisken et McPhail (1988), et Les Quebecoises et la conquete du pouvoir politique, de Chantal Maille (1990). La creation de la Revue Femmes et Droit/Canadian Journal of Women and the Law, dont le premier numero a paru en 1986, et la publication d'une bibliographic annotee, preparee par Elizabeth A. Sheehy et Susan B. Boyd (intitulee «Canadian Feminist Perspectives on Law»), dans Documentation sur la recherche feministe en 1989, temoignent de la richesse du discours theorique feministe. C'est dans ce contexte que nous avons decide d'organiser une conference pour commemorer le vingtieme anniversaire de la publication du rapport de la Commission royale d'enquete sur la situation de la femme, et mener une reflexion sur 1'experience vecue par les Canadiennes dans leurs relations avec 1'Etat canadien. Nous voulions rassembler des femmes qui avaient ceuvre ou ceuvraient toujours au sein de 1'appareil bureaucratique de 1'Etat, du mouvement des femmes et des milieux universitaires pour discuter, evaluer et interpreter ces relations au cours des deux decennies qui avaient suivi la publication du rapport. II nous semblait que la critique de ces relations ne pourrait que profiler d'un dialogue entre les femmes qui agissaient au nom de 1'Etat et celles qui evoluaient a 1'exterieur du secteur public, que ce soil dans les milieux universitaires ou au sein du mouvement feministe. Pour que 1'analyse de ces relations puisse etre adequate, il fallait qu'elle surgisse de la discussion et de la mise a 1'epreuve des differentes interpretations qu'on pouvait leur donner, en presence de toutes celles qui avaient etc et qui continuaient d'etre impliquees. C'est pourquoi nous souhaitions assurer la representation de femmes refletant chacune de ces differentes perspectives. En particulier, nous voulions inclure des femmes qui avaient agi au sein de la bureaucratic - les « femocrates», dont 1'experience etait relativement absente des ouvrages consacres aux rapports entre les femmes et 1'Etat. Parce qu'elles avaient ceuvre au sein de 1'Etat, il nous paraissait essentiel de les integrer dans ce debat afm qu'elles puissent analyser leur propre experience et leurs actions et reagir aux analyses et aux critiques formulees par les universitaires et les activistes. Grace a 1'expression de ces points de vue differents, nous esperions favoriser un debat et une reflexion qui permettraient d'ajouter une dimension importante aux efforts en vue de synthetiser et d'interpreter vingt ans d'interactions avec 1'Etat. Les textes que nous publions ici representent 1'aboutissement de ces efforts. Us presentent les points de vue differents de femmes qui ont

xxii Caroline Andrew et Sanda Rodgers

agi au sein de 1'Etat, du mouvement des femmes et des milieux universitaires. On ne manquera pas de constater la complexite des concordances entre les participantes et les roles qu'elles ont joues; plusieurs conferencieres, en effet, avaient joue plusieurs roles au cours des deux decennies qui avaient suivi la publication du rapport et certaines avaient contribue a la cause feministe dans chacun de ces trois milieux. Les themes abordes par les conferencieres recouvraient un vaste eventail de sujets, depuis les preoccupations des femmes des Premieres Nations jusqu'aux questions concernant le droit de la famille, 1'equite salariale, la violence faite aux femmes, les immigrantes et les femmes appartenant aux minorites visibles, ainsi que la sante et la reproduction. II etait difficile de choisir parmi le grand nombre de preoccupations que les femmes considerent importantes, mais il a neanmoins fallu en laisser certaines de cote. Des critiques ont d'ailleurs etc formulees a 1'endroit du programme de la conference, qu'on a accuse de ne pas regrouper pas tous les aspects de la condition feminine et de ne pas assez refleter la necessite de se pencher sur des questions comme le racisme, la capacite physique, les classes sociales et 1'experience des lesbiennes dans le cadre d'une analyse des rapports entre le mouvement des femmes et 1'Etat. En choisissant les themes de la conference, nous voulions toutefois nous concentrer sur des questions qui etaient au coeur du rapport de la Commission et sur d'autres qui, depuis la parution de ce dernier, avaient acquis une grande importance du point de vue de la formulation des politiques. II nous fallait egalement choisir des exemples tires de differentes provinces. Nos choix ont done etc effectues, en partie tout au moins, de facon a inclure des innovations interessantes (1'equite salariale au Manitoba, par exemple) et a illustrer differents modeles (tels le conseil consultatif au Quebec et 1'organisme gouvernemental en Ontario). Les participantes a la conference ont notamment debattu la question de savoir si les initiatives de 1'Etat ont eu des effets tangibles ainsi que celle de la nature des structures institutionnelles. Elles ont examine 1'impact et les explications des interventions de 1'Etat visant a repondre aux besoins des Canadiennes et elles ont considere les incidences de cette analyse du point de vue de 1'elaboration de strategies pour 1'avenir. Elles ont en outre tente d'identifier les domaines ou Faction politique et les interventions de 1'Etat ont converge et de comprendre les facteurs qui avaient suscite ces points de rencontre, de determiner qui agissait au nom de 1'Etat et en celui des activistes, quelle etait la nature de la lutte pour la reforme, et quelles strategies avaient porte fruit et pourquoi, et enfin de determiner si ces strategies etaient encore adaptees aux nouvelles priorites politiques. Au cours de la

xxiii Introduction

seance de cloture, Claire Bonenfant s'est penchee sur les enjeux politiques qui auront une importance prioritaire au cours des vingt prochaines annees. Comrne il fallait s'y attendre, les participantes ne partageaient pas toutes les memes points de vue sur les questions abordees. Dans la mesure ou il se degage des textes que renferment le present recueil une vision qu'on pourrait appeler majoritaire, il s'agit d'une vision suivant laquelle le modele qui decrit le mieux 1'interaction entre 1'Etat et les Canadiennes repose sur une alliance tacite entre celles qui ceuvrent au sein de 1'Etat et celles qui travaillent au sein du mouvement des femmes, c'est-a-dire une coalition, implicite et fructueuse, composee d'agentes internes, bureaucrates et politiciennes, et d'activistes externes. Celles qui croient en ce modele, au nombre desquelles se trouvent Catherine Frazee et Freda Paltiel, estiment que 1'experience vecue par les femmes dans leurs relations avec 1'Etat a ete plutot positive. Selon elles, ce resultat decoule des efforts conjugues des femmes qui travaillent au sein de 1'Etat et de celles qui exercent des pressions de 1'exterieur. Elles considerent que le mouvement des femmes, sous la forme d'une vaste coalition de groupes divers, defend leurs interets avec succes. Selon Naomi Alboim et Nancy Sullivan, ni les agentes internes ni les militantes externes n'auraient eu autant de succes si elles avaient agi independamment les unes des autres. C'est plutot la conjonction des pressions politiques exercees par les groupes feminins et de 1'action strategique d'un groupe d'agentes internes qui a mene a cette action de 1'Etat en faveur des femmes. Cette interpretation se confirme d'ailleurs dans les souvenirs que Florence Bird garde de la Commission, et notamment de ses audiences publiques. La Commission considerait son rapport comme un document qui allait permettre aux femmes ceuvrant a 1'exterieur du secteur public d'accroitre les pressions sur 1'Etat et, par la, de transformer la societe. Certaines autres participantes avaient de 1'experience feministe une vue moins optimiste et plus complexe. Pour Jane Jenson et Pat Armstrong, la « signification » et la lutte au sujet de la signification jouent un role critique dans 1'analyse des interactions entre les femmes et 1'Etat. La resolution de questions telles que 1'avortement ou 1'equite salariale depend essentiellement de la definition qu'on leur donne. L'aptitude a determiner la signification a done une importance fondamentale. Mary Jane Mossman et Carol Smart ont une vue nettement plus pessimiste de 1'action de 1'Etat. Elles estiment que cette action, y compris les interventions dans le domaine du droit de la famille, ne contribue pas a 1'amelioration de la situation des femmes dans la societe et en est peut-etre meme incapable. A leurs yeux, la nature meme de 1'Etat,

xxiv Caroline Andrew et Sanda Rodgers ainsi que la nature et la forme de son action, restreignent fondamentalement la possibilite que cette action puisse etre favorable aux femmes. Lorenne Clark affirme, quant a elle, que les obstacles qui entravent 1'influence du mouvement des femmes au sein de la societe canadienne, et notamment la division de Factivite en spheres publique et privee, restreignent egalement Faction de 1'Etat en faveur des femmes. La domination exercee par les hommes est en effet la norme de FEtat, de sorte que celui-ci est bien incapable de mettre en oeuvre une strategic efficace et integree pour remedier aux inegalites dont les femmes sont victimes. C'est en toute connaissance de cause que Nitya Iyer evoque Fincapacite des lois qui proscrivent la discrimination a rendre visible et a prendre au serieux 1'experience des femmes appartenant aux minorites raciales. Selon elle, le recours au droit comme outil de transformation de la societe ne peut que refleter la perspective et les postulats du groupe dominant qui etablit les structures de reforme au depart. Le droit ne peut repondre qu'aux aspirations de ceux qui representent la norme (c'est-a-dire les hommes blancs) et de ceux qui s'en rapprochent (les femmes blanches et les hommes noirs). Martha Flaherty, membre de Pauktuutit, 1'association des femmes inuit, souligne Fincapacite de 1'Etat canadien a se preoccuper des questions qui revetent de 1'importance pour son peuple et elle demande que soit entreprise une reforme de la formation juridique. Elle remarque que le rapport de la Commission, s'il repondait effectivement a certains besoins de certaines Canadiennes, faisait abstraction des besoins et de 1'experience de nombreuses autres femmes. Flaherty et Teressa Anne Nahanee demandent que 1'Etat canadien fasse en sorte que les protections minimales accordees par la Charte canadienne des droits et libertes soient egalement accessibles aux femmes de leurs communautes. Elles soulignent toutes deux le role critique que doivent jouer les groupes de femmes qui s'expriment directement au nom de leurs communautes pour que se realise 1'espoir d'une action favorable de 1'Etat. Pour Wendy Moss, les responsables politiques qui n'appartiennent pas aux communautes visees par 1'action de 1'Etat sont peu aptes a mettre en ceuvre les changements qu'elles considerent necessaires. Passant en revue les decisions judiciaires relatives a Fequite salariale, Marie Murphy souligne egalement les limites auxquelles est assujettie Faction etatique, qu'elle attribue a Fincapacite des juges nommes par FEtat a favoriser Fegalite des sexes. Les opinions eclairees de quelques femmes juges ne servent qu'a mettre en evidence le conservatisme general de la magistrature et la resistance au changement social qui en decoule. Au nombre des autres participantes qui rejettent le modele agentes internes/activistes externes se trouvent celles qui Festiment incapable

xxv Introduction

de decrire avec exactitude le role du mouvement des femmes. II peut arriver, par exemple, que les pressions politiques exercees de 1'exterieur ne concordent pas avec 1'action des femmes qui oeuvrent de 1'interieur, ou encore que les objectifs et les priorites des activistes different de ceux des «femocrates » et des politiciennes. Selon Jane Ursel, les pressions politiques exercees de 1'exterieur peuvent contribuer a affaiblir les strategies elaborees a I'interieur et peuvent leur nuire ou meme les contredire au lieu de venir completer et conforter les priorites politiques. Diane Lamoureux, pour sa part, soutient que Faction de 1'Etat « recupere » les priorites du mouvement feministe. A son avis, 1'orientation qu'il a prise en faveur de la prestation de services et le financement de ces services par 1'Etat soulevent de graves questions quant a la nature et a 1'orientation future du mouvement, dont 1'autonomie a etc compromise par la collaboration avec 1'Etat. Dyane Adam fait echo a plusieurs de ces preoccupations dans son examen des relations entre le mouvement des femmes et 1'Etat dans le domaine de la sante. L'incapacite de 1'Etat a creer de veritables partenariats avec les groupes feminins accroit les dangers de recuperation. Maria De Koninck traite aussi du role que joue 1'Etat dans la limitation de 1'autonomie des femmes, notamment en ce qui concerne leur autonomie personnelle et leur propre sante. En « medicalisant» les questions relatives a la sante reproductive, on a accru le controle de la societe sur les femmes, tout en donnant moins d'importance a leurs propres connaissances. Certaines participantes ont souligne que les progres accomplis et les echecs subis sont le resultat d'une conjoncture historique particuliere et non pas uniquement d'un modele particulier d'interaction entre universitaires, bureaucrates et militantes. Les conferencieres ont fait remarquer que le climat politique et economique actuel differe sensiblement de celui des annees 70 et 80. Monique Begin demontre que le modele qui pouvait s'appliquer a ce moment-la ne convient plus dans les annees 90. La coalition des agentes internes et des activistes qui s'etait averee efficace dans le contexte economique et politique de 1'epoque ne pourrait pas avoir le meme impact aujourd'hui. Marie Lavigne s'interroge elle aussi au sujet des nouvelles orientations prises dans le climat politique actuel et de leur impact sur les relations entre 1'Etat et le mouvement des femmes. Face au demantelement de 1'Etatprovidence, a la certitude de plus en plus repandue que 1'action de 1'Etat est assujettie a des contraintes inevitables, aux tendances a la privatisation et surtout a la decentralisation, il importe plus que jamais que le mouvement des femmes fasse preuve de vigilance afin de proteger les acquis des vingt dernieres annees. Les observations formulees par Claire Bonenfant lors de la seance de cloture mettent elles aussi en

xxvi

Caroline Andrew et Sanda Rodgers

evidence 1'evolution du contexte dans lequel s'inscrit Faction de 1'Etat, ainsi que les difficultes qui en resultent pour les femmes. Les participantes ont fait etat d'un certain nombre de transformations specifiques. Les nouvelles priorites politiques negligent a peu pres completement les questions qui revetent de 1'importance pour les femmes, de sorte que le champ d'action des bureaucrates sympathiques a leur cause s'en trouve tres limite. Les modifications apportees a 1'organisation de 1'Etat, qui se font souvent pour des motifs qui ne tiennent pas compte de la situation des femmes, peuvent diminuer considerablement les chances de succes de ces bureaucrates. Les contraintes budgetaires et 1'effet de la recession ont considerablement reduit les fonds mis a la disposition des groupes feminins ou affectes a 1'etude des questions qui concernent les femmes au sein de la societe politique canadienne. Maureen O'Neil et Sharon Sutherland estiment que les ressources engagees par les gouvernements a 1'heure actuelle sont insuffisantes, compte tenu des taches a accomplir - a tel point, du reste, que le mandat de base des organismes gouvernementaux crees pour venir en aide aux femmes s'en trouve compromis. Selon Lorenne Clark, cela cree une situation tout particulierement problematique, car 1'aptitude de 1'Etat a realiser les priorites feministes est determinee par la vigueur de 1'infrastructure feministe, qui est elle-meme determinee par le pouvoir et les ressources dont dispose le mouvement. Or, cette diminution du financement a eu pour consequence d'amoindrir 1'aptitude de ce dernier a preserver une coalition aux larges assises. La fragmentation du mouvement a eu un impact negatif important sur son aptitude a exercer des pressions politiques sur 1'Etat. La strategic de cooperation entre les agentes internes et les activistes a subi les contrecoups de cette evolution, de sorte qu'il faut aujourd'hui mettre en place de nouveaux moyens de transformer 1'avenir. II est d'autres questions qui se pretent peut-etre moins facilement a 1'action de coalitions de ce genre. Celles qui revetent plus d'importance aux yeux des responsables feministes - la violence faite aux femmes, 1'identite sexuelle et les identites multiples, 1'analyse axee sur 1'appartenance a un groupe ethnique, a une classe sociale ou a une orientation sexuelle particuliers - se heurtent a une resistance plus vigoureuse et plus revelatrice de la part de 1'Etat. Ces questions contestent 1'action de 1'Etat a un niveau beaucoup plus profond que celles qui le preoccupaient par le passe en matiere d'equite salariale, de garde des enfants et de droit de la famille. Par ailleurs, les questions relatives au racisme, aux classes sociales et a 1'heterosexisme mettent en doute 1'aptitude du mouvement feministe a representer toutes les Canadiennes et a elaborer une strategic de coalition. Au contraire, elles remettent en cause les orientations adoptees, 1'opportunite des strate-

xxvii

Introduction

gies et de la representation ainsi que les prejuges au sein meme du mouvement des femmes. Selon Joanne St. Lewis, celui-ci, malgre ses preventions a la representativite, se montre incapable de representer les femmes de couleur et ne reconnait pas les liens qui existe entre le capitalisme nord-americain et 1'exploitation des femmes dans le tiers monde. Mary Ellen Turpel-Lafond, pour sa part, conteste la pertinence du mouvement feministe dominant en ce qui concerne les femmes des Premieres Nations. Elle fait egalement remarquer que les priorites des Premieres Nations exigent que 1'on satisfasse aux revendications en matiere d'egalite culturelle avant d'examiner les revendications touchant 1'egalite des sexes. Elle estime que les notions d'egalite sont largement etrangeres aux cultures des Premieres Nations. On ne saurait bien sur minimiser 1'importance de ces preoccupations, mais nous restons convaincues, a 1'instar des autres femmes qui ont participe a la conference, que celle-ci a remporte un grand succes. Les debats ont certes etc marques par des controverses, mais ils ont egalement etc dynamiques et stimulants. Pour comprendre et analyser 1'action qui doit etre entreprise aujourd'hui et dans 1'avenir, il faut comprendre et analyser 1'histoire des interactions entre les femmes et 1'Etat canadien. Analyse et comprehension sont indissolublement liees, en effet, tout comme le sont comprehension et action. Le rapport de la Commission royale d'enquete sur la situation de la femme n'est pas un document qui s'empoussiere sur les tablettes de 1'Etat. Bien au contraire, il represente 1'un des premiers jalons d'un debat, d'un dialogue et d'une lutte continuels portant sur la signification et sur la realite materielle, sur la fagon de changer les conditions et les idees. Le present ouvrage devrait etre envisage dans la meme optique.

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Women and the Canadian State Les femmes et I'Etat canadien

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CHAPTER ONE

Reminiscences and Reflections on the Twentieth Anniversary of the Commission 's Report^ LORENNE M.G.

CLARK

Dans ce survol de la periode qui s'est ecoulee depuis la parution du rapport de la Commission royale d'enquete sur le statut de la femme au Canada, 1'auteure etablit un parallele entre les principales etapes de sa propre carriere et 1'evolution de la situation des femmes au Canada. Elle dresse un bilan relatif aux transformations les plus marquantes ainsi qu'aux problemes - notamment celui de la violence faite aux femmes - qui restent entiers.

The timing of the publication of the report of the Royal Commission on the Status of Women in Canada could not have been better. The most recent resurgence of the women's movement hit Canada in the late 19605, visibly and vocally surfacing, at least in Vancouver and Toronto, in 1967 - the year the Commission was established. The climate of the times informed and assisted the Commission in its deliberations. On rereading the report twenty years later, I felt considerable nostalgia when I ran across references to the "women's liberation movement" and the "new feminists" in the chapter on "Women and the Family," citing works by feminist authors that were quite literally "hot off the press" - or in Canada, off the mimeograph - at the time the report was being written.2 The public hearings held nationwide by the Commission in 1968, and the publication of its report in 1970, gave focus to the issues that women were identifying as important and fuelled our demands for social change. It was, for its time, a very progressive and forward-looking document, and it remains a permanent benchmark for the measurement of gender equality in Canada. But it would have lain on some parliamentary shelf, gathering dust and scorn, like so many other royal

4

Lorenne M.G. Clark

commission reports, had it not been for the existence of the women's movement, which responded enthusiastically to its publication and immediately set about trying to put things to rights. Which brings me to where both I and the movement were at the time of the report's publication. The immediate response of Canadian women was a desire to get the report's recommendations implemented. I remember one hot, sunny autumn afternoon in Toronto in 1970, sitting over a drink in someone's backyard, though I'm not sure now whether it was mine or Lynn McDonald's, together with Lynn; my then (and now-deceased) mother-in-law, Marion B. Smith, a distinguished scholar and long-time mentor; her daughter, Margot; and possibly some others, musing on the report and on what we should do about it. All of us were convinced that government action would be slow at best and non-existent at worst. We were very concerned that the report not simply fade into oblivion. So we decided to form an organization specifically charged with implementation of its recommendations. We decided to call it the Ontario Committee on the Status of Women. It was, to the best of my knowledge and belief, the first statusof-women committee in Canada, and it officially came into existence in 1971. I had joined the faculty of the Philosophy Department at the University of Toronto in 1966, following completion of my graduate work in philosophy at Somerville College, Oxford, in the spring of the previous year. Though I did not realize it at the time, I was the first woman to be appointed to the department3 and the only female member in a then thirty-six-man department - and "man" here is certainly a gendered term. It is thanks to the advice of Marion Smith that I did not accept their first offer, which was to join them as a lecturer. She told me to hold out for an assistant professorship and to have the department explicitly recognize that my graduate degree was the equivalent of a North American Ph.D. Having herself had a long, and sometimes bitter, struggle for recognition within the Canadian academic world of the 19405 and 19508, and having witnessed the on-going struggles for jobs, tenure, and promotion experienced by female graduate students under her tutelage and that of others, she wanted to spare me as many of those hurdles as possible. I was fortunate: my demands on both scores were speedily granted, and I joined the department as an assistant professor on i July 1966; three years later, I was awarded tenure and membership in the Graduate Department of Philosophy.4 I had my first child in 1967, adopted a second in 1969, and had my last one in the spring of 1970. I had become immediately involved in the women's liberation movement in 1967, and the first issue that I and it - took up, was day care, which was of course now fuelled by my

5 Reminiscences and Reflections

own immediate needs and my awareness of how a woman's world changes when she has children. Sometime in 1968 or early 1969, Sarah Spinks, who I believe was then an undergraduate at the University of Toronto, came to my office to discuss the problem of campus day care. There was no day care at all for children under two, and only limited spaces at the Institute of Child Study for children over two. I was instantly taken with her suggestion that we try to establish an under-two day-care centre at the University of Toronto, and I became a member of a group of parents, both double and single, who unsuccessfully negotiated with the university administration for about a year regarding space for such a centre, which we wanted to operate as a parent cooperative. We had our eye on a house, at 24 Sussex Street, which was owned by the university but not occupied at the time. However, renovations and repairs were required to fit it for this task, and we could not reach agreement with the university with respect to who should be responsible for these costs. Ultimately, out of deep-seated frustration and resentment, and in keeping with the times, the group occupied the administrative offices of the university in the early spring of 1970. I was seven-and-a-half-months pregnant and the only full-time faculty member in the group. We were successful, though the entire event was certainly not without very tense moments. Negotiations between the group and the university administration were hostile and the atmosphere highly charged. Some faculty members, and many students, rallied around the cause, but the majority of the faculty were highly outraged both at the process and at the result, and those of both the old and the "new" left were particularly incensed at my participation in it, so much so that had I not had tenure, I would likely have been fired. Even though I was tenured, there was a strong groundswell in favour of passing a motion of censure against me in the faculty association. Fortunately, this was averted by a few dedicated faculty supporters. But it was the beginning of the end in terms of my relations with many of my colleagues in the department, particularly those most nearly my peers. One outspoken "new left" member of the department expostulated loudly and passionately on the embarrassment created by the occupation of the university's administration offices over a day-care centre, despite the fact that it was one of the few university occupations, so frequent in those days, that actually achieved its objectives. To the best of my knowledge, the house at 24 Sussex Street still survives; and now, most universities have at least some day-care facilities. But it sure took a lot to get that one, and I and others certainly learned the price we would have to pay for acting on our feminist convictions. The Commission's report contained a series of recommendations respecting day care that reflected the concerns we felt in fighting for 24

6

Lorenne M.G. Clark

Sussex Street and the reasons why day care was such an important issue for us. The report reflected that perspective, stating: "Parents require supplementary help, and society may legitimately be called upon to contribute to community services for its younger generation. The equality of women means little without such a programme, which should include a number of different services, among them daycare centres."5 The recommendations themselves are as good today as they were twenty years ago, and we are still waiting to see most of them - and certainly the most important ones - implemented. For those of you who may not have had occasion recently to look at the report, you will undoubtedly find the following recommendation of some contemporary interest: "We recommend that the federal government immediately take steps to enter into agreement with the provinces leading to the adoption of a national Day-Care Act under which federal funds would be made available on a cost-shared basis for the building and running of day-care centres meeting specified minimum standards."6 This cannot help but make us acutely aware, twenty years later, that the battle for adequate, universally affordable, and accessible state-supported day care is still a long way from being won. But no sooner was the first skirmish over 24 Sussex Street resolved than a new one began. In order to operate a day-care centre we had to obtain a license, and the Day Care Licensing Branch of the provincial government of Ontario would not grant us a license because we were refusing to do things like install two bathrooms, one for baby-girl diapers and one for baby-boy diapers. We contested this and had to go to a hearing, and for this we needed a lawyer. And we had great difficulty finding one who would argue the case the way we wanted it argued, though we were in the end successful, thanks to Fred Zemans, then and still a professor at Osgoode Hall Law School, and Larry Taman, then a student at Osgoode. But what some of us learned from that experience was that we had better become lawyers in order to defend ourselves and our causes. Thus, when the report was tabled in September 1970, I was enrolled in first-year law at Osgoode,7 and a new issue and a new battle were in the air. The year 1970 was indeed a banner year. Fuelled by the report, abortion became the next big issue that the movement took on. In order to press for implementation of the report's recommendations concerning changes in abortion law, the Abortion Coalition for the Reform of Abortion Law was founded in i97o.8 I am proud to say that I was also among the founding members of that group and, like so many others, have remained committed to that cause to this day. The march on Parliament Hill, organized by the Abortion Coalition in

7 Reminiscences and Reflections

support of our demands for reform of the criminal law relating to abortion, will forever remain in my memory as a day in which I felt incredibly strong and empowered by the strength of my sisters and the Tightness of our cause. It was a cold, wind-driven, rainy day, but that did not dampen our spirits or our enthusiasm. Barbara Betcherman and I drove up and back together from Toronto, and I remember marching side by side with her, while we intermittently shouted our slogans and debated the merits of total repeal of abortion law. We spent many long hours, then and later, agonizing over the perils of what the provinces might do if the federal government vacated the field, debates which have come back to haunt me in the aftermath of R v. Morgentaler, Smoling and Scott9 and the Nova Scotia government's attempt to prevent the establishment of abortion clinics and coverage of abortion under provincial health care plans. Barbara's untimely death was a great loss to the women's movement. I still miss her terribly; how I wish she could have been with us to celebrate Morgentaler, Smoling and Scott10 and with us now to celebrate the recent decision in R v. Morgentaler,11 revisited yet again, striking down section 6 of the Nova Scotia Medical Services Act. And, yes, with us now, too, to help protest the implementation of Bill C~43, the latest incarnation of the state's desire to restrict our liberty and jeopardize the security of our persons.12 It was certainly with a sense of considerable irony, if not futility, that I discovered on rereading the report's recommendations respecting abortion that, on the issue most basic to our equality - namely, the right to control our own bodies - we appear not to have moved one inch in the last twenty years despite efforts by the judiciary to guarantee our control over our own reproductive functions as part of our fundamental rights to security and liberty of the person, now enshrined in the Charter of Rights and Freedoms.13 The recommendations of the Commission with respect to abortion were as follows: We recommend that the Criminal Code be amended to permit abortion by a qualified medical practitioner on the sole request of any woman who has been pregnant for 12 weeks or less ... Further, we recommend that the Criminal Code be amended to permit abortion by a qualified practitioner at the request of a woman pregnant for more than 12 weeks if the doctor is convinced that the continuation of the pregnancy would endanger the physical or mental health of the woman, or if there is a substantial risk that if the child were born, it would be greatly handicapped, either mentally or physically.14

But considering how we have fared in the first two major fights taken up by the women's movement - which were fed, and accelerated, by

8 Lorenne M.G. Clark

the publication of the report - we have to conclude that state initiatives have made very little difference in relation to the provision of adequate, universally accessible, and affordable day care and have been absolutely retrogressive in relation to abortion. However, an analysis of how these issues were responded to by the movement illustrates a new process - a process of forming voluntary organizations and alternate structures, some to deal with a single problem directly, and others to continue to work for the implementation of practical solutions to a range of problems. I think it is fair to say that the net result of this process is that a significant and major achievement of both the movement and the report in this period has been the creation of our own infrastructure, both within and outside government. This process is also apparent in relation to the next, and last, set of issues I want to consider. Since I cannot evaluate all the areas covered in the report in terms of the success, failure, and limits of the state's response to the problems that the Commission identified, what I want to do now is to focus on issues of violence against women and children. This area was largely ignored by the Commission. In considering issues concerning women and the criminal law, the report, for its time, takes a fairly progressive view of prostitution in that it recommends abolition of the infamous "vagrancy" provision (s. i64(i)(c) 1 5 of the Criminal Code, under which the activities of prostitutes were regulated on the grounds that they were "vagrants" - and it also recognizes that many young women are driven into prostitution by economic necessity. It cites, and endorses, the recommendations of the Ouimet Report, which suggested that Canadian society should be "developing alternate social resources for women, particularly for young women who are without lodging or visible means of support, under health or welfare, rather than correctional auspices."16 The Commission's report devotes two paragraphs to a consideration of sexual offences in relation to women and is highly critical of assumptions to the effect that only young women "of previously chaste character" deserve the protection of the law. It recommends deletion of this phrase from all sections of the Criminal Code in which it appears.17 But beyond that, it does not address itself in any depth to what soon were to become some of the hottest issues of the day.l8 Rape was one of the next major issues to which the movement turned its attention.19 This quickly gave birth to the formation of rape crisis centres across the country and to the National Association of Rape Crisis Centres, which provided strong leadership on this issue during the time that crisis centres were developing.20 This issue was also taken up by at least two other major feminist organizations that were formed subsequent to the publication of the report - the Na-

9

Reminiscences and Reflections

tional Action Committee on the Status of Women, and the National Association of Women and the Law. I do not need to tell you that both of these organizations continue to be important parts of the feminist infrastructure that we have created. As law reform goes, we did get change in sexual assault legislation relatively quickly. The women's movement began to express its opinion about the need for change in this area from about 1972 on. Major revisions to the criminal law respecting rape and other sexual offences came into effect on 4 January 1983, following the passage of Bill C127. While we are awaiting release of research commissioned by the Department of Justice to assess the impact of Bill C-i 27, 21 we do not as yet have very much hard data that would enable us to evaluate the extent to which this legislation has been successful in achieving the objectives we sought. What we do know, however, is that each of the provisions designed to prevent sexual-assault trials from being more concerned with the credibility of the victim than with the guilt or innocence of the accused have been challenged in the courts. Despite the fact that s. 274 of the Criminal Code states that the victim's testimony does not have to be corroborated in order to convict the accused and that the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration, the Nova Scotia Court of Appeal held in R. v. Saulnier22 that notwithstanding this section, the trial judge still has discretion, when reviewing the facts with a jury, to discuss with them the weight they might see fit to attach to the unsupported evidence of the complainant. I do not know whether this matter has gone on appeal to the Supreme Court of Canada, but I certainly hope so. While this appears to be the only case that challenges this provision, there seems to be wide agreement among those involved in the criminal justice system that corroboration is still important to achieving a conviction. The situation is much worse with respect to evidence of a recent complaint. The rules respecting this type of evidence were "abrogated" as part of the package of changes brought in with Bill C-i 27, 23 leaving any questions as to the admissibility of prior consistent statements of the complainant to be decided under the existing general rules of evidence. A good deal of confusion surrounds what is and is not admissible under the general rules of evidence and what procedure should be followed if either the crown or the defence wishes to introduce such evidence.24 Again, there appears to be widespread agreement among the actors in the criminal justice system that prohibiting the crown from introducing such evidence when it is available is detrimental to the crown's case, and that allowing the defence to introduce it leads to what amounts to a "blanket defence of fabrication."25 In short, "abro-

io Lorenne M.G. Clark gation" has backfired and further amendments to the Code are necessary to correct this. Worst of all is the situation respecting evidence of past sexual history and reputation. Under s. 276 of the Code, evidence of sexual activity of the complainant with any person other than the accused is not admissible except in certain particularized situations set out under ss. 276(1) (a),(h>),(c), which I am not going to repeat here. Under s. 227, evidence of sexual reputation is held inadmissible - a rule that is subject to no exceptions. The constitutionality of s. 276 has been successfully challenged in a number of cases and upheld in several others. However, in Re Seaboyerand Gayme and the Queen,26 the Ontario Court of Appeal held that while this section and s. 277 are valid on their face, it would be open to a trial judge to create a constitutional exception to this section in those cases where excluding the evidence would deny the accused a fair trial because the evidence was of real probative force in support of a legitimate defence. This case is now on appeal to the Supreme Court of Canada. Following Seaboyerand Gayme, in R. v. Wald2>7 the Alberta Court of Appeal held that the remedy of a constitutional exception was not an appropriate solution to the problem of the inconsistency, in certain cases, between s. 276 and ss. 7 and 11 (d) of the Charter of Rights and that s. 276 must be declared of no force and effect. However, the Court also held that s. 277 was not unconstitutional. This case is now also on its way to the Supreme Court of Canada. We certainly know that the reporting rate of sexual assault has greatly increased since the introduction of the reforms, but this is due almost entirely to increased reporting of child sexual assault. What evidence there is on how these cases are being dealt with in the courts suggests, however, that there has been little change in charging rates or in rates of conviction. We must wait on the empirical facts before deciding where to go from here, but I think it is safe to say that this battle has not yet been won either. We certainly know that the successful prosecution of cases of sexual assault of children is still plagued by a number of problems. It would appear that the conviction rates are even lower for cases involving sexual assault of children than they are for sexual assaults on adult females. This is all the more alarming in the face of the knowledge we now have as to the frequency of sexual assault of children and the immense consequences that this has for their development.28 And I think I do not need to lay before this audience a litany of the evidence in support of the proposition that wife battery is a major problem to which our entire legal and social system has failed utterly to respond. Again, women themselves have formed organizations to

11 Reminiscences and Reflections

provide relief and assistance to women and children in battering situations, but the legal system, in particular, simply has not mustered any adequate integrated response to this problem.29 The reason for this lies, I believe, in the fact that this issue, like other issues of violence against women and children, and day care and abortion, lies at the very heart of the problem. The entire socio-legal system is organized around preserving a private sphere, intact and insulated from the public sphere and its values, in which men have exclusive power to dominate and subordinate women and to use violence or the threat of violence to achieve this objective whenever they, in their sole, exclusive, and unfettered discretion, believe it to be necessary. However, if we cannot leave the house, we cannot enter the public world. The only way out is to break forever the hegemony of male authority over women in relation to the key private sphere relations of sex and reproduction. But this is just what is at stake in organizing the kind of integrated response that is required in order to deal with the problem of women battered in the home. It must directly confront the problem of unjustified male authority over women and disarm men's ultimate weapon of control over women. It is therefore scarcely surprising that the system has failed so miserably to respond to this problem. Doing so necessarily destroys one of the major objectives that system has had for at least 2,500 years; the home is the last bastion. But unless and until we storm and take that last bastion, we will not make significant gains in the public sphere either. Until all of us can get out, none of us are safe anywhere. We must learn from our achievements and from our failures. What that tells us now is that we should use the infrastructure we have built to formulate and implement the solutions we want to see implemented to cure the problem and not merely alleviate the symptoms. State initiatives have so far stopped at the front door. That is why they have accomplished so little. But we now have an infrastructure, more of us are escaping into the public sphere all the time, and a few of us are even gaining positions of authority and decision-making within it. But what we must do with that still very limited power, and with the power that our own institutions now give us, is to focus that power on a social and legal restructuring of private-sphere relations designed to eliminate male power over women and children and the abuses that it generates. State initiatives will only make a difference when one of their central targets is the elimination of domestic terrorism.

CHAPTER TWO

The Canadian Government and the Commission's Report1 MONIQUE BEGIN

L'auteure examine les rapports entre la societe canadienne et 1'Etat tels qu'illustres par la creation de la Commission royale et la mise en oeuvre de ses recommandations. Les annees 1965 a 1985 ont ete marquees par des interactions etroites entre, d'une part, les groupes, associations et personnes appartenant au mouvement des femmes et, d'autre part, les elues, fonctionnaires et organismes du gouvernement. Deux questions restent toutefois largement non resolues, soit celle de la violence faite aux femmes et celle de la participation des femmes a la vie politique.

The 1988 issue of the Canadian periodical Resources for Feminist Research / Documentation sur la recherche feministe (RFR/DRF}, devoted to relations between women and the state, begins thus: Canadian feminists have a lengthy history of engagement with the state. As activists we have demanded from the government a range of measures intended to improve women's status; we have scrutinized and challenged a variety of state actions for their adverse impact on women; and, ironically, we continue to depend on state funding for a large portion of the work of the women's movement. Although we are critical of the state for its systematic failure to represent women's interests, we nevertheless expect to see the state play an active role in achieving the role of feminism.2 By way of introduction, and without entering the theoretical debate raised by our relations with the state, I would like to place this quote in the context of the Canadian welfare state and Canadian political culture, in order to - as the special issue of RFR/DRF wanted to do "make sense of state structures and practices."3

13 Government and the Commission's Report

The first dimension - that of the welfare state, a tradition that is now more than sixty years old - underlies the general political environment of the western world, not to say of the whole world. From the beginning, the orientation given to some of the projects and initiatives proposed by the women's movement raised the issue of the relationship to the state and was seen as a fundamentally subversive criticism of the welfare state. Today, as Diane Lamoureux points out in the same issue of RFR/DRF,^ these projects and initiatives have become an important element of the strengthening of the modern welfare state. Caroline Andrew has shown that, decades before the Royal Commission on the Status of Women in Canada (RCSW), women's associations had played a similar role by helping to transform the liberal state into the Canadian welfare state of today.5 It is also important to note the strong interventionist component of Canadian political culture. Contrary to the United States, where the state is the last recourse of the individual, there has been a long-standing tradition in Canada, in which all constituencies, business included, routinely seek government assistance. Even at a time when privatization and other neo-conservative ideologies are front and centre in the political discourse, government activity continues to reflect a substantial presence of the state in virtually all sectors of human endeavour.. It was against this background of the interaction between citizens and the Canadian state that the RCSW was established on 16 February 1967 - clear evidence that, as Cerise Morris has noted, "the federal government clearly, and at one point in time, accepted and thus legitimized the social problem definition of the status of women."6 Before the Commission, government tended to view women only as female citizens re-entering the labour market more or less massively and needing special training (or special protection). This had led to the establishment in 1959 of the Women's Bureau in the federal Department of Labour. By the late 19605, however, women were being collectively identified as a new societal challenge: after 1967, issues of the status of women formed a new official "social problem." The following points have been discussed in the literature: 7 1 Neither the federal nor the provincial governments could ignore the Commission's report, which was implemented as far as was possible because of the existence of, and the close relationship of the Commission with, the political constituency made up of women across the country. 2 This political constituency of women had begun in Quebec with the creation, in 1965-66, of the Federation des femmes du Quebec (FFQ) and its historic alliance, shortly thereafter, with English Canada's Committee for the Equality of Women (CEW), a loose coalition

14 Monique Begin

of thirty-two women's associations from across the country. Their joint efforts led to the creation of the RCSW by Prime Minister Pearson in February 1967. 3 The Commission's public hearings and research projects, as well as the briefs and recommendations submitted by women's organizations, contributed significantly, I believe, to the revival of feminism in Canada, giving rise to a broad-based constituency that politicians have had to reckon with ever since. 4 Although lacking a clear theoretical framework, the RCSW'S report was inspired mainly by the idea of equal rights and equal opportunities and, to some extent, by a view of society based on the cultural feminism of Simone de Beauvoir. These foundations account for both the report's strengths and its weaknesses. 5 This liberal feminist mindset explains why many of the report's recommendations were implemented - those involving reforms to laws, practices, or procedures, in particular. It also explains why there was lack of action on those recommendations which required radical change - that is, on those issues which Canadian society would consider too revolutionary, such as pay equity, day care, access to abortion, and economic rewards to homemakers. 6 The RCSW'S focus on equal rights and opportunities also helps to explain the report's failure to examine such major contemporary issues as violence against women (sexual or physical) and its relative weakness on such topics as the participation of women in political life. My presentation is divided into three parts. First, I shall attempt to identify the various agents of change that interacted following the RCSW, especially during the 19705. Then I shall reflect on how policies dealing with the status of women were made and implemented, after the tabling of the report. Finally, I shall look at two major unresolved issues - namely, violence against women, and women and political participation - in an attempt to understand why they have remained unresolved. ORGANIZING FOR CHANGE

One of the most dynamic developments in sociology during the igSos was a new emphasis on the concept of "social actors."8 This concept stands in opposition to more deterministic social factors such as structural elements, value systems, and political theories. The concept of social actors embodies a view of society in which social movements play a significant role and real change is possible. The women's movement in

15 Government and the Commission's Report

Canada was such a social movement, especially during the twenty years from 1965 to 1985. Several studies have documented how women collectively acted for change, one of the most thorough being that by Adamson, Briskin, and McPhail.9 In this work, the authors examine women's associations and their activities during those two decades and draw a distinction between institutionalized feminism and grassroots feminism. Not only does this distinction oversimplify the situation - it does not, for example, take into account the fact that radical concepts were adopted by traditional women's associations and integrated into conventional approaches, or the fact that the so-called grassroots feminist movement did make recourse to government funding and procedures - but it also requires something of a value judgment on women's associations. Nonetheless, the distinction does make a valid point in trying to discern two different trends in the women's movement. The book also argues that history has neglected the women's movement in favour of more conventional associations. In fact, Canadian women as social actors should be seen as falling into a number of groups, all active simultaneously: established women's associations; new groups or networks, often radical; and individual women who have become social actors in their own right (the name of Madam Justice Bertha Wilson comes to mind). My own view is that in Canada, unlike in the United States, most women's associations have been feminist to some degree since the end of the 19605. Their loose coalition, which led to the creation of the RCSW, was reactivated in 1972 with the creation of the National Action Committee (NAG) to ensure that the Commission's report would be implemented. This new "parliament of women," as Christine Appelle calls it, served for almost fifteen years as the main federal lobby group in matters of interest to women.10 In Canada, radical feminism acted as a catalyst in the process of change. Take, for example, the Montreal street demonstration in November 1969, in which 200 Francophone women formed a chain (in defiance of a new city bylaw prohibiting mass demonstrations) to demand the right to abortion. This action stunned the police, who could not face the prospect of attacking women, and electrified public consciousness. Recall, also, the adoption of the American Redstocking Manifesto's slogan, "the personal is political"; the Abortion Caravan that crossed the country in 1970; and the opening of the first women's centres in Vancouver. The new, explosive concepts associated with women's liberation, the solidarity expressed within and towards feminism, the new strategies and tactics - all of these had a profound impact on us as individuals and on the society around us. The women's

16 Monique Begin

movement made us move at a pace and in a way that the state could not always follow or understand. Individual women also emerged as social actors. Besides such national figures as Therese Casgrain, Kay McPherson, and the leaders of women's associations and of the women's movement, women began to be elected in increasing numbers during the 19705 to both the federal and provincial legislatures. At the municipal level and in school boards, where change was uncommon, women joined in changing public awareness. Presidents of the Canadian Advisory Council on the Status of Women, ministers responsible for the status of women, opposition critics - all of these were new, legitimate women's voices, speaking from a position of power and putting the interests of women first. It seems pointless to try to determine which of these groups or individuals had the greatest influence. Each was essential, as was the interaction among them. Above all, the relative commonality between their different agendas was crucial to the movement's success. No one knows what the turning point was for each individual - which particular event or dramatic image, what compelling argument or shared emotion or significant action - led to the moment of change. It may have been something merely symbolic: we know the immense power of symbols in personal and collective development. Nor do we know, for any one woman, whether her personal revelation came from "traditional" or "radical" feminism, but that distinction is artificial in any event. What matters only is that women did change, individually and collectively, and that we will never look back. Besides being a social movement, the Canadian movement for women's equality and liberation was also a powerful political force with a broadly based constituency. I use the past tense deliberately: I am not sure this is still the case, especially since the formal recognition of REAL Women by the federal Conservative government after 1984 and the apparent dismissal of NAC as the principal lobby group for women's issues. Although the movement was powerful and dynamic, it might not have succeeded had the ideals of human rights and equality of opportunity not been so important over the past three decades. In Canada, our political culture includes a strong commitment to the notions of equality, justice, and due process. During the 19605, before the women's liberation movement and in parallel with the rise of pacifist values, as exemplified by the Voice of Women, many national women's associations strove to obtain Canada's signature to, and enforcement of, international agreements and covenants for women's rights. One cannot underestimate the power of the motto of the federal government's Women's Bureau (founded in 1954 by Marion Royce),

17 Government and the Commission's Report

"equal pay for equal work." That concept has sunk deep into the Canadian collective conscience.11 Its meaning has changed somewhat over the years - first, to "equal pay for work of equal value," and now to "employment equity," as defined by Rosie Abella in her 1984 report to the federal government.12 Several political commentators attributed Bob Rae's victory at the polls in Ontario in 1990 at least in part to his commitment to employment equity. These are some of the factors that helped Canadian women move towards equality over the last twenty years. Economic and demographic factors have also played an important role. Quite apart from the welldocumented and massive increase in the number of women that have joined the paid workforce and from the change in family size, the state of the economy has had a profound effect on the status of women in Canada. The "affluent society" is no longer, having ended with the galloping inflation of the 19705 and the subsequent stagflation and recession. But its spirit of generosity and openness went on into the 19705, and so did increased government expenditures for women's equality. The change came in the mid-1970s. I believe the International Women's Year (1975) was the last year in which women perceived a pro-active cooperation between women's groups and government in Canada. Legislative and other reforms have, of course, gone ahead witness the Human Rights Act (1977); the Child Tax Credit (1978); an improved Guaranteed Income Supplement for women pensioners living alone (1979 and 1984); the creation of five university Chairs in Women's Studies (1984); revisions to the Indian Act (1985) that return Indian status to women who have married nonstatus men; amendments to the Criminal Code dealing with sexual offenses (1983 and 1988); and the Employment Equity Act (1986). But we cannot escape the fact that, little by little, victories improving the status of women were no longer obtained in complicity with the state, but against it. One landmark date in this transformation is November 1981, when the provinces finally agreed not to override section 28 of the Charter of Rights and Freedoms and when women across the country pressured the politicians of Canada, with the support of Judy Erola, the first woman Minister of the Status of Women. Even with the minister's leadership, these pressures were resisted by all governments, including the federal state. These developments show that action has regularly been undertaken by the state over the years, without real interruption, since the RCSW report. But the feeling now persists that the state is in a quasiconfrontation with the constituency of women. The recognition and funding by the federal government of the anti-feminist group REAL Women, major cuts in funding to women's organizations, the shelving

18 Monique Begin

of a national day-care initiative, the government's failure to institute gun control legislation following the Ecole Polytechnique massacre all of these demonstrate a breakdown in cooperation between the state and the women's movement. IMPLEMENTATION

As the previous section has argued, when the report of the RCSW was tabled, women were developing a position of strength and were abetted by other forces at work in society. Since that time, genuine, useful changes in legislation, procedures, and policies have taken place. Nonetheless, while many recommendations of the Commission's report were fully implemented, others were not at all. It is well worth our while to examine the reasons for this state of affairs. As Patricia Valentine, of the University of Alberta, points out in a paper on the RCSW, 13 implementation remains the least understood dimension of policy analysis. Policy may be formulated; it may even be embodied in legislation, but its implementation is by no means a certainty. To what extent, then, have policies favouring the advancement of women in Canada been carried out, and how? According to Valentine, Two reviews of the recommendations of the Report of the Royal Commission on the Status of Women in Canada (1970) were carried out by the Canadian Advisory Council on the Status of Women (CACSW); the first review was published in 1974, four years after the release of the Report ... Of the 122 recommendations, 42 (34.4%) had been implemented, 37 (30.3%) had been partially implemented and 43 (35.3%) had not been implemented ... The second review, published in 1979, indicated that 43 (35.2%) were considered implemented, 53 (43.4%) were deemed partially implemented and 24 (19.7%) were judged as not implemented with 2 (1.7%) considered to be irrelevant ... The degree of implementation of the Commission's recommendations at the four-year interval and then some five years later supports Smith's ... contention that '[policy implementation] in Western nations tend[s] to be incremental in nature.' A general perusal of the implemented policies suggests these particular policies were the most politically and economically feasible ones to execute ... They also were policies more directly under the control of federal legislation, generally had more clarity and specificity ... had 'low visibility, fit with prevailing values and involve [d] narrow concerns' (Ellen Boneparth).14

Of course, CASCW'S purely statistical approach is hardly informative and rather misleading, but it nevertheless indicates that action took

ig Government and the Commission's Report

place. The RCSW did lead to significant change. Why? What factors account for the relative success of the Commission's recommendations? After the report was in Parliament, the commissioners and I accepted, whenever we could, invitations to speak to women's organizations in order to discuss the report. In Quebec, a one-dollar Guide de discussion had been prepared by the FFQ as early as 1971, with assistance from the federal government; a similar English document was later released by the National Council of Women, which had commissioned it from the Toronto chapter of the Canadian Association of Adult Education. Meanwhile, there was movement on the bureaucratic front. Freda L. Paltiel (a civil servant in a middle-management position) was appointed by the Privy Council Office to coordinate an interdepartmental committee with five working parties, which held more than 100 meetings. This development was followed by the establishment of an Equal Employment Opportunities Office within the Public Service Commission. On 7 May 1971, Prime Minister Trudeau appointed Robert Andras, Minister of Consumer and Corporate Affairs, as the first Minister Responsible for the Status of Women. The interdepartmental committee did not want a distinct Department for Women's Affairs, for fear of ghettoization. We had decided that we wanted male ministers, holding established portfolios, to be given "the Status of Women" as a responsibility in addition to their regular duties, on a rotational basis. We wanted these men and their bureaucracies to educate themselves. I recall arguing, in one of the committees, that it was as good a way as any to raise the consciousness of the state! Granted that there was no woman in the Liberal government at the time (1971); but some of us also felt strongly that it was men's duty to do some learning and some readjustment. In another context, I alluded to the story of my own appointment as a member of cabinet in September 1976 and to the fact that Prime Minister Trudeau first wanted me to be a junior Minister of the Status of Women without portfolio, as well as to my reasons for refusing it. It was not until September 1981, five years later (and ten years after the portfolio had been created), that the first female minister, Judith Erola, was appointed. The portfolio now seems to "belong" automatically to a woman. What did the portfolio involve? The Minister Responsible for the Status of Women works with a very small team established as an "agency" of the federal government rather than a full department. Known as Status of Women Canada, the agency reached its present form in 1976, when Marc Lalonde was the minister responsible. It is headed by a coordinator with the rank of deputy minister. In its origi-

2O

Monique Begin

nal form, this office was the focal point for coordination inside the federal government, and its first incumbent was Freda Paltiel, appointed a few weeks after the tabling of the report of the RCSW. She was succeeded by Maureen O'Neil. For all practical purposes, this agency acts as the minister's department and reports directly to him or her. The difference is that it includes fewer than 100 employees - some departments have more than 25,000 - and has no power of its own. Other federal government components interested in women's issues are better known; they include the Women's Program of the Secretary of State, the Women's Bureau of the Department of Labour, and Health and Welfare Canada's Office of the Senior Advisor on the Status of Women. Two and a half long years after the tabling of the report, during Trudeau's minority government, with John Munro as the minister responsible (already the third man to hold the portfolio), the thirtymember Canadian Advisory Council on the Status of Women was finally created on 31 May 1973. A lot has been made in women's groups of the fact that the Council, contrary to our recommendation, reports to Parliament through the Minister Responsible for the Status of Women, not directly to the House of Commons. But except for Common's committees and officers of the House, all government or quasigovernmental bodies must report to Parliament through a member of cabinet. Of course, disagreements arise between these various bodies, each of which represents, in one way or another, the interests of women. The last years of the Trudeau government saw signs of such tension. Dissension can be useful and productive, but it can also be used by those in power to postpone decisions because "the constituency is divided." Another way of avoiding action is to claim that such-and-such an individual or group "fails to represent" the will of the majority. While I find these excuses revolting and hypocritical, there may at times be some validity to both. During the igSos, feminists became widely seen as intolerant and dogmatic. Many women in positions of responsibility, who could have helped and who wanted to help, felt that they could never be feminist enough to meet the demands of the official constituency of feminists. A breach of trust and solidarity grew, accompanied by bitterness on both sides. At the same time, the issues presented to the government for action by the women's constituency dealt increasingly with topics that were seen as marginal. The movement no longer seemed to represent the majority of women in Canada. Moreover, other political divisions crept in; it was only too easy for politicians to point to the fact that the Francophone element, reflecting Quebec's politics, was more

21 Government and the Commission's Report

and more absent from national women's groups and that Anglophone feminists were usually from Toronto, not from eastern or western Canada. The movement seemed to have little to say for, or to, significant subgroups in Canadian society - immigrant women, disabled women, domestics, farm women, poor women, or housewives. Despite all these divisions and difficulties, Canadian women in the last twenty years have achieved an extraordinary degree of success in carving out for themselves an open space in society and attaining a new sense of dignity, freedom, and autonomy. Moreover, they realized all of these changes with a relative minimum of confrontation with the state and society. We have no solid indicators capable of measuring social evolution, but if we did, I believe Canada would rank immediately after the Scandinavian countries in terms of significant adjustments in gender relations. UNFINISHED BUSINESS

Before concluding, we should examine two specific issues in which progress has been slow and hard to assess: the question of violence against women, and the issue of women's participation in political power. The report of the RCSW does not mention violence against women. Micheline Beaudry is right to express shock at this state of affairs in her book on battered women.15 In that sense, the report was a perfect product of the times. So were the briefs presented to us during the public hearings of 1968. It was not that women were not being beaten - merely that the problem had not emerged into the open as an issue related explicitly to women and as a legitimate social problem. The first personal recollection that I have of violence against women as a feminist issue and a legitimate social problem only goes back to around 1979, when I had been Minister of National Health and Welfare for some years. I visited a Vancouver shelter for battered women and children in what had obviously been a huge private home, now housing a few women and their children who shared living responsibilities. I had never heard of a women's shelter - understandably since, as Beaudry points out, the movement had operated in near secrecy since its beginnings in 1975, partly by choice, partly by necessity. I visited another shelter with Ann Cole, early in 1980, in downtown Toronto. I still remember the impact of realizing that I was seeing a home, not an institution, an office, or a social service; the political implications of "space defining practice"16 were immediate. At the time, my department had never briefed me on the issue. I did not even know if such transition houses were covered under the Canada

22

Monique Begin

Assistance Plan, which provides for half the costs of social services offered in the provinces. I was sitting in the House of Commons as a front-bencher when the first parliamentary report on this subject - entitled Wife Battering — was tabled on 12 May 1982. The response to its presentation was appalling: a number of male M.P.S laughed nervously and made silly comments and vulgar jokes. Despite this reaction, it was obvious that a certain evolution had taken place, as shown by the title of the document, which bluntly referred to women as the prime victims. Moreover, the report had been produced by a mostly male parliamentary committee. (Only three of its twenty members were female: Therese Killens, Flora MacDonald, and Pat Carney.) According to my recollection, several M.P.S, shamed by the indignation of the media and the protests of their constituents, attended special screenings and discussion groups of National Film Board (NFB) films such as Not A Love Story, trying to understand an issue that had hitherto been seen as purely private and individual, and as having nothing to do with society as a whole, let alone with Parliament. But the subject of violence against women, physical and sexual, remained taboo for several more years. Only when children or the elderly were the victims was family violence considered a legitimate concern of public policy. Health and Welfare's family violence "desk," called the National Clearinghouse on Family Violence, was established only in 1983. It was merely a focal point in the department and a clearinghouse for information, with no power except for the influence of its excellent newsletter Vis-a-vis. Even so, the program always encountered resistance from the bureaucracy until it was eliminated by my successor. You will note that it referred to "family" violence, not to "battered women" - a label still politically unacceptable at the time. Although the first shelters had been opened in Canada as early as 1975, it took at least a full ten years for policy-makers and legislators to start considering seriously the issues involved and to equip themselves with the necessary tools for analysis. Shelters, transition houses, and programs for batterers are now accepted as "new" social programs. These initiatives, often starved by lack of public funding, are suffering from the institutionalization imposed on them by governments - namely, from professionalization and uniformity for their own sake - while still not receiving the funding needed for their survival and development.18 As for women's participation in politics, the Commission and women's groups did examine that subject; in fact, the report devoted an entire chapter to this topic. I felt, at the time, that it was the weakest part of our text, but I had no idea how we could strengthen our recommendations. Today, it is obvious that what we lacked was not an aware-

23 Government and the Commission's Report

ness of the problem (as we did in the case of violence against women) but a theoretical framework for analysis. Several concepts and theories from feminist scholarship help to explain why so few women participate in society's spheres of power, both economic and political, and why women's common concerns are not on the agenda. These tools of analysis address different facets of the problem. The distinction that we have seen between the "private sphere" and the "public domain," so well expressed in Virginia Woolf's Three Guineas,1^ is at the root of the issue. Women do not find politics appealing for a number of reasons, which may be summed up as follows. First, the issues and areas that women are most concerned about are, in the world of politics, low on the agenda. Second, political life tends to be hierarchical and powercentred - two attributes that run counter to the female experience; it also makes intense demands on one's personal life. And third, the world of power still sees women and women's values as "deviant," an attitude that is likely to make the individual woman working in this world at least uncomfortable. Women who succeed in this male-created sphere must pay a higher price than many are willing to face. First, let us examine the ranking of "woman-centred" areas in government. Take, as an example, cabinet rank. There is an unexpressed but clear hierarchy of prestige and power among ministers in cabinet. Not only is this evident at both the federal and provincial levels in Canada, but it probably holds true everywhere in the western world. After the Prime Minister comes the Minister of Finance, of course. Other "real" departments, those that count, are ministries dealing with economics (Industry, Trade, and Commerce), technology (Transport, Agriculture), and war and peace (Defence, External Affairs). When I was Minister of Health and Welfare, despite the fact that the department spent 25 percent of the federal budget, my colleagues and senior bureaucrats always called it "a nonproductive department." They meant no offence: it was merely considered a fact of life. Other departments dealing with "people" issues (Veterans Affairs, Multiculturalism, Citizenship, Indian Affairs, Housing, and, at the provincial level, Education) are all at the bottom of the hierarchy. They are also the ministries that extend furthest into the public sphere the issues that used to belong to the domestic domain of women. At a sociological level, the socialization to gender-differentiated roles helps to explain the reactions of our male colleagues, as well as our own reactions, to the presence of women in situations of power. Authority, domination, confrontation, aggression, display, legalism, Cartesian rationalism, formalism - all are organizational aspects of the universe of power that are quite foreign to the way women have been

24 Monique Begin

traditionally brought up. When women refer to the "feminist process," elements of which are valued and shared by some men as well, they express beliefs about ways of doing things that seem to politicians to come from another planet, and which they easily dismiss in the name of "efficiency." From a psychological perspective, women participating in power should know that they are still "deviant," with all the consequences that this entails for them personally. There is no other way to understand and to be able to minimize the negative reactions of the world of politics and the media. It can be very dangerous, even destructive, not to understand this fact before one enters the spheres where power is exercised or before occupying a position of power. That is why I firmly believe that any woman going into politics or senior administration should take a crash course in feminism. One needs also to include in the analysis such factors as patriarchy, class, and ethnicity. These concepts have helped us to understand the origins of systemic discrimination. These are the factors that discourage women from entering politics. But if enough women overcome these barriers and enter the world of power, the results could be startling. In this context, the recently developed concept of "critical mass" is particularly interesting - and empowering. This concept was first applied to women politicians by Scandinavian feminist political scientists. They make the point that the size of the minority does make a difference. In Scandinavian countries, women make up about 30 percent of the national parliaments. Feminist scholars have examined areas in which a critical mass of women in politics has affected political culture and discourse or the reaction to women as politicians. One author has even suggested that the concept of critical mass be replaced by that of "critical acts."20 This rapid review illustrates a few points of reference on which a feminist analysis of power could be based. Except for Simone de Beauvoir's analysis of patriarchy, none of these points had been articulated when the RCSW wrote its report some twenty years ago. CONCLUSION

Where do we go from here? There are no simple answers. The Canadian women's movement towards equality and liberation has been particularly dynamic and successful in changing Canadian society, forever and for the better. For the last few years - five? ten? - we have been wondering if we are still making progress, and we have been doubting ourselves and the society around us. If we study our past key achievements, we will see new directions to explore for future action.

25 Government and the Commission's Report

Thinking about the state and its relationship to social change is necessary. For instance, had the RCSW offered a radical analysis of problems such as violence against women, it is by no means certain that the state could subsequently have altered the order of things. While it is true that, in the wake of the RCSW'S report, governments have attempted various institutional reforms, this has not changed relations of men to women on the whole. Although we do see a few women "at the top," this has had no impact on the situations of other women. Only when women at the top have articulated a clear understanding of the systemic discrimination against women and only when they can play from strength, can change and reform be initiated that will benefit women collectively. Otherwise, the passive (and at times active) resistance of male bureaucrats and politicians will prevail. The evolution of feminist scholarship offers exceptional concepts and theories to empower women vis-a-vis the state. Given that the traditional dichotomy between right and left, and other ideologies and traditional classifications, are of little use in analyzing feminist issues, let alone in resolving them, we must develop new perspectives for analyzing those issues and find new concepts to mobilize us, as the notion of patriarchy did in the 19708. In an address to the World Congress of the International Political Science Association meeting in Washington in 1988, Sandra Harding established all that feminism owes to the concept of patriarchy. She described it as "that force in history that frequently acted in more or less self-consciously intentional ways to create and maintain the domination, exploitation, and oppression of women." She pointed out that, like the class system or capitalism in Marxist analysis, the term "patriarchy" describes a system — a structure - of domination, exploitation, and oppression; but it also makes clear just who the active system agents are - the "men of the ruling groups." As Harding points out, the concept of patriarchy did more to unite and radicalize women than any other idea. Our individual fears were turned into a collective anger that demanded solutions. But the concept that was so energizing in the early 19705 has become limiting in today's political situation. New partnerships - Harding refers to Jessie Jackson's "rainbow coalition," for example - are needed to find a new consensus on a new range of challenges and concerns. Any such coalition must breach the boundaries of the standard "natural" constituencies, including that of the women's movement of Canada. Harding argues: "What should be the epistemology for rainbow politics? I suggest that one that starts off from our multiple and contradictory identities will prove the most fruitful." 21 Harding's approach may help to deal with a problem I mentioned earlier - namely, the perception that feminists have become intolerant,

26 Monique Begin

that one can never be feminist enough or sufficiently politically correct. In order to celebrate our differences, agreeing on the essentials is the only way to include more women in the movement. We must make room in our coalition for men who share our beliefs, for women who immigrate into this country, for marginal groups. All must be made to feel that they belong, even if we have to stretch to accommodate and understand their different viewpoints. Let us look at a single, large, and important example. Organized nursing has some 230,000 to 250,000 members in Canada, more than 95 percent of them women. The profession has started seriously to question its place and role in the health-care system and has already produced excellent feminist texts. However, during a feminist course on women and health at University of Ottawa in the spring semester of 1990, the class of post-registered nursing students remarked with some bitterness that the women's movement had never paid any attention to their profession. Perhaps there were good reasons for this failure back in the 19705; there are none now. It's time that we reviewed the situation and looked for our common ground. Can we form a new strategic alliance, as we did and as women before us did in the ig6os and early 19705? Can we make the women's movement a grassroots one again? And can we reclaim territories and issues? Some issues from the RCSW period are still outstanding and are candidates for fundamental reform within Canadian society. Others involve children, the elderly, the safety net of social security, the fight against poverty, illiteracy, the protection of our environment, the North/South issues of international justice and development. These issues are ours, and we must reclaim them. Are we not mature enough as a movement and sure enough of our identity to begin to speak on many more issues of public policy? To quote bell hooks, the feminist movement is "from margin to centre."22 It's time for us to move again.

CHAPTER THREE

State Initiatives: Impetus and Effects F R E D A L. P A L T I E L , C . M .

L'auteure se penche sur la formulation des politiques publiques qui touchent aux femmes en general, puis elle examine quatre domaines qui presentent un interet particulier, soil la garde des enfants, la violence faite aux femmes, la sante et la securite du revenu. Ces exemples servent a illustrer 1'importance des liens entre les dimensions internationale et nationale de cette activite et entre 1'activite de 1'Etat et celle des groupes de femmes. INTRODUCTION1

The Royal Commission on the Status of Women was a watershed, changing the course and discourse of Canadian social history and social policy. The cogency of the report and its compelling arguments alone would not have made it so. Contributing factors were the vibrancy and vigilance of the Canadian women's movement, a burgeoning economy, the Zeitgeist of "participatory democracy" and "the just society," and a demographic profile that showed half the population to be under the age of thirty. Within the government itself, the key factors were the dedicated missionary efforts of some 100 public servants, mostly women, working with private-sector representatives to translate the Commission's 167 recommendations into public policy; the mechanisms and processes established to promote and monitor their implementation; and unique federal support for the establishment, operation, and access of new women's umbrella and issue-oriented organizations.2 Being at the nerve centre of that process twenty years ago shaped the rest of my life, blending my personal odyssey with the quest for gender equality and social justice in our evolving pluralistic democracy.

28

Freda L. Paltiel

Contrary to the popular view that I am a congenital public servant, I was recruited into, and hesitantly joined, the public service in my midforties, having been discovered while completing a chapter on voluntary health organizations for the Royal Commission on Health Services, and following the publication of a book on poverty. Most of my working life, paid and unpaid, has been in the voluntary sector. The first lesson I learned as a public servant was that senior research officers did not sign their letters. As a result, I could not inform my many colleagues in academia and voluntary organizations where I was. This was the first thing to change in government, for I could not see functioning as a nameless, faceless bureaucrat far from the sustenance and challenge of people outside the bureaucracy, as an effective way to serve the public. My second lesson was that having family responsibilities was my own problem. The women's movement had not yet convinced the Canadian establishment that the personal is political. Hence, in 1969 (on leave without pay) on a grant from the Canada Council I studied the labour force attachment of European women with family responsibilities and looked at the support systems that could explain their higher participation rates. I found that ideological supports, maternity benefits, and available child care were the most salient factors. I also found that importing expendable "guest workers" was in many countries a preferred alternative to the deployment of women in all economic sectors, in keeping with prevailing gender-role ideology.3 Upon returning from my research abroad, I had just completed a report on rehabilitation services in Canada for the United Nations when I was called to the Privy Council Office (PCO) in December 1970 and told that a report had just been tabled by the Royal Commission on the Status of Women (RCSW) and that events had most likely already overtaken it, and I was asked what I thought. I took the report home for the weekend and realized that the values reflected therein were far ahead of prevailing views in Canadian society and that strategic implementation would result in a transformed Canada if we addressed the challenge pragmatically. In Canada, unlike what had taken place in the Nordic countries, we initiated legislative reform before we had a sexrole debate. To ensure positive outcomes, we first had to change the policy environment by getting more women, and also more citizens from outside government, into the decision-making process. Finding a majority of women for the Interdepartmental Committee (IDC) was a most formidable task since there were no women deputy ministers and fewer than a handful of assistant deputy ministers. A cribsheet of overqualified, underclassified women in all departments affected by the report was

29 State Initiatives

quickly developed, and I persuaded their deputy ministers to authorize them - many for the first time - to speak on behalf of their departments. My other condition for undertaking the task was that citizens would be invited to sit on the working groups and would be remunerated - and this too was unprecedented. During 1971, over 100 public servants were engaged in detailed studies of the report and "status-of-women" questions. Over 100 meetings were held of the IDC and five working parties on policy clusters.4 This IDC was responsible for global examination of the report and related matters, and for the recommendation of policy guidelines for the consideration of the cabinet. The working parties were freed from the usual constraints that departmental representatives are subject to. Women and men from a wide range of age groups and experience backgrounds encountered many difficult challenges to dearly held social values as we went over the documented prescriptions in each policy cluster and over their feasibility and their effects on Canadian society. Mr Andras was first named minister responsible in March 1971. He convened the senior management representatives of thirty-three crown corporations to draw to their attention the recommendation specifically addressed to them, but we had no compelling mechanism like the Equal Opportunities Commission in the United States. It would be a long time before crown corporations were affected by employment equity legislation, set in motion by the Abella Commission. The strategic position of the coordinator in the PCO was a crucial factor, enabling the integration of a gender perspective into all policy issues. As an eminence grise, the coordinator was sometimes able to have the last word, scribbled in the margins of documents destined for the cabinet or the Prime Minister.5 The RCSW not only exposed the status quo ante of pervasive, often legal, sexist discrimination but identified four basic principles of equal opportunity for women: the freedom to choose whether or not to take employment outside the home; sharing the responsibility for the care of children by the mother, the father, and society; special treatment related to maternity; and interim special treatment to overcome the adverse effects of discriminatory practices.6 Only the first one is anachronistic today;7 the rest remain valid and are enshrined in the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). To remind us how far ahead of the times these principles were, let us revisit the status quo ante, before the Royal Commission - or B.R.C., as we call it.

30 Freda L. Paltiel

- A married woman lacked legal identity, capacity, and entitlement. She was under the legal control and authority of her husband in common law and under the Civil Code. - Women could not testify against their husbands or have a separate domicile. - A widow had no automatic legal right to share equitably in her husband's wealth. - An Indian woman who married a non-Indian or non-registered Indian, together with her children, lost all the rights and privileges of an Indian, while an Indian man could confer Indian status on his non-Indian wife. -All Canadian women who married aliens before 1947 became aliens. - Husbands were deemed to be homeowners or home purchasers by the National Housing Loan regulations, even if the wife was the actual owner or purchaser of the family home. - Housewives were effectively excluded from access to training by the Adult Occupational Training Act provision, which required candidates to have either a three-year attachment to the labour force or to have one or more persons wholly or substantially dependent on them for support to be eligible for a training allowance. - Pensions and superannuation policies and programs legally discriminated on grounds of sex and marital status on the assumption that all women were, rather than had, dependents. - "Protective" labour legislation had the effect of restricting female job opportunities, and "help wanted" ads specified whether male or female applicants were sought. - Women were not admitted to National Defence Military Colleges as a matter of policy; indeed, a woman could be released from the Canadian Forces because she had a child. - Wife assault was regarded as a private intimate matter between husband and wife; vide "the rule of thumb." - There were virtually no licensed day-care centres. - In the media, women were invisible and inaudible, confined to the women's pages. Women in academia were scarce, insecure, and marginalized. - The Criminal Code was replete with references to "women of previously chaste character." - Attempting suicide was a criminal offence that gave rise to a criminal record. And the list goes on and on! This paper is not a catalogue of government initiatives or a status report on them. Various current federal status reports exist;8 and for al-

31 State Initiatives

ternative views, there is the "parallel report" of the National Action Committee on the Status of Women (NAG), along with a growing body of academic feminist analyses. To ensure accountability and transparency, Health and Welfare Canada has, since 1979, adopted the "plans of action" prepared by my office (the Office of the Senior Advisor, Status of Women) and reported on them annually.9 In this paper, four capsule case examples of policy development are presented, two having their direct sources in the RCSW recommendations - namely, those dealing with child care and with income security - and two on which the Commission's report was virtually silent: women's health, and that which we call in Canada "family violence."10 The commissioners left some frontiers for us. CHILD CARE

In an October 1990 speech to the Canadian Association of Paediatric Hospitals, the Hon. Perrin Beatty, Minister of National Health and Welfare, stated that the Prime Minister is on record that the national child care program will be in place and implemented by the end of this mandate. In our design of that program, quality, availability and affordability of child care will be central goals. We will be looking to expand partnerships with employers, provinces, voluntary organizations and the community to create a child care environment in this country in which the maximum possible number of children can receive the finest care while their parents have the freedom to work.: 1

Child care is an issue of clear and growing need, with differing, even polarized, visions and deferred solutions. Twenty years ago, when only 20 percent of mothers with children under age fourteen were in the labour force,12 the Commission admonished that "for the federal government to fail to proceed with a specific child-care programme, resolved from welfare legislation of a more general nature, would be to deny the claim which Canadian women have made for concrete assistance in the burden of responsibility which they have been compelled to carry.M1 3 Sixteen years later, the Cooke Task Force on Child Care concluded that "the government which initiates and perfects child care systems will be rewarded by the accolades of the people and, in the long run, by the favourable judgement of history."14 The challenge is to take the right first steps towards that long run. The RCSW called for a National Day-care Act that would include substantial assistance towards capital costs for an initial seven-year period; for federal funds to be made available on a cost-sharing basis for the

32

Freda L. Paltiel

building and running of day-care centres meeting specified minimum standards, with the federal government paying half of the operating costs and, during an initial seven-year period, 70 percent of capital costs; and providing similar arrangements for the Yukon and Northwest Territories.15 The recommendation of a National Day-care Act was clearly ahead of its time. In 1971, the first Canadian Conference on Day Care demonstrated that child care was not an idea whose time had yet come. While in health care we had one pioneering province that in its vision and praxis showed the way, this was not yet the case in child care. The government of the day, reflecting the Zeitgeist, undertook the more modest policy approach of providing federal contributions for the orderly development of day care for extended coverage and the expansion of facilities through regulation changes to the Canada Assistance Plan (CAP). In addition to shared costs under CAP, in 1972 it established a National Day-Care Information Centre within Health and Welfare Canada, which continues to consult and to monitor and report on developments as part of the expanded Child Care Division. In 1972 I wrote that day care in North America was held back by problems that appeared to be jurisdictional, ideological, and financial in nature.16 In the early 19705 the prevailing ideology was strictly opposed to the basic RCSW principle that the care of children is a responsibility to be shared by the mother, the father, and society. Child care was not seen as society's business but as the family's concern and, of course, the mother's "job." The state would only come in when child protection was involved. State-provided child care was seen as "totalitarian." At the other end of the spectrum, child-care advocates called for free, universal, unlimited child care. There were also ideological battles between the early child educators and social workers. A serendipitous development in child-care and other social services occurred during the early 19705 as a result of federal employment creation programs, mostly Local Initiative Projects (LIP). New project agencies leapt into being, mostly led by grass-roots women's groups, providing services to the aged, day care, rape-crisis intervention, aid to battered women, information, and referral - in other words, providing caring services to client groups that were unserved or underserved by the established mainstream agencies. By demonstrating that they were needed, however, many services survived to claim support from community funds and from municipal and provincial governments, however reluctant they may have been initially. New or pioneering services were also created through the availability of welfare development grants. A parallel development was the provision of spaces for child care in certain projects supported by the Canada Mortgage Housing

33 State Initiatives

Corporation. Later, a limited number of day-care facilities were established in federal and provincial government buildings for public servants. In 1980, when addressing a large Toronto audience on the occasion of the tenth anniversary of the RCSW, I stated, to spontaneous applause, that child care was very fragile in Canada. That statement made front-page headlines in the Globe and Mail. By the early i g8os, the labour force participation of mothers with children under age thirteen had leapt to 53 percent (1981), and Canadian women's groups were sounding the alarm of a crisis in child care. In 1982 Health and Welfare Canada co-sponsored, with the Canadian Council on Social Development, a second conference on day care. Following that meeting, the Minister of National Health and Welfare provided funding for the establishment of two new non-governmental organizations (NCOS) - the Canadian Day Care Federation, representing the constituency of welfare providers; and the Canadian Day Care Advocacy Association, a coalition advocating accessible, universal, affordable, nonprofit child care. Also in 1982, a new mechanism for federal-provincial collaboration was established - the annual meeting of ministers responsible for women, also attended by senior officials. The first two matters that participants agreed to consider were family violence and wife battering, and child care. At the federal level, an interdepartmental committee undertook a policy review of day care, including parental and child benefits. The Minister Responsible for the Status of Women established the Cooke Task Force on Child Care with a broad mandate. The general prescription of the task force was that "federal, provincial and territorial governments, working together, should immediately take steps to develop complementary systems of child care and parental leave as comprehensive, accessible and competent as our systems of health care and education."17 Its major recommendation was for a fully funded program that would cost federal and provincial governments a total of $11.3 billion to establish and run over the period to the year 2OOi. lS The Royal Commission on Equality in Employment, chaired by Judge Rosie Abella, made a critical distinction between day care and the more comprehensive child care, and called for a national policy dealing with the care of children. In her ground-breaking report, Judge Abella referred to child care as "a necessity."19 In the mid-i9805, child care became a major issue, championed by an array of interest groups - coalitions of women's groups, trade unions (notably the Canadian Labour Congress), parents' groups, caregivers, and advocates for the poor. Their major concerns were avail-

34 Freda L. Paltiel ability, flexibility, affordability, quality, comprehensiveness, the tax treatment of child-care expenses, parental-leave provisions, private or public auspices, care for children with special needs, and salaries and conditions for child-care workers. In the 1984 federal election campaign, child care had emerged as a key issue in a national media "women's debate" involving leaders of the three political parties. The new Conservative government's first speech from the Throne identified child care as a key priority. And at the 1986 first ministers' conference, the Prime Minister tabled a document entitled "Dimensions of Equality: A Federal Government Workplan for Women," which, inter alia, committed the government to "implementing a coordinated approach to child care."20 The speech from the Throne that year had reaffirmed child care as a priority. Following hearings held across the country, a parliamentary Committee on Child Care reported in March 1987 on the future of child care in Canada in the context of the changing needs of the family. The committee's conclusions stood in sharp contrast to those of the Cooke Task Force, especially in its recommendation that the wide range of child-care activities found in communities throughout the country and involving a mixed approach of voluntary, commercial, and public resources, be supported and strengthened as "the best way of enhancing parental choice and encouraging their involvement in a process that is of vital concern to them. This would not be the case in a child care system run completely by governments."21 The parliamentary committee also made a number of significant recommendations on the provision of maternity and parental leave under the Unemployment Insurance Act. Since the early 19705, the number of full-time day-care spaces has increased significantly. From a low of 28,273 spaces in 1973 it grew more than tenfold to 298,083 spaces in 1989. While the increase is striking, it does not begin to meet the need. Recent estimates of the degree of unmet needs for regulated day-care range from 90 percent for working parents of infant children, to over half the child-care spaces needed by working parents with children aged between three and six.22 A National Strategy on Child Care was announced in December 1987. The federal government proposed a commitment of $6.4 billion over the period 1988-89 to 1994 towards improvements in the quality, affordability, and accessibility of child care. The strategy (which was also known as Bill C-144) comprised four elements - new cost-sharing legislation; the Child Care Initiatives Fund; enhanced tax assistance to families with preschool-aged children (e.g., the Child Tax Credit Supplement and the enhanced Child Care Expense Deduction); and the Child Day-care Initiative for Indians on reserve.

35 State Initiatives

In rejecting Bill €-144, the Canadian Advisory Council on the Status of Women (CACSW), which supports the idea of a universal system, argued that with almost two million preschool children needing childcare services, the proposal to double the available licensed child-care spaces was inadequate. The Council described the tax provisions as "tax breaks for higher-income parents" and considered that the strategy inadequately recognized the contribution of parents who stayed at home. The National Action Committee on the Status of Women also criticized the lack of provisions to increase wages and stabilize the level of turnover of child-care workers. Both NAG and CACSW criticized the omission of provisions for maternity/parental benefits in the act and were opposed to any public subsidies to commercial centres. The National Council of Welfare criticized the decision to supplement the refundable child tax credit on the ground that this "will divert huge amounts of money from the vital task of increasing the number of ... spaces."23 It recommended that the Child Care Expense Deduction remain at the same level and that it be converted to a nonrefundable tax credit, so that well-off families would not benefit more than low-income ones. The Council also recommended that operating grants be awarded to existing commercial child-care centres but not to new ones. The National Child Care Strategy was the object of sharp debate within Parliament and in Canadian society, reflecting differences in values and expectations. Despite the ultimate demise of the federal legislation, the proposed strategy generated considerable new impetus for provincial policy review and public input. The successful integration of work and family responsibilities is now articulated as a key element of Canada's stated goal of economic equality for women. It was on the agenda of the first ministers at their 1989 conference, when each jurisdiction agreed to develop strategies in line with its priorities, resources, and unique circumstances. The most important federal component is a national child-care program.24 In the meantime, the federal government has continued to support the child-care needs of lower-income families by cost-sharing in eligible provincial expenditures on day care under the Canada Assistance Plan (CAP). When the amount spent under CAP, the tax provisions, the Child Care Initiatives Fund, and training are included, the federal government currently spends close to $1 billion annually on child care. VIOLENCE AGAINST WOMEN

Madame Justice Bertha Wilson has clearly demonstrated that women judges can make a difference. The recent decision by the Supreme

36 Freda L. Paltiel

Court, upholding the acquittal of a woman who had killed her husband, legally recognized the "battered woman's syndrome" and its relevance to self-defence, affirming the fact that wife assault is a serious crime with major consequences. This was not the case in 1970, when the RCSW was largely unaware of the extent and severity of wife abuse, or even in 1982, when a parliamentary report on wife abuse was greeted with derisive laughter in the House of Commons. In Canada, as elsewhere, wife assault was first recognized as a serious, pervasive, and intolerable problem by the women's movement, which in the early 19708 initiated efforts to provide shelter and assistance to battered wives, and to promote better understanding of the problem within the context of the position of women in society and of violence against women. The period 1975-80 in Canada was characterized by widespread reform of family law, particularly matrimonial property law, aided by a new cohort of feminist lawyers working towards the recognition of marriage as a partnership of equals, while at the same time challenging the Criminal Code.2$ Ironically, the dramatic event that galvanized the wives of this country and triggered the impetus for such gains was the famous Murdock case, where Iris Murdock was rewarded with black eyes, multiple injuries, and a pittance in alimony for merely performing her wifely duties - i.e., total responsibilities for home and ranch for long periods in her husband's absence. The experience gained by Canadian women in the development and operation of rape crisis centres and sexual-abuse centres and in the development of protocols subsequently adopted by police and health professionals was far in advance of any organized response to wife assault. Child abuse was first recognized as a social and health problem by physicians, and was systematically addressed through protocols, compulsory reporting, registries, etc. However, it was not until the Badgley Report that the extent of sexual assault against girls and the lasting damage it inflicts on its victims came to be recognized. In 1986-87, Health and Welfare Canada was allocated $20 million - and the Department of Justice, $5 million - over a five-year period for initiatives aimed at the problem of child sexual abuse. Recently, Health and Welfare Canada conducted the first national study of "elder abuse in the home." In the family setting, one senior in twenty reported one or more forms of abuse from a family or household member. This is another reminder that caregivers need support and respect, while seniors need wider contacts. My work over the past decade has been both conceptual and practical, divided between attempting to better grasp and expose the phenomenon of family violence and building adequate and appropriate

37

State Initiatives

public-policy responses. This has involved wading through extensive victim-blaming literature, professional and official. In a 1979 paper on "Shaping Futures for Women," I noted: "The extent of domestic violence that exists is largely hidden, widely denied, professionally condoned under the guide of symbiotic, sadomasochistic relationships and hesitatingly addressed by public policy, which fears that admission of its existence is yet another assault on the integrity of the family."26 Most writers agree that family violence occurs in all socioeconomic strata, but because of reporting systems, less successful concealment, or greater use of public agencies, the problem is seen predominantly in those families with fewer resources and with environmental deficits. In a later paper to the American Public Health Association, subtitled "From Closet to Public Policy,"27 I acknowledged that the problem of wife assault was officially recognized in Britain and the United States before it gained public attention in Canada. My consciousness was raised in 1976 by Millie Miller, M.P., who headed the U.K. Parliamentary Committee on Domestic Violence in 1975-76. A visit to the U.S. Clearinghouse on Family Violence in 1979, just before it was dismantled, determined my efforts to establish such an office in Canada. In 1979, Linda MacLeod was a member of our departmental Advisory Committee on Status of Women Concerns, which developed Health and Welfare's plan of action in 1980, in which family violence and wife abuse were introduced. When she moved to CACSW, the first Canadian overview on wife battering was published after consultation with shelter workers. In 1980, I went across the country, meeting with groups. Many perceived social workers as secondary victimizers. In June, the Canadian Association of Social Workers (CASW) established a national task force on "interspousal violence" and invited me to chair it. Subsequently, the task force held a federally aided national symposium with grassroots shelter workers, crisis intervention workers, other volunteers, politicians, policy-makers, and other concerned citizens to consider the nature and extent of the problem, its roots, the progress achieved in addressing it across Canada, and strategies for action. As expected, this meeting revealed conflicting perspectives, impatience with slowness of action, and lack of support to bare-knuckled front-line workers. Nevertheless, it served as a bridge between the various interested constituencies. At the meeting, the establishment of the National Clearinghouse on Family Violence in Health and Welfare Canada was announced. Members of the CASW task force became catalysts in their jurisdictions. The task force developed a "position paper and practice guidelines for work with assaulted women" for the social-work profession in 1982.

38 Freda L. Paltiel

Meanwhile, provincial responses were initiated under the aegis of the Federal/Provincial Senior Status of Women Officials, leading to the establishment of responsibility centres in each jurisdiction. During 1981-82, nearly one fifth of the program grants from the Secretary of State Women's Program had as their primary topic the issue of violence against women, with 4 percent of the total grants and contributions budget being allocated to these projects. When the House of Commons Standing Committee on Health and Social Affairs tabled its report on wife battering in May 1982, there were snickers from the backbenches. This time, however, there was public outrage at this display of ignorance: this time, the shame belonged to the M.P.S. The report's recommendations dealing with special training for the RCMP, funding for shelters, research and funding for batterers' programs, research into causes, publicizing of the problem, and a federal/provincial conference on the subject fell on fertile ground. One of the outcomes was the distribution, by Monique Begin as Minister of Health and Welfare, of information on wife battering to 3.5 million recipients of family allowance cheques. In 1983-84, recognizing the need to engage the lagging health sector, we developed a federal/ provincial/territorial network of senior health officials and prepared a situation report on the health aspects of family violence and wife assault, summarizing jurisdictional health activities, still sparse at that time. During the decade, there were landmark signs of progress, including an increase of shelters to 319 in 1990 from seventy-one in 1979, the overhaul of Bill C-127 to enable one spouse to charge the other with sexual assault, the nationwide police-charging policy against wife batterers, and the development of over 100 treatment programs for them. The most significant of these developments was the 1988 announcement of the federal government's $40 million Family Violence Initiative. This four-year undertaking, led by Health and Welfare Canada, comprises specific initiatives such as public education and awareness, the development of resource materials for professional groups and the general public, the development of protocols, research on social causes and the social and health consequences of child sexual abuse, and regional or national seminars and conferences. A major allocation ($22.2 million) is being administered by Canada Mortgage and Housing Corporation to fund up to 500 units across Canada for survivors and their children. Today, in every jurisdiction in Canada we have focal points and mechanisms to address family violence. The reality is that there still remains a great deal for them and others to do.

39 State Initiatives HEALTH AND WELL-BEING

In health, as in family violence, social security, and child care, conceptual work on the relevance of changing the paradigms has gone hand in hand with informing and changing the practices of the past. The expression "women, health, and development" (WHD) is used to denote the complex interrelationships between the health of women and their social, political, cultural, and economic situations. Health is of course a societal concern, a women's concern, and a feminist concern. Eighty percent of Canada's health-care workers are women, but few are in positions of authority. Women are the major stakeholders in the health system - as providers, guardians, and brokers - and because of their reproductive functions, their enduring experience of noncurable chronic diseases, and their longevity, they are major service users. In Canada, as elsewhere, their absence from decision-making positions impedes the further improvement of our laudable health-care system from providing the most accessible, appropriate health care for women of all socioeconomic groups, cultures, ages, and locations. The links between women's reproductive health and the state are a thorny issue - one that is currently being studied by a royal commission and the object of a controversial bill. In 1980, the Office of the Senior Advisor on the Status of Women co-sponsored (with CACSW) a forum on reproductive health and women's work. In 1982-83, I chaired a task force that reported on the "reproductive health concerns and relevant activities" of Health and Welfare Canada.28 Our most recent National Health Research and Development Program competition provides a half-million dollars per year for three years for reproductive-health research, including contraception, fertility problems, and other aspects of family planning. In 1984, in anticipation of the International Youth Year, we organized a colloquium on "adolescent girls' health" so that their health needs, risks, and tasks would not be blurred and obliterated by a gender-neutral focus on youth.29 The department's 1986 key-informant survey on women's health issues across Canada identified mental health, reproductive health and disorders, violence against women, occupational and environmental health, nutrition and fitness, and chronic disease as major national concerns. Underlying factors, groups at special risk, as well as factors that promote health were also identified by the key informants. The World Health Organization (WHO) and its regional Pan American Health Organization (PAHO) have WHD programs in which Canada plays a leading role. In 1988, my office, as Canada's focal point for

4O

Freda L. Paltiel

WHD initiatives, organized a symposium on the changing patterns of health and disease in Canadian women as part of the implementation of the Nairobi Forward-Looking Strategies for the Advancement of Women (FLS) to the year 2000 and the PAHO Regional FLS on Women, Health and Development. Women's health exponents from across Canada shared baseline information and concerns, and proposed strategies to promote, protect, and restore women's health. The proceedings of that symposium also contain a valuable compendium of trend data on women's health.30 Recognizing the need for concerted federal/provincial/territorial action to address the issues identified and to promote strategies, the Conference of Deputy Ministers of Health agreed to establish an intergovernmental working group on women's health. A gender lens on addictions, their relation to stress, and their consequences is recent and still underdeveloped. Wong and Wilkins31 cite a study by the Centers for Disease Control which states that approximately 75 percent of deaths due to cancer of the trachea, bronchi, and lung among women are attributable to smoking, and 14 percent of stroke mortality is also due to smoking. In Canada, while overall tobacco use has declined, Statistics Canada reports that in the 15-24 age group, young women and men are equally likely to smoke, and one in three young women starts smoking. In March 1988, Health and Welfare sponsored a national workshop on "women and tobacco." The same year, two important acts related to tobacco were passed - the Tobacco Products Control Act and the Non Smokers Health Act. The latest National Alcohol and Other Drugs Survey reported that the highest rate of alcohol consumption amongst women is in the 2024 age group. The survey also revealed that the highest rates of use of prescribed narcotics, sleeping pills, and tranquilizers were reported by women.32 Launched in 1987, the National Drug Strategy coordinates the efforts of fourteen federal departments, provincial and territorial governments, addictions agencies across Canada, and the private sector in the fight against alcohol and drug abuse. The department has recently produced a special issue of Chronic Diseases in Canada (March 1990), focused on women, and an Active Health Report on Women, based on Canada's Health Promotion Survey. We are also working with the provinces, professionals, health organizations, and women's groups on consensus-building for breast screening and for the control of cervical cancer. Through our grants and contributions programs, we support and report annually on many hundreds of worthy projects carried out by women's community groups, women's health groups, and social scien-

4i

State Initiatives

lists, and we encourage and support gender-specific projects by organizations such as the Canadian Mental Health Association. We provide sustaining welfare grants to national organizations like the YWCA. In addition, we provide sustaining health grants to assist national voluntary health organizations, including Action/Canada, the La Leche League of Canada, the Osteoporosis Society of Canada, the Turner's Syndrome Society of Canada, and Lupus Canada. (The latter disease occurs nine times as frequently in prime-age women as in men.) In addressing the concerns of doubly disadvantaged women, not only must we consider their needs and their risks, but increasingly we are also coming to know and understand their incredible strengths and to learn from them better, more sensitive ways to address equity issues in Canada. Collaboration with and support to Aboriginal women in addressing their concerns must be a priority for the 19908. Back in 1971, our working group on doubly disadvantaged women had a special body comprised of Native women who early identified their concerns and ways of addressing them. Support to friendship centres was one of the outcomes of those deliberations, and of course much energy for years thereafter was concentrated on changing the Indian Act. Today the agenda is wider, and the needs remain critical. At a recent circumpolar nursing conference, Northwest Territories Health Minister Cournoyea stated the importance of intersectoral collaboration for healthy populations: Healthy Public Policy requires public interest and political will, to impact favorably on physical and mental health and social well-being at the individual and community level. In the northern context healthy public policies, coming from government departments like renewable resources, education, housing, municipal and community affairs, social services and health, should lead to sound government decisions concerning such things as affordable and good housing, employment and family income, water, sewer and sanitation services, educational and recreational programs, and measures to ensure the availability of reasonably priced nutritious food.33

Our annual Status of Women Report includes increasingly detailed accounts from our regional offices working in northern and Aboriginal communities on their initiatives and programs to promote and improve women's health. The success of these initiatives depends very much on the dedication, ingenuity, and perseverance of the nurses and community health representatives who work under most difficult circumstances in remote and isolated areas to provide culturally appropriate services.

42

Freda L. Paltiel

In collaboration with the Indian and Inuit Nurses of Canada and through the Indian and Inuit Health Career Program (IIHCP) within the Medical Services Branch, we are succeeding in increasing the level of participation of women and Native people in health careers. Since 1984, there have been ninety women bursary recipients - sixty-three in nursing, twenty-five in medicine, and twenty-seven in other programs. The issue of double disadvantage is one that clearly concerns women with disabilities. The tendency to marginalize disabled persons is compounded by the fact that the special needs and risks of women with disabilities have not always been a priority for organizations working for disabled persons. While most Canadian women benefited from a "kick-start" in 1975, the turning point for women with disabilities occurred a decade later: in 1985, following a federally sponsored national meeting, the Disabled Women's Network (DAWN) was born and a new agenda was created. Initiatives have included federal support for the preparation of a series of policy papers on violence, mothering, self-image, and employment, and of discussion papers on new reproductive technologies; the publication of Disabled Women and Poverty by the Coalition of Provincial Organizations of the Handicapped; the production of films by Studio D of the National Film Board of Canada; and the completion of a survey on "physical act patterns and needs of physically disabled women in Canada" by Fitness Canada. A most promising development in mainstream women's organizations is their collaboration with DAWN. When DAWN held its first national conference - entitled "Self-Image Symposium 1990: Who Do We Think We Are" - the mainstream women's organizations were participants. And conversely, the theme of the 1990 annual meeting of the Canadian Research Institute for the Advancement of Women (CRIAW) was women with disabilities. Since 1984, we have been working with the National Organization of Immigrant and Visible Minority Women of Canada, an umbrella NGO representing over 500 immigrant and visible-minority women's groups in Canada. This organization has presented substantial briefs to the federal government, outlining the concerns of its members, which we have conveyed to many health and social-service organizations, as well as to provincial governments, for their attention and appropriate responses. These concerns have always included access to appropriate health and social services - i.e., the availability of multilingual information on health services and programs; the preparation and distribution of culturally sensitive health-related materials; research into the health needs and risks of immigrant and visible-minority women; programs recognizing and reflecting the needs of immigrant and visible-minority

43

State Initiatives

women, specifically in mental health, family violence, occupational health, and the health of the elderly; mechanisms for relevant community input and feedback; the funding of training of field professionals for both mainstream and ethno-specific services; the training of interpreters; and employment equity in health services. Closing the gap between social programs and health programs is urgent, especially at a time of fiscal restraint. The 1973 review of social security had identified the need not only for improved income security but also for an increased range of services to individual's families and communities. A proposed Social Services Financing Act (1978) attempted to respond to the changing social and personal needs of Canadians by committing increased funding to assist provinces with the costs of providing a comprehensive range of social services to all Canadians. The philosophy behind the act was that almost all Canadians at some point in their lives need a social service for themselves or someone close to them. The economic downturn and other factors intervened, and the act was withdrawn. Until we have a full range of social and community services, we will not achieve cost effectiveness in our health-care system. The most sophisticated, costly, hospital-based services - which are also the most entrenched, advanced, and available - will be used, like Mount Everest, because they are there. Moreover, hospitals are still our training grounds for health professionals, exposing them only to the most acute and severe illnesses rather than to a full spectrum. Blaming hospitals or doctors is not the answer. We need to develop a more balanced spectrum of social and health-caring systems for appropriate, accessible, timely quality care in which the hospitals, technology, drugs, and sophisticated modalities are used only when needed, and not in the absence of more suitable alternatives. INCOME

SECURITY

In its chapter on poverty, the RCSW'S report aptly concluded that, proportionally, more women than men are poor; that sole-support mothers are extremely poor; and that while discrimination and the lack of supporting institutions cause hardship among women at all income levels, they cause the greatest distress among women who are poor.34 These conclusions are still entirely valid, despite important positive changes that have occurred since then. In a paper entitled "Is Being Poor a Mental Health Hazard?" I wrote: Female poverty can begin with or result from being a failure-to-thrive infant in a family where male babies are preferred; a culturally deprived childhood; and

44 Freda L. Paltiel adolescence in a low socioeconomic status (SES) family, especially if, despite high mental ability, the educational expectations for university attendance are lower than males of the same class or females of higher SES families; a low-paying or an unstable dead-end job in the secondary labour market, unemployment and under-employment; plant or mine closures; foreclosures; technological change which results in deskilling, downgrading or elimination of jobs; economic dependency on a man who can't or won't share his income or assets; immature motherhood, widowhood, separation or divorce with children and poor enforcement of maintenance obligations; chronic disease or disability; chemical dependency; natural disasters; migration; an old-age with inadequate income security entitlements based on past earnings and income deficits; being caught in a welfare trap; systemic discrimination; or any combination of these.35

A recent CACSW report notes that half of poor adult women in Canada are in the labour force, four out of five of them being part-time workers. The report charts the dramatic increase in the numbers of poor working women - up 160 percent since 1971 (1986 figures) and rising at five times the rate of their male counterparts.36 Similarly, a 1990 National Council of Welfare report reviewing changes in social programs and in legislation (including the Charter of Rights and Freedoms), as well as the substantial increase in the labour force participation of women, concludes that their risk of being or becoming poor remains as great, relative to men, as it was ten years earlier. The Council argues that the vulnerability of women to poverty is rooted in causes almost totally beyond their control - i.e., child-care responsibilities, labour market inequities, marriage breakdown, and widowhood.37 A 1990 report by the Economic Council of Canada38 notes that the phenomenal growth in "nonstandard" employment (i.e., part-time jobs, short-term work, small entrepreneurs, and temporary workers) between 1981 and 1986 represented 50 percent of new jobs, typically held by women and youth, with such jobs now comprising 30 percent of all employment. Nationally, women's share of total income has risen from 22 percent in 1971 to 35 percent in 1987. The rising incomes of wives accounted for much of the substantial growth in family incomes in the 19705 and helped to slow what would otherwise have been a much steeper decline during the recession of the early 19805. The increased earnings of women have clearly been a major factor in our country's economic growth; they have been instrumental in reducing the number of lowincome families and enabled many families to ride out the recession of 1981-82.

45

State Initiatives

But while women today comprise 44 percent of the Canadian labour force, regardless of occupation, women employed full-year, full-time in 1987 earned 66 cents for every dollar earned by men similarly employed, showing very slow improvement from just under 60 cents in 1971. In no occupation did the average earnings of women exceed those of men, showing the extent and persistence of systemic discrimination. The estimated number of low-income persons in Canada is 3.3 million. It is a paradox that while the proportion of women with high incomes grew faster than that of men in the 19705 and igSos, Canadian women are overrepresented among the low-income population - 58 percent in 1988. Indeed, the incidence of low income in Canada has remained feminized, with families headed by women and women who live alone predominating. In 1988, female lone-parent families, which represented less than one tenth of all families, accounted for 20 percent of families with children and for one third of all low-income families; among unattached individuals, nearly two out of three (63 percent) were women. Although there have been improvements since 1984 in low-income rates for families (from 14 percent to 10 percent), a very notable exception to this trend is that of female lone-parent families, whose rate (just over 53 percent) has changed little since 1980. Statistics Canada has identified a "core group" of one in four female lone-parent families with no earners who experience a rate of low income of 94 percent! Moreover, 15 percent of Canadian children are in low-income families. Poor children belong to poor mothers. Clearly these are target groups for reducing inequities. The economic status of Canada's seniors has been a matter of public concern for many years, with pension debate and reform feminized in the early 19705. This has continued throughout the International Women's Decade and beyond. We first had to address the implicit assumptions based on the Parsonian theory of sex-role complementarity that underlie Canada's social security programs. These had to be changed into explicit assumptions in order to be examined in the face of changing roles and expectations, to forge new principles of equity in entitlements. My study of dependency and its consequences provided evidence that dependency and insecurity are two sides of the same coin and that even in upper-income households, a wife does not necessarily enjoy life-long security based on her husband's income or willingness to share. Indeed, a major transformation of family law in Canada was engendered by such realizations. But at that stage, the reform of family law had not yet taken place in Canada.

46

Freda L. Paltiel

"Being Old and a Woman in Canada," written in 1973, revealed women's cumulative deficits, needs, and risks.39 Most gerontologists were still asserting that old women were better off than old men because they did not retire, just carried on their normal household chores, took longer to die, and did not commit suicide - in short, they just endured. And while social scientists were slow to recognize the abject poverty of our senior women, many women in and out of government wondered why I was concentrating on pensions. (An exception was the persevering Manitoba Action Committee on the Status of Women.) The International Women's Year - ig754° - was a turning point in two major respects: first, the pension system was reformed in order to ensure gender equity; and second, a major breakthrough occurred in the federal government's grant policy towards women's organizations.41 The first day of the International Women's Year saw the enactment of equal treatment for men and women under the Canada Pension Plan (CPP). Canada was the first country to take this step. The concepts underlying this legislation set the groundwork for subsequent reform with women in mind. I have described Canada's pension system as a four-layer cake with only a small portion and little or no icing for women. The four layers are: — Old Age Security (OAS), a universal pension based on age and residence, together with a Guaranteed Income Supplement (GIS), an income-tested supplement guaranteeing all pensioners a minimum income, and a Spouse's Allowance (SPA) for eligible spouses of OAS pensioners, now extended to 60—64-year-old widows and widowers; — the Canada and Quebec Pension Plans (CPP/QPP), an earnings-related contributory pension; - private sector pension plans; and - personal savings and investments. Among the critical questions that emerged was that of equity for women of different cohorts with different marital status at different life stages, whether working outside and/or inside the home, and of the need to recognize the contribution of their work and to create the concept that pensions are important assets, to be shared equally. The poverty of single seniors, mostly women, was very severe prior to 1979, when the first increase for single pensioners was introduced into the Guaranteed Income Supplement to Old Age Security benefits. The Spouse's Allowance was initially introduced to recognize the difficult circumstances faced by the current cohort living on the OAS pen-

47

State Initiatives

sion of only one spouse. What began in 1975 as a program providing a monthly income-tested benefit to the 6o-64-year-old spouse of a pensioner has been expanded over the years to encompass more and more needy individuals in this age group, to include all low-income, widowed persons aged 60 to 64. As a result, an additional 50,000 Canadians, the majority of whom are women, receive a maximum yearly benefit of about $8,260 (1990). However, single, separated, and divorced individuals between the ages of 60 and 64 are not covered under the SPA program. As a result, challenges have been launched against that program under the Charter of Rights and Freedoms, on the grounds of marital-status discrimination. Cohort and gender analysis also revealed the forgone income of wives and mothers. In 1978, the GPP was one of the first pension plans to introduce the division of pension credits between spouses upon divorcing. The "dropout provision," also effective since 1978, allows parents to drop from their contributory records periods of low or zero earnings during which they were raising children under the age of seven, with these dropout periods being retroactive to the beginning of the plan in 1966 for the purpose of computing benefits from 1978 onwards. The 1981 National Pensions Conference provided a forum for all stakeholders in the pension system to present views and voice concerns. Representatives from governments, the pension industry, employers, employees, unions, women's groups, pensioners, and individual Canadians were invited to consider four major areas of concern about private sector pensions, as identified by the federal government — namely, more adequate coverage of the labour force; portability, vesting, and locking-in problems faced by mobile workers; protection against inflation; and the special barriers encountered by women in acquiring a reasonable pension entitlement. I ensured that women and pensions was a major theme and that women speakers addressed the conference from their various perspectives. In September 1981, we convened a special meeting of representatives of umbrella women's organizations who had participated in the National Pensions Conference. It revealed the need for women to better understand the social-security system and to contribute to its preservation and reform. Subsequently, the department provided funds to coalitions of women's groups interested in holding regional seminars across the country. The 1981 conference and the ensuing support granted by Health and Welfare Canada to seminars on pensions organized by coalitions of women's groups were instrumental in finally revealing to all the cumulative deficits of the current cohorts of aged women and the con-

48 Freda L. Paltiel tinuing disadvantages to younger cohorts. The meetings raised the level of understanding enormously, and in 1984 women's groups were successful in reversing a policy to de-index OAS benefits. Women's groups and others indicated that there was a need to further reform the CPP in order to achieve equity for divorced and separated spouses. After extensive consultations, a package of improved CPP benefits was introduced on i January 1987, and the division of CPP pension credits became mandatory upon divorce and notification thereof to the Minister of Health and Welfare. If separation has lasted for one year, either spouse may apply for a division of pension credits (with no time limit for making application and no requirement for divorce) ; and former partners in a common-law relationship may apply for a division of pension credits (within four years after they have separated, if they have been living apart for one year). Other amendments to the Canada/Quebec Pension Plans enacted at the same time allow for the payment of pensions to begin as early as age 60 and for pension-splitting on retirement to spouses in intact unions. In addition, the plans' disability benefits have been improved, the eligibility criteria have been relaxed, and survivor benefits continue after remarriage. Amendments to the Federal Pension Benefits Standards Act, which covers private pensions accruing to employees under federal jurisdiction (about 5 percent of the labour force), also became effective on i January 1987. These were designed to provide improved coverage for parttime and full-time workers, vesting and locking-in after two years of plan membership, portability, and mandatory survivor benefits, along with provisions for equal pensions for men and women retiring under identical circumstances, and for the splitting of pension credits and benefits between spouses upon marriage breakdown. Deliberate government measures to reduce the poverty of senior women introduced since the publication of the Royal Commission's report have made a big difference in their lives. The current cohort depends extensively on government pensions and has benefited substantially from their improvement. In 1987, more than half (53 percent) of the income of unattached elderly women came from OAS/ GIS and CPP/QPP, and the rate of low income for this group declined from 66 percent in 1980 to 44 percent in 1988. However, over one quarter of low-income individuals (28 percent) in 1988 were still elderly women (a total of 289,000 women). While we cannot be complacent about these figures, seniors express more concern about the services they need than about income. And senior Canadians having endured harsher, more insecure pasts, they tend to express more life satisfaction than younger cohorts.

49 State Initiatives

Notwithstanding these necessary improvements, and for reasons outside the scope of the CPP, pension coverage and adequacy for women remains problematic, reflecting their past work histories and low earnings. The National Council of Welfare reports that in June 1989, 57 percent of the female CPP pensioners aged 65 to 69 were receiving retirement benefits, compared with 96 percent of men. And women's lower earnings produced CPP retirement pensions of $3,120 a year, on average, compared with an average of $5,340 for men.42 As can be seen, changes in pensions did not come about in one fell swoop. They required altered visions regarding entitlements and protracted negotiations. Still outstanding is the issue of changes in survivor's benefits under the CPP to bring them into line with present and future lifestyles and needs. Coverage for housewives, a shrinking group since the publication of the RCSW'S report, remains an unresolved issue. The reduction of female poverty must be a priority for the 19905. First, we must seek to prevent and reduce poverty. How? By attempting to maintain a buoyant economy and a healthy trade balance, full production, and full employment. Second, we must mitigate the effects of poverty by a variety of measures; for those outside the labour force, mostly our current cohort of seniors, by income security and programs that enable them to participate actively in society in security and dignity; for our working population, by a mix of adequate pay, benefits, and healthy working conditions, including policies and practices that address the specific needs of women in the workplace by enabling successful combinations of work and family responsibilities and enforcing pay-equity laws; for our unemployed workers, by unemployment insurance and effective job training and job creation. Finally, we must seek to reduce the duration of poverty in the life cycles of individuals and families, and to prevent persistent, hard-core intergenerational poverty in any of our populations. THE FUTURE: AN AGENDA FOR THE

igQOS

We have entered a critical decade. We can debate whether there still is a women's agenda, or an agenda covering all public policies with gender perspectives and issues that must be addressed. Buttressed by the legal underpinnings of the Charter of Rights and Freedoms, our human-rights legislation, the Convention on the Elimination of All Forms of Discrimination Against Women, and guided by the Nairobi Forward-looking Strategies for the Advancement of Women to the Year 2000, the workplan for the 19908 may be summarized under

50 Freda L. Paltiel two headings - healthy public policy, and closing the gaps between men and women. Even in sectors where women predominate, the gaps are appalling. Women represent something like 75 percent of elementary-school teachers, but nowhere do they represent more than 12 percent of principals. In Ontario, just 6 percent of directors of education are women, despite the fact that women's participation in school boards is higher than in any other facet of public life (ranging from 25 percent to 56 percent). We must remember that CEDAW obligates the provinces equally with the federal government and that strategies for compliance must be forged within all jurisdictions. In health, to the best of my knowledge, not a single dean of medicine is female, although there are a number of assistant deans. Ninety-five percent of law-enforcement officers are men. Healthy public policy calls for a concerted action for reducing inequities, building supportive environments, and enhancing measures that favour coping and control. The gaps to be closed are the wage and income gap, the support gap, and the power gap. In this decade, the last of the twentieth century, we must concentrate on closing not only the gap between men and women, but also the gaps between Aboriginal women and all Canadian women, and between women with disabilities, immigrant, and visible-minority women, and all women. Some feminist critics assert that liberal democracy is incapable of delivering gender equality. I disagree. The strength of our liberal democracy is our pluralism. Put in the light of events in eastern Europe, liberal democracy in its pluralism coexists with or even embraces social democracy, and the existential counterpoints within and between the two are central to our social history. No, despite substantial change, there has not been a smooth spiral of progress at home or internationally, nor can gains be taken for granted. The discussion of domestic policies and programs cannot be considered separately from international developments, as these become increasingly mutually supportive. During the International Women's Decade, Canada advanced principles and shaped instruments in international fora that reflected not only our attainments but also our aspirations. Once accepted, they have the force of moral persuasion as well as of compliance obligations at home. On a personal note, I could not have done what I have managed to do within a voluntary organization, but I certainly could not have done it without such organizations. Given the constitutional divisions of powers, and the need to accelerate the closing of the gaps between women and men in the employment, education, and health sectors, much more sustained attention

51 State Initiatives

and advocacy by women's groups must be focused on the provincial, regional, and local governments, where policies and programs are forged. At the same time, there are crucial political, economic, social, and cultural issues that will never reach a state of harmony so long as the only voices heard are baritone or bass.

CHAPTER FOUR

Do State Initiatives Make a Difference ? CATHERINE FRAZEE

Presidente de la Commission des droits de la personne de 1'Ontario en 1990, 1'auteure examine les moyens que peuvent employer les groupes feminins pour influencer les decisions de 1'Etat et la formulation des politiques publiques. S'inspirant de L'art de la guerre, ecrit par Sun Tzu en Fan 500 avant j.c., elle propose certaines regies susceptibles de contribuer au succes de ces efforts. En Ontario, les initiatives du gouvernement ont eu des effets positifs, mais il faut les considerer dans le contexte des activites de divers groupes au sein de la societe. C'est 1'action conjuguee de ces groupes et de 1'Etat qui explique la reussite de ces demarches.

Nellie McClung used to tell a story about when the fire broke out in the Parliament buildings in Ottawa: The lights went off accidentally [and] darkness added greatly to the horror and danger. It became necessary for some one to reach the switch, but no one could make way through the choking, blinding smoke with any hope of return. So they formed a chain - a human chain - by clasping hands. The man who went first was sustained by the warm handclasp of the man behind him. In this way, the switch was reached in safety and many lives were, no doubt, saved. Women are going to form a chain, a greater sisterhood than the world has ever known. We are living in extraordinary times. The human chain of clasped hands has never seemed stronger - and never more threatened. In the past several years, we have seen human rights issues achieve an unparalleled prominence on the public agenda. Grand events have given us cause for hope and celebration, and affirmed the human spirit's inher-

53 Do State Initiatives Make a Difference? ent yearning for freedom and justice. And turbulent, troubling events have seared our souls and brutalized the most vulnerable members of our human family - not only across the globe but across our own country. The destiny of our nation truly seems at risk. Yet respect for the dignity and equality of every human life continues among people of good will everywhere, forming chains of sisterhood and brotherhood that help preserve a safe and civilized society. The question posed by our conference organizers is therefore a timely one - to what extent can state initiatives help make a difference in renewing and reinforcing those chains? And, I would add, what can advocates do on their own and with the state? In Canada, we are fortunate to have so many people who - both in their separate and individual capacities, and as part of organizations and special interest groups - have ensured the continued pursuit of the advocacy agenda. I want to comment on three areas: i) some of the key events in Ontario aimed at improving the status of women since 1970; 2) a personal perspective on getting items on and through the government policy agenda; and 3) what I see as the major issue now facing us in advancing women's status - the challenge of "competing interests." ONTARIO SINCE THE ROYAL COMMISSION REPORT

Over the past twenty years, the same grassroots movement that led to the establishment of the Royal Commission on the Status of Women in Canada (RCSW) influenced the development of special programs, policies, and legislation in Ontario to address the needs of women. Following the release of the Commission's report, the Ontario government undertook its own examination of women's issues. In 1973, it released a Green Paper containing a number of recommendations. This led to the creation of a cabinet portfolio with responsibility for women's issues and a Women's Division in the Ministry of Labour, as well as to the establishment of an affirmative-action program for women working for the provincial government and of a Status of Women Council. In 1983, the government established the Ontario Women's Directorate - a significant development because it recognized that the issues impacting on women far exceed labour issues. Since its creation, the directorate has actively participated in the development of a broad range of policies, legislation, and programs to advance women's movement towards full equality. During the 1985 provincial election, issues impacting on women received a lot of attention and subsequently were reflected in the New

54 Catherine Frazee

Democratic and Liberal Parties' Accord, including the introduction of pay equity legislation in 1987. The year 1987 also saw the introduction of an expanded employment equity program for the provincial public service, covering women, First Nations people, visible minorities, people with disabilities, and Francophones. And in 1990, Ontario elected a party committed to mandatory employment equity - a concept the Ontario Human Rights Commission was on record as supporting. In addition to the Women's Directorate, during the 19805 Ontario established several additional offices to address the special needs of other designated groups. These include the Office for Disabled Persons, the Race Relations Directorate, the Native Affairs Directorate, and the Office of Francophone Affairs. Established in 1962, the Ontario Human Rights Commission was the first government agency in Canada set up to deal with the protection of human rights. As the only representative on this morning's panel from a human rights commission, I would like to comment on a few of the initiatives undertaken by the Ontario Commission since 1970. The RCSW recommended that federal, provincial, and territorial human rights commissions be set up that would: - be directly responsible to Parliament, provincial legislatures, or territorial councils; - have power to investigate the administration of human rights legislation, as well as to enforce the law by laying charges and prosecuting offenders; - suggest changes in human rights legislation and promote widespread respect for human rights; and - include within the organization, for a period of seven to ten years, a division dealing specifically with the protection of women's rights. The Ontario Human Rights Commission's role and responsibilities are consistent both with both the letter and the spirit of the RCSW'S recommendations. We are an arm's length agency of the provincial government, reporting directly to the Minister of Citizenship. This independence gives the Commission both persuasive and formal enforcement authority if and when the development of laws and social policy appear to run contrary to the spirit or the letter of the law. We are responsible both for enforcing the Ontario Human Rights Code and advocating its broad and liberal interpretation. This means that we have major opportunities to give leadership in policy development and to act as an agent for promoting and advancing the cause of human rights.

55

Do State Initiatives Make a Difference?

Ontario did not establish a special division focusing on women's issues within its Human Rights Commission. This was because the province had a special office focusing on women's issues - the Ontario Women's Bureau in the Department of Labour, established in 1963. By 1970, the Bureau had established a strong reputation as an advocate for women's issues. Ontario chose to build on this existing base and in 1974, the Bureau and a new agency - the Women Crown Employees' Office, which was responsible for the government's own affirmative action program - were brought together in a special Women's Division in the Labour department. This subsequently led to the creation of the Ontario Women's Directorate in 1983. With regard to human rights as they specifically relate to women's equality and dignity, I believe that the Ontario commission has complied with the spirit of the RCSW'S recommendations. The Ontario Human Rights Code was revised several times during the 19708 and 19808. Each major revision addressed the equality rights of women. These included prohibitions against discrimination because of sex or marital status, and provisions for sanctioning special employment programs. In 1982, the Ontario Code became the first in Canada to prohibit harassment on the ground of unwelcome sexual advances or solicitation. The Ontario commission is particularly proud of the leadership it has been able to provide in the area of harassment. To the question, Have state initiatives helped women? I would reply a qualified Yes - in expanding women's range of options. There are many more options available to women, and state initiatives, developed and implemented with the cooperation of activists throughout the community, helped to create those choices. We have also seen dramatic changes in the definitions of what constitutes discrimination and inequity. For example, "sexual harassment" and "systemic discrimination" were unheard of twenty years ago. And there are new mechanisms in place to handle situations that cannot be dealt with on an individual basis. Regrettably, I cannot be so positive in terms of women's economic status. The highest average salary for women is still lower than the lowest average salary for men. And we all know the depressing data on the wage gap. However, in Ontario we have also witnessed a very significant indicator that women are continuing to move towards greater participation in Canadian society. In the 1990 provincial election, a record number of women from all parties ran for office and were elected. Our twentyfive-member provincial cabinet has eleven women ministers. Major cabinet portfolios - health, management board, citizenship, environment, energy, education, and community and social services - are held

56 Catherine Frazee

by women. Not only were record numbers of women elected, but they are women who reflect the diversity and plurality of Ontario. And that is truly exciting. GETTING ITEMS ON AND THROUGH THE POLICY AGENDA

But while one can legitimately say that state initiatives have made a difference, it is unlikely that much would have been achieved without the persistence of advocates, both inside and outside government, who seized the initiative. With imagination and effort, they shaped and crafted the result, and delivered that result to the system. Yet the increasing interrelationship between and among issues means that getting items on and through the policy agenda can be complicated at best, and also very frustrating. And believe me, that's true even for those of us who work within government agencies. Agnes Macphail observed that "the way to get things out of a government is to back them to the wall, put your hands to their throats and you will get all they have." There are, however, some other strategies that we can consider, at least as a preliminary approach! In her 29 August 1989 column in The Globe and Mail, Dr Nola Seymour, a public-policy advisor and psychotherapist, related five rules from The Art of War, written by Sun Tzu in 500 B.C. Dr Seymour observed that "the rules are universal - they sum up an approach to strategic planning that works, for anyone, but especially for any group that has few resources to tackle enormous issues." I tend to agree with Nola Seymour's assessment of the universality of Sun Tzu's rules, and so I would like to share them with you and use them as a framework for offering you some of my own perspectives on influencing the policy agenda. The first rule is: "Advance when you can, retreat when you can't. A small group that wants to make ... social or organizational change can't afford to sit around and consume its resources. It must be out advancing and making a difference somewhere. To a fighting force, inactivity is the same as losing." Nola Seymour observes that this is akin to the philosophy that any enterprise not expanding is in decline. "To someone who wants something done, the strategy is simple: make a reconnaissance and, once you know the lay of the land, move." I think that in influencing the policy agendas of governments - from inside or outside the "system" - we must develop excellent reconnaissance skills. For example, it's important for advocates to get to know the civil servants working on the issues and to listen to their perceptions of how particular issues will move through the policy development process. It's also es-

57 Do State Initiatives Make a Difference?

sential to understand the distinct roles of politicians, political staff, and civil servants, and to know whom you should be talking with, and when. Simply put: policy is made by politicians. Political staff provide political advice. Civil servants put forward options - and one is often surprised at the breadth of options presented - and ensure that the politicians have the information they need in order to make a decision. In my observation, people tend to underestimate the vast amount of information that is readily available from governments - either free or at a fairly reasonable cost - although regrettably not always in a format that is readily accessible to all citizens. A lot of information - about structures, decision-making processes, and related issues - is in the heads of program and policy staff. In my experience, the vast majority of these staff are very willing to share what they know, quite apart from any issue of privileged information or constraints of confidentiality. Advocacy reconnaissance also involves determining which government departments have an interest in a particular issue and how that interaction may affect decisions. For example, in Ontario, the ministries of Citizenship, Skills Development, and Transportation, the special offices, the Human Resources Secretariat, and the Ontario Human Rights Commission might all be involved in a policy discussion on employment equity. For advocates within government departments, the same approach applies. It's essential to understand your own organization's environment, to know the major policy issues going on within the department and at the corporate level. Don't be a one-issue person. Be aware of other key issues, and be able to make the connections. By understanding our own environment, both internal and external, we will have a better sense of when and how quickly to move. Returning to Sun Tzu's rules, the second is: "Never fight a battle you know you will lose. If you have few resources, you can't afford to waste them. The psychological cost of a loss can be devastating to morale. Soldiers may march on their stomachs, but they fight for a vision. When people lose hope, they fall away and join the other side or simply give up. It is not necessary to win so much as it is necessary not to be seen to have lost." In working for social change, the question of what constitutes "winning" and "losing" is particularly important. Risk-taking is part of the advocate's role, and not being certain or even able to win is not, in and of itself, a reason not to act. Fighting a battle that seems like a lost cause may in fact be a key tactic in winning the war. For example, advocates lobbied for a decade and a half in Ontario for pay equity, and certainly it seemed a lost cause to many groups, even within the women's movement itself. Yet the cumulative total of all these efforts

58 Catherine Frazee

ultimately convinced enough people of the ultimate "rightness" of the position. The Ontario Human Rights Commission's mission is to shape a province free from discrimination. In so doing, we may be required to take on and pursue cases we can't win. Our success in working towards achieving our mission requires that we be judged not only by the cases we win, but sometimes by those we allow ourselves to risk losing. When taking on issues that may result in a perceived loss, it's especially important to communicate with our constituencies - clearly and directly - about the reasons for going forward, and what constitutes winning. At the same time, there is certainly merit in picking the issues that have the greatest chance of success at any particular point in time. Again, this is where the advocate's reconnaissance skills become so important - knowing what's going on, within governments and with other advocacy groups, and knowing when to push a little, or a lot. I think this knowing when to move is one of the reasons that discussions about the specific barriers facing women with disabilities have become more prominent on the policy agenda over the past three to four years. Groups like DAWN - the Disabled Women's Network - lobbied other groups and the media to increase understanding of the issues, particularly those associated with the "Eve" case. Their reconnaissance enabled them to seize the initiative and expand society's definition of what constitutes discriminatory treatment. The representation at this conference reflects government, academia, and people involved at the grassroots level of advocacy. If we are to achieve new ground for women's equality, it's essential to involve a much broader constituency of interest. We need to encourage more people to participate in the change process and to position change in a way that gains the support of other sectors. For example, the advocate must guard against only wanting to be the critic and taking pleasure in the fact that others are not getting it "right." There are people of good will in many sectors who are strongly committed to the values of fairness and equality that we cherish. We need to seek them out and to value them. The third rule is: "Always put the doors back on their hinges." In The Art of War, this referred to the practice of soldiers removing doors from their hinges and propping them on bricks to use as beds. It apparently drove the villagers crazy to have to pick up after the soldiers left. Nola Seymour interpreted this as the need to respect those we work with neither expect gratitude nor take anything or anyone for granted. I'd say that in working with and within government, nothing is more frustrating or annoying than not knowing what happened to one's input. Inside and outside government, we are frequently asked to provide

59 D° State Initiatives Make a Difference?

comments on proposals, answer surveys, attend focus groups, and submit briefs, frequently on very short notice. And far too often, we never hear the results. It's the simplest of courtesies to get back to those who helped us out with information on what happened. "Putting the doors back on their hinges" also means respecting the boundaries and constraints within which others have to work. There are many roles to play in advancing the advocacy agenda. A socialchange agent who has chosen to work "within the system" may be just as disappointed with a political decision as the member of an advocacy group and probably feels the pain just as acutely, but is not free to express personal views. Community advocates also have boundaries within which they must work. Sun Tzu's fourth rule is: "Always leave the village better than ... you found it." Be remembered for something positive, tangible, and welcome. Again, quoting Nola Seymour: "One of the more important realities for those who want to make a difference is that people don't believe rhetoric for very long. Without a concrete reason for abandoning the status quo, they won't bother to switch their allegiance. If they can see the difference, they will support you long after you've gone." I tend to think of this rule in the context of a practical example related to employment equity. Many advocates are uncomfortable in arguing the "business case" for employment equity. Yet, using the business case in no way diminishes the social justice argument, and the business case is compelling. The demographics are there. Effective employmentequity programs are crucial to Canada's competitive position. The private sector simply can't afford to discriminate. Let's not be hesitant to make that point clearly. The fifth rule is: "Always leave the local people in charge." Small bands of rebels couldn't afford to leave any soldiers behind to guard their rear and protect any territory they had taken. To be successful, they had to rely on the local people to defend them. By the same token, agents of change must leave the power in the hands of the participants. Lasting change depends upon a fundamental belief in working with people, not upon forcing change on them. Like many advocates, I find myself saying, "Please God, give me patience. But hurry!" Notwithstanding our impatience, we achieve change through people - people who may feel threatened and frightened when they see the world they know disappearing. I am not for a moment suggesting that this means we should be any less rigorous as change agents. It does mean listening. Just because people have questions or concerns, it doesn't necessarily mean they have locked into opposition. And even when questions do indicate bias or prejudice, it's important to acknowledge and deal with those words and feelings,

6o Catherine Frazee

because they don't go away on their own: they fester and ultimately break out as backlash. You will have noticed that in adding my own perspectives to Sun Tzu's rules, I have commented on the importance of communications. This has prompted me to be presumptuous enough to add a sixth rule: "Be a good communicator." In advancing the policy agenda, we need to develop dialogue, discussion, and consensus-building skills. As well as presenting our own case effectively, we need to be good listeners what Madam Justice Bertha Wilson describes as that "special ability to listen with connection ... to listen for intent as well as content, and to listen with respect." In quoting Sun Tzu's rules, Nola Seymour writes that some people may be uncomfortable with them because of their warfare origin. However, she wisely reminds us that the essence of Sun Tzu's teaching is that the supreme art of war is to avoid engaging the enemy in battle - that is, to win without fighting. Having said that, I certainly am not advocating that we be conciliatory at all costs. Confrontation is sometimes the only way to get someone's attention. However, I think the more issues we are able to resolve without confrontation the better, because it saves physical and emotional resources. And confrontation is always available as an option if other strategies aren't getting results. But whether we engage in battle or in artful manoeuvring, let us be certain that it is the opposition, and not ourselves, that we confront. COMPETING

INTERESTS

"Winning without fighting," however, reflects what must be our goal in addressing the challenge of competing interests - the major issue, I believe, facing advocates for women's equality today. In commenting on this crucial issue, I want to do so in the context of some of the philosophical issues that one group of advocates for change, the commissioners and staff of the Ontario Human Rights Commission, are grappling with. In examining the issue of whether state initiatives make a difference, the question now before us is, Will state initiatives continue to be there for women? Certainly, there is a growing and troubling perception that women have "made it" and that there are other groups who are more needy and deserving of public resources. Yet on two key fronts - income and personal safety - women's status has not advanced. The wage gap is shrinking at a glacial pace, and violence against women is escalating at an alarming rate, both in severity and frequency. In spite of this, the pressure for governments to move resources away from

6i

Do State Initiatives Make a Difference?

women is there. Certainly, we are seeing a growing criticism of special employment-equity programs for women. Let me say at the outset that equity and human rights are not something that we compete for. That's simply not on. However, in looking at so-called "competing interests," we need to consider two issues. First, how can women develop mechanisms to merge their agendas with those of other groups without losing their individuality? Second, how should governments respond? What form should their interventions take? In the 19905, the Ontario Human Rights Commission finds itself very much grappling with competing issues. In doing so, the first step we have taken is to determine that, as a commission, values - and not pressures - must govern our actions. Our values are credibility, accessibility, effectiveness, and progressiveness. But being driven by values brings us to a different set of state initiatives than pressures would. For example, we have limited resources. Where do we put them when there are competing interests? Do we respond to the pressure of a wellorganized, politically sophisticated advocacy group to support a potentially precedent-setting case? Or do we seek out opportunities for advocacy and reform on behalf of those who aren't able to champion their own cause, because they may not be aware that they have a cause? Do we put resources into equality rights for people with disabilities, because that represents our greatest caseload? Or into women's equality rights, because so many women are doubly disadvantaged? Or into the rights of persons who are gay or lesbian, because of the appalling degree to which they are marginalized and oppressed, and because of the need for a champion in developing jurisprudence in this area? And what about race relations issues? I have been widely and correctly quoted as saying that Canadians tend to be more fearful of the word "racism" than of the reality, as if the word is just too blunt for us. I do believe that we have to start scrutinizing more closely and using strong words and strong actions to address the depth and intensity of the pain of racism and the problems that cause it. I suggest that to hold the ground we've gained and to ensure that no group's issues will be overlooked, we need to consider more broadbased coalitions of interest groups - coalitions that focus on the war, not the battles, that in fact determine what the "war" is and how we'll know when it's won. Such broad-based coalitions would set overall goals, based on what are immediate priorities and what can be sacrificed, and for how long. These will be hard decisions to make, especially when so many have sacrificed so much for so long. Yet I fear that if we don't make these decisions ourselves, others, who are driven by different agendas, will make them for us.

6s Catherine Frazee

In the United States, the Consortium for People with Disabilities represents one of the most effective coalitions I've ever seen. This coalition effectively lobbied for passage of the Americans with Disabilities Act. It represents as diverse a group of interests as you'll probably ever find: from the American Psychiatric Association to the Association of Junior Leagues, from the AIDS Action Council to the Church of the Brethren. The groups in the coalition set aside their differences to get this law passed. You just can't beat that kind of collective action, and I truly believe it's the sort of solidarity and collective action that we must pursue here in Canada. I cannot address the issue of competing interests without commenting on our need to confront the perception of competing interests within the women's movement itself. We cannot hope to be effective in merging our agendas with those of other groups if we are at odds among ourselves. Women's issues are much more complex than they were twenty years ago. To deal with them, we need to draw on the cultural, linguistic, and socioeconomic diversity of all women who are oppressed. Certainly, it will not be very productive to get into discussions of which pain - racism or sexism or homophobia - is the greater. Pain inflicted on the human spirit is just that - pain. What I do believe is productive is that we must, as women, broaden our perspectives and be more inclusive in developing strategies that will address and deal with discrimination wherever it is found. Obviously, we aren't all going to think alike — nor should we. And just because we are a member of one target group, it doesn't mean that we necessarily appreciate the issues faced by other groups. So all of us need to hone our "environmental scanning" skills, to be aware of our own biases, and to be sensitive to the implications of the choices we make. We can begin by reaching out to ensure that the women's movement represents the plurality of the community, including those groups that don't enjoy broad public support - the doubly and triply disadvantaged, persons who are homeless, in conflict with the law, institutionalized, and isolated. We can also share our knowledge. In Canada, women have shown leadership in the fight for equality rights. We've teamed up a lot Over the past two decades. We know a lot of things that do work, as well as some things that don't, and we can help others avoid the mistakes we've made along the way. What form should government interventions take? Obviously, governments can provide resources - not only financial resources but also assistance to help advocates to become more effective as change agents, through training and education in such areas as project management and the processes of government. Governments can also test

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Do State Initiatives Make a Difference?

out concepts like new and more creative approaches to policy development and decision-making. They must certainly set an example, as employers and as leaders, in advocating social change. What governments should not do is attempt to splinter coalitions. That would be quite dangerous and will simply not be tolerated. Innu Chief John Kelly presents a challenge to all of us: You may not share my spiritual anguish as I see the earth ravaged by the strangers, but you can no longer escape my fate as the soil turns barren and the rivers poison. Much against my will, and probably against yours, time and circumstances have put us in the same circle. And so I come not to plead with you to save me from the monstrous stranger ... I come to inform you that my danger is your danger, and my genocide is your genocide.

His words resonate beyond the particular context of the global ecology. They provide a compelling metaphor for a social and cultural environment threatened by the monstrous strangers of intolerance, violence, degradation, and disrespect. They are an invocation to all of us to active solidarity and shared responsibility. Time and circumstances have indeed put us in the same circle. Respect for the dignity of every human life is the civilizing centre of that circle. It is our foundation and the moral imperative to which each of us is obliged. Today, among those who continue to believe in a vision of equity, dignity, and respect for all, we observe the formation of chains of sisterhood and brotherhood inching towards that vision. It is my view that the state does have a role, a role that is best characterized as one of education and empowerment, to support and reinforce those living chains.

CHAPTER FIVE

Patriarchy and Paternalism: The Legacy of the Canadian State for First Nations Women M A R Y E L L E N TU R P E L- L A F O N D

l

En tant que femme des Premieres Nations, la reaction de Mary Ellen TurpelLafond a la lecture du rapport de la Commission royale a ete de se sentir alienee et exclue. Les traditions des Premieres Nations reposent non pas sur une aspiration a 1'egalite des hommes et des femmes mais plutot sur une vision des responsabilites des personnes des deux sexes envers leur communaute. Par ailleurs, dit-elle, il faut contester le caractere patriarcal et paternaliste des rapports de 1'Etat canadien avec les Premieres Nations. The woman is the foundation on which nations are built. She is the heart of her nation. If her heart is strong and her mind is clear then the nation is strong and knows its purpose. The woman is the centre of everything. Art Solomon, Ojibway Elder2

I welcome this opportunity to share my perspective and reflections on the relationship between First Nations women and the Canadian state on the occasion of the twentieth anniversary of the report of the Royal Commission on the Status of Women in Canada. As a First Nations woman and as a person who was not involved in the Commission's work, I have found it interesting, yet often distressing (from a First Nations viewpoint), to review the Commission's report and to reflect on the implications of its mandate for First Nations women. In considering the report, I have focused on the role, either real or potential, of the Canadian state in bringing about meaningful social change for First Nations women. I should clarify at the outset that what I interpret by "state" is a complex set of associations that I certainly do not accept as definitive of so-

65 Patriarchy and Paternalism

cial reality or as politically legitimate. Indeed, I find the theoretical literature on the state both anti-feminist in its abstract conceptualism, and offensive in that it is constructed through what I would suggest is a male gaze.3 While there are 171 states in the world, there are over 4,000 nations, or cultural collectivities.4 I tend to look at the world through a cultural grid, focusing less on the state for analytical purposes (especially in terms of legal systems) and more on the cultural communities within and frequently beyond the parameters of the state. The "state" is often employed synonymously with government or official bureaucratic actors and institutions. This is not to say that the state or nation cannot be reconceptualized, but that what now exists is severely limited. I will address the role of the state in this sense in bringing about change for First Nations women, reserving for a later exploration the broader concerns that I have with the political legitimacy of that concept. I will share my views on the Commission's mandate, then discuss more generally the role of the state in relation to the lives of First Nations women. As set out in 1967, the Commission's terms of reference instructed the commissioners to "enquire into the status of women in Canada to ensure for women equal opportunities with men in all aspects of Canadian society."5 This mandate is peppered throughout the commissioners' findings. I had an immediate reaction to this mandate and would like to explain why it struck me as inappropriate for First Nations women. In relating the concerns I have about this mandate, I hope to connect my personal recoiling at the Commission's mandate to a set of problems that Canadian state actors present for First Nations women. I should indicate to you straightaway that I believe that the position of First Nations women has not changed significantly since the Commission released its report in 1970. In fact, I would suggest that while superficial or formal discrimination against Indian women has been eliminated from the Indian Act,6 First Nations women in Canada have had to struggle to maintain their identities despite constant incursions by the Canadian state.7 I have chosen not to focus on the Indian Act in this paper for several reasons, not the least of which is the web of racism and offensive legal fictions that is central to a proper dissection of that legislation. To talk about the Indian Act is an overwhelming personal experience; it is like trying to untie hundreds of tangled knots that were created by someone else. The legislative language that needs to be deconstructed in that exercise is so painful, racist, and self-denying for a First Nations person that I will avoid that project here. Just to ponder the notion of a human being as "non-status" (a consequential cate-

66

Mary Ellen Turpel-Lafond

gory in the Indian Act) is offensive in the extreme. Let me simply reiterate what I have written elsewhere about the 1985 amendments to the Indian Act Bill C~31 [the 1985 Indian Act amendment] ... was an attempt to eliminate sexual and racial discrimination from the Indian Act. Sexual (i.e., gender-based) discrimination under the Act had plagued Canadian governments for decades. Eliminating it required tampering with a piece of legislation fundamentally unacceptable and racially discriminatory throughout. Attempts to reform it, even in an apparently commendable direction, were destined to fail. Defining who is and who is not 'Indian' (a misnomer itself) is a function which no nonAboriginal government can discharge ethically, let alone efficiently. The recent amendments are testimony to this.8

While the Commission's report dealt with the issue of gender discrimination in the Indian Act,9 it did not deal with the overall culturally discriminatory character of the legislation in creating the fictitious legal category of "Indian." Before proceeding, I must at least offer some critical comments on the concept of "Indian," as it is defined by the federal government in the Indian Act, for those unfamiliar with the political and terminological conflict in this area. This expression, "Indian," is an alien one. It is a term imposed by the colonial governments. It is not a First Nations term. First Nations people, who have their own words for themselves in their various languages. We have names for our peoples, and for our territories. The word "Indian" denies and effaces the diversity of our peoples. Our peoples are culturally distinct and linguistically diverse. We are not "Indians." One must remember that there are many distinct indigenous peoples in Canada; there is no singular category named "Indian." We have been "Indianized" or classified by the government for administrative purposes. We are not a monolithic or homogeneous "race." We have been "racialized" as minorities by the state, and that is why equality-seeking has to be properly contextualized. As the many distinct cultures, languages, and peoples who have always inhabited Canada, we believe we were given the gift of this part of the Earth we call Turtle Island, and the responsibility to its stewards. Unlike the European settlers who viewed this continent as land that existed for their people, we believe that as people we exist for the land. The land is not here at our disposal; we are here for it. This belief drives the consciousness of all First Nations peoples. We are here with a primary responsibility: to learn from, and respect, this great gift of the Earth, and to make a life here that is harmonious, with its blessings and cycles.

67 Patriarchy and Paternalism

I will use the expression "First Nations" because I feel it more appropriately describes the original people of the territory now known as Canada. It is an English expression, chosen for perhaps obvious, yet important, political reasons. In addition to the First Nations, there are peoples called Metis and Inuit who are also indigenous to this territory. My comments are restricted to a First Nations perspective.10 I should be entirely honest in saying that my perspective is indeed my perspective, based on my own cultural and familial experiences. I have struggled to develop and understand my perspective as a First Nations woman given my mixed - Cree and English - ancestry. This has driven me to reflect on what it is that is different about my First Nations experiences from my non-Aboriginal experiences in the world, and on how these relate, or fail to relate, to each other. Nevertheless, I neither claim nor attempt to speak for all First Nations women. In fact, there is really no such thing as having the complete or final word when one is part of a community driven by the dialogue of the oral tradition. We have a strong reaction of not kowtowing to academic "experts" because credentialed people are not those who are seen to be worthy of respect in our communities. Experience means more than degrees earned through formal, unquestioning, institutional education. One speaks only as another voice in an ongoing cycle of conversation. It is only because I am a professor or a lawyer who writes articles that I get heard: my words should not be construed as those of an expert or authority, chosen to represent an entire class, culture, or gender. That would undermine the voice that I offer. My reflections are the product of a struggle to understand an agenda set by someone else. After all, that is the very nature of thinking for those who have been colonized: unpacking a context you've not participated in constructing. REFLECTIONS ON THE ROYAL COMMISSION'S REPORT: EQUALITY IS NOT OUR STARTING POINT The underlying thesis behind the mandate given to the Commission in 1967 was a commitment to ensure that women enjoy equal opportunities with men in Canadian society. The central idea in this thesis, while arguably appropriate and supportable for non-Aboriginal women in Canada, is inappropriate conceptually and culturally for First Nations women. First Nations communities, and in particular the communities of my heredity, the Cree community, are ones that do not have a prevailing ethic of equal opportunity for men and women in this sense. It is important in the Cree community to understand the responsibilities of

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women and of men to the community. Equality is not the most important political or social concept, as it is in industrialized society. Other First Nations people have the same attitude towards equality.l l Skonaganleh: ra, a Mohawk woman, explains her perspective as follows: I don't want equality. I want to go back to where women, in aboriginal communities, were complete, where they were beautiful, where they were treated as more than equal - where man was helper and woman was the centre of that environment, that community. So, while I suppose equality is a nice thing and while I suppose we can never go back all the way, I want to make an effort at going back to at least respecting the role that women played in communities.12

Osennontion, another Mohawk woman, adds: To me, when these women, who call themselves 'feminist' or get called 'feminist', talk about equality, they mean sameness. They appear to want to be the same as a man. They want to be treated the same as a man, make the same money as a man ... and, they consider all women, regardless of origin, to be the same, to share the same concerns. I, for one, maintain that aboriginal women are different, as are the women who are burdened with such labels as immigrant women, or visible minority women. I certainly do not want to be a 'man'! 13

Equality is simply not the central organizing political principle in our communities. It is frequently seen by our Elders as a suspiciously selfish notion, as individualistic and alienating from others in the community. It is incongruous to apply this notion to our communities without appreciating the unique problems we face today against the cultural backdrop of our history. We are committed to what would be termed a "communitarian" notion of responsibilities to our peoples, as learned through traditional teachings and our life experiences. I do not see this communitarian notion as translating into equality as it is conventionally understood. In this regard, I should note that in their traditional teachings, our Cree Elders tell us that Cree women are at the centre of the Circle of Life. While you may think of this as a metaphor, it is in fact an important reality in terms of how one perceives the world and how authority is structured in our communities. It is women who give birth, in both the physical and the spiritual sense, to the social, political, and cultural life of the community. It is upon women that the focus of the community has historically been placed, and it was, not surprisingly, against women that a history of legislative discrimination was directed by the Canadian state. Our communities do not have a cultural or social his-

6g Patriarchy and Paternalism

tory of disentitlement of women from political or productive life. This is probably the most important point for feminists to grasp in order to appreciate how state-imposed gender discrimination uniquely affected First Nations women.14 I have found that it is difficult for many feminists to accept that patriarchy was not universal in origin, even if it is predominant today. It is commonly known that the future of our nations depends upon the strength of our women. We know that, as the proverb suggests, a nation is not conquered until the hearts of its women are on the ground. First Nations women have always been the hearts of our communities. This is different than equality with men. Presuming equality is the prime feminist objective, why would First Nations women want to be like you? Women are at the centre. We are the keepers of the culture, the educators, the ones who must instruct the children to respect the Earth, and the ones who ensure that our leaders are remembering and "walking" with their responsibilities demonstrably in mind. Because of the special position of Cree women, the impact of discrimination by the Canadian state through the Indian Act and other initiatives has been profound. Gender discrimination was cleverly directed (in a Machiavellian sense) against First Nations women because the legislators recognized that if they could assimilate women, First Nations peoples would be most easily and effectively assimilated. In attempting to assimilate women, the state introduced the norm of discrimination on the basis of sex: it was forcibly exported from your culture to our culture, where it has taken root. Fortunately, we have resisted the attempt to assimilate the First Nations, although we now face a situation in which we must fight against patriarchy both inside and outside our communities. The Indian Act has had the continued effect of dividing our communities, dividing our families, dividing our homes. It has broken down our matriarchal tribal support network.15 A First Nations woman cannot necessarily look to her mother, grandmother, or older aunties to help her because she may have been forced to leave the community through discrimination. Moreover, she may now have trouble reconnecting because of her experiences in a foreign culture, because poverty has led her to equate being a First Nations person with being worthless, and because of lost self-esteem due to racism commonly experienced outside the community. She may also be excluded because her Indian Art-elected government will not let her return - because First Nations men have been socialized to believe women should be subject to patriarchy. Our family structures have been systematically undermined by the Canadian state in every way imaginable - forced education at denominational residential schools, imposed male-dominated political struc-

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tures, gender discrimination in determining who is to be recognized as an "Indian", and the ongoing removal of First Nations children by child-welfare authorities. It is difficult for us to look to this state for any change when its presence has been synonymous with a painful experience of colonialism. We have had to struggle against these state-imposed or state-sanctioned initiatives. At the same time, we have had to react to, and struggle with, the internal imprint of state-enforced patriarchy on our men and on our political structures.16 Many First Nations men have lost touch with their sense of responsibility to women. They have been taught that patriarchy is the ideology of the civilized, and they have tried to act accordingly. However, this cannot mean that we should abandon our men or strive to be equal to those who have adopted (by choice or socialization) a patriarchal view of their own superiority. They too have been abused and oppressed by the Canadian state, and we must put teir experiences in context so they can be dealt with too. Some Aboriginal leaders now believe that it is a sign of advancement not to have women involved in political discussions because, after all, that is the lesson they have learned by observing how the Canadian state operates. Women are far outnumbered as chiefs or band councillors, or in other representative positions in Aboriginal organizations. Women are often relegated to a "private" sphere, while men are public actors. This is a great community challenge for us. However, this challenge is not synonymous with the challenge of equal opportunity with men. As Osennontion shares: In addition to all of the responsibilities ... perhaps the most daunting for woman, is her responsibility for the men - how they conduct themselves, how they behave, how they treat her. She has to remind them of their responsibilities and she has to know when and how to correct them when they stray from those. At the beginning, when the 'others' first came here, we held our rightful positions in our societies and held the respect due us by the men, because that's the way things were then, when we were following our ways. At that time, the European woman was considered an appendage to her husband, his possession. Contact with that European male and the imposition of his ways on our people, resulted in our being assimilated into those ways. We forgot our women's responsibilities and the men forgot theirs.17

Despite the imposition of patriarchy on our communities, our teachings still instruct us that the responsibility of men is, first and foremost, to be the woman's helper, to be the supporter of women (not in an economic sense of division of labour), because this means being the

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supporter of the people. A commitment to this role in our communities is not translatable into the world of equal opportunity of women with men. These are different paths, different conceptions of cultural and gender identity, that we are attempting to "walk" ("walk" means to follow or exemplify). Yet these paths are not rigid, not defined exclusively by tradition or the contemporary experience of sexism. It is essential that you separate two concepts that are in the foreground here so as not to be confused. On the one hand, it is important to understand the position that First Nations women occupy both historically and in the real contemporary sense, in some of our communities, particularly those which are matriarchal, and to appreciate how this position was attacked by the Canadian state.18 On the other hand, it is essential not to confuse First Nations women's suppressed status as a result of state-imposed legal definitions and institutional structures in the Indian Act, with a reaction translatable into a desire to have what non-native women or men have in this society. The former is patriarchy, the latter is paternalism. Both were imposed upon us as communities and as individuals. We do not want continued patriarchy nor do we want paternalistic prescriptions for our future paths. We want to extricate ourselves from both of these debilitating forces. At the same time, it is wholly distracting and irresponsible to place the blame for First Nations women's experiences at the feet of First Nations men. Yet, neither can we exonerate them today when they are shown the context yet decide to ignore it and embrace learned patriarchy. From our perspective, just as there are a variety of First Nations peoples, so too are there a variety of cultural perspectives on men and women in our teachings. The perspective of First Nations women is one that does not enable one to look at equal opportunity without looking at the larger political environment for our beliefs, our existence within (or at the margins of) Canadian society. In other words, before we can consider these debates about gender equality, what about our claims to cultural equality? Before imposing upon us the logic of gender equality (with white men), what about ensuring for our cultures and political systems equal legitimacy with the Anglo-Canadian cultural perspective that dominates the Canadian state? In a speech to the conference on Women and the Canadian State, the Hon. Mary Collins, Minister Responsible for the Status of Women and the Association of National Defence, suggested that women must work to eliminate the "culture of violence" by men against women. In this regard, she was referring specifically to domestic violence. To First Nations people, the expressions "culture of violence" and "domestic violence" not only have their customary connotation of violence by men against women but also mean domestic (that is, Canadian state) vio-

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lence against the First Nations. A "culture of violence" also conjures up, for a First Nations person, the image of a dominant Canadian culture that tolerates and even sanctions state violence against First Nations peoples. To have lived through the summer of 1990, with the spectacle of police and army intervention in Mohawk communities (arguably with the full complicity of the federal government) is to have a real sense of the other meaning of "domestic violence." It is violence against people, not against just women or men. What violence has this state done to the First Nations? More importantly for the feminist movement, is this violence connected to the culture of violence that men exhibit towards women? Can a state that uses violence in this way preach about eliminating violence in the home?19 These interpretations and concerns obviously cannot be boxed into the category of "gender." Gender as an isolated category is useful, primarily, to women who do not encounter racial, cultural, or class-based discrimination when they participate in Canadian society. Moreover, to look only to an objective of equality with men is clearly insufficient for First Nations women's struggles and continued identities because it cannot encompass our aspirations to continue as distinct, albeit dynamic, cultures. I cannot separate my gender from my culture. I am not a woman at some times and a Cree at others. I am both, because both are intertwined in the way I experience and understand the world.20 It is only for the purpose of preparing papers like this one that, in trying to grasp the category of gender, I even reflect upon separating one from the other, always conscious of the artifice. My interpretation of the objective of ensuring equal opportunity with men, as expressed in the Commission's mandate, implies equal opportunity for First Nations women with non-aboriginal (so-called white) men. I would suggest that this is an inappropriate starting point because, as I have been suggesting, First Nations women have different roles and responsibilities vis-a-vis men. Moreover, I do not see it as worthwhile and worthy to aspire to, or desire, equal opportunity with white men, or with the system that they have created. The aspirations of white men in the dominant society are simply not our aspirations. We do not want to inherit their objectives and positions or to adopt their world view. To be perfectly frank, I cannot figure out why non-aboriginal women would want to do this either. Maybe I have missed something in the discussions, and I ask you to help me understand why this could be construed as what you want. I realize that your desires are quite diverse, just as the feminist movement has become heterogeneous. However, I was troubled by my participation in this conference on Women and the Canadian State because I did not hear women vigorously challenge this assumption in the Commission's mandate and

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report. I do not want to look to white men as the starting point to define an agenda or to assess our predicament. Is there somewhere else to look? I think there is another place, at least for First Nations communities. In the criteria and principles section of its report, the Commission interpreted its mandate to mean that "equality of opportunity for everyone should be the goal of Canadian society."21 In fairness to the commissioners, they stated in the report that throughout the hearings, First Nations peoples urged them not to adopt a view of their aspirations as defined by non-Aboriginal people living somewhere else in Canada (i.e., the "South"), that the aims and goals of First Nations peoples not be established by outside authorities or those who are not part of their culture.22 Unfortunately, the commissioners did not take this demand seriously enough, nor did they consider its implications in light of their mandate or in their conclusions.23 As a consequence, they were unable to understand the significance of First Nations women's different positions on equality and the set of concerns regarding the state that went beyond gender. What are the implications of the view that the goal for society is equality with (white) men? To me, being a First Nations person in Canada means being free to exist politically and culturally (these are not separate concepts), being free to understand our roles according to our own cultural and political systems and not according to a value system imposed upon us by the Indian Act for over one hundred years or to role definitions accepted in the Anglo-European culture. This means that men are not, and therefore cannot be, the measure of all things, nor are they at the pinnacle of what we are seeking as people. As noted earlier, the First Nations community of my heredity never viewed women as naturally inferior or, with a little help, equal to a certain status that men had already achieved.24 For the report to look at us with the assemblage of assumptions of the dominant society is to ignore our existence as peoples with distinct cultural viewpoints and political aspirations. It does violence to our understanding of the central role of women in our communities. Moreover, it does harm to us by marginalizing us and relegating our place somewhere outside of your conceptions of meaningful membership in Canadian society. It makes us feel that if we reject what white men have "achieved," we reject being part of this society.25 The commissioners were evidently trying to help, particularly by drawing attention to certain findings, such as those relating to poverty as a lifestyle for First Nations women in Canada.26 In this regard, it is distressing to look back on the generation that has appeared since the report and to realize that First Nations women live in the same cycle of

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poverty today that they were in twenty years ago, if not worse. Even the Supreme Court of Canada has recently pronounced that in light of the constitutional status of First Nations peoples in Canada, First Nations women living on reserves may not have (and in reality do not enjoy) protection for matrimonial property.27 At least one commissioner was genuinely concerned with the extent to which he was capable of understanding the situation of First Nations women. In a separate submission he suggested that the privations endured by [First Nations] people in many areas - health, education, standards of living - are shocking. Undoubtedly, we all feel that every means should be taken to improve conditions for this neglected group of Canadians. However, the subject is outside the Commission's terms of reference. Furthermore, the Commission is not qualified to deal with the complex problems which arise when attempting to introduce social and economic changes in cultures which are so very different from ours. Goodwill in these matters is often, and sometimes quite rightly, interpreted as a form of paternalism or as a more or less conscious attempt to destroy these cultures. I very much fear that some of the recommendations (Nos. 90-97) advanced by the Commission in this section may have been drawn up a little too hastily.28

No First Nations people sat as commissioners for this study. While the Commission's report was laudable in what it achieved for some women, it was inadequate in that it was unable to seriously consider the concerns of First Nations women's. A separate study was, and is, definitely required. However, as Paulo Freire notes, "we cannot enter the struggle as objects in order to later become subjects."29 We must not be objects in the study and objects in the solutions to our problems.30 I often feel, particularly as a law teacher interacting with materials involving First Nations peoples written by those without direct knowledge, that our problems have been studied enough, especially in the object mode of analysis. We need to turn our minds to a mutually agreed-upon framework within which to resolve our relations with the state. We no longer need to be objects, nor do we need well-intentioned paternalism or projections of what we should become. The concerns of First Nations women's were marginalized in the Commission's report. The few findings that were made regarding First Nations women lacked context or the vision of a future path for meaningful change. They were not by us, for us. They were a projection of an assessment of our needs, yet they did not acknowledge the context of the patriarchy and paternalism that acts as our shackles. Clearly, my reaction to a reading of the Commission's report has been one of disappointment. Our Elders often tell us that we need to

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"double understand." By this they mean that often we need to hear things any times (in the oral tradition) before we come to understand. We need to hear things repeatedly so we reflect on what they mean; then we can come to an understanding of what to do. Nevertheless, having to continually restate our perspective of alienation, in terms of our interaction with the feminist movement, has often produced frustrating and painful reactions. As Professor Patricia Monture-Angus has said of her encounters with the feminist movement: "The result of my involvement in the feminist movement as a First Nations woman is centred around explaining, 'I am not you' (read that as 'I am not White'). This allows that I may only define my existence in a negative way, as measured against the norm (yours and White). There is no place within the woman's movement for a First Nations woman to focus on 'I am me'."31 Perhaps that space for First Nations women to be who we are will open up in the feminist movement in the wake of a re-thinking of equality and gender. Arguably, the Commission's report, in its failure to grasp the differences that First Nations women bring to equality debates, can be a jumping-off point for the creation of that space for positive interaction. Recent literature in this area has also held out much promise for me.32 However, a basic appreciation and accommodation of different perspectives on gender equality must be part of creating that space. The Commission's report reminded me of a comment that Nitya Iyer shared in light of her observations and interaction with the feminist movement: White women have been the spokeswomen for feminism; they have created feminism in their image, an image which constructs gender as the sole basis of women's oppression, cloaked in the privileges and power attached to being White. To imply, as many White feminists have done, that the gender oppression experienced by privileged White women is the same gender oppression experienced by all women denies the reality of many women's lives. It fragments the identities of women of Color because it assigns the ways in which we do not fit the dominant model of gender to the non-gendered part of us, paradoxically diminishing the importance of gender oppression in our lives.33

Gender discrimination against First Nations women in the Indian Act is clearly more significant when juxtaposed against the cultural backdrop of First Nations history and state oppression. The Commission's report confirms to me how white men and women have constructed a concept of gender equality that denies the experience of First Nations peoples' lives and that cannot grasp the magnitude of our experience of gender/cultural/class discrimination. We need to start a discussion that does not include a preconceived notion of gender "equality." We

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need a wider dialogue on equality and an openness to other views on the roles and responsibilities of people to their communities. Perhaps on the twentieth anniversary of the report, we can identify how the feminist agenda, as defined and exemplified by this report and accepted by the feminist movement, was insensitive to First Nations women and how this problem can be met in the future. ROLE OF THE C A N A D I A N STATE WITH RESPECT TO FIRST

NATIONS WOMEN

The broader and connected issue raised by the Commission's report is the role of the Canadian state in bringing about meaningful change for women generally. In this regard, I would like to briefly share my views on the role of the Canadian state in bringing about meaningful or relevant change to the lives of First Nations women in Canada. I should note, in introducing this broader issue, that I was fascinated by the papers presented at the conference on Women and the Canadian State about the achievements women see they have made since 1970. Many papers were given which catalogued progress and which were hopeful and optimistic in tone and substance. In a sense, I was deeply saddened and discouraged in reviewing these papers because we have no such positive reminiscences to bring to the anniversary of the report. In many ways, our contribution of reflections involves sharing painful experiences and lamenting the absence of real successes.34 Particularly, I see the omnipresent need to dissect state patriarchy and paternalism, which have functioned to limit our possibilities for meaningful change. There is a quotation that I would like to relate to my perspective on the state from an essay written by Audre Lorde with which many readers will be familiar. For those who are not familiar with Audre Lorde, she is an Afro-American lesbian feminist poet interested in the structures of power and authority and in making spaces for difference and finding ways to accommodate differences. She wrote an essay called "Master's Tools" in her book Sister Outsider,^ which discusses how we begin redefining roles and relationships to make it possible to celebrate differences in society and not to repress these differences. Audre Lorde addressed the burden that is placed on women, particularly so-called "minority" women, to stretch across the gap of male ignorance and to educate men about our existence and our needs. She argues that this onus on women is an old, oppressive tool to keep the oppressed occupied with the master's concerns.36 She views this diversion of energy as a tragic repetition of racist and patriarchal thought.

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This is a provocative thesis, especially insofar as it applies to the act of also stretching across the gap of white women's ignorance, perhaps too provocative to be developed in the context of this paper. I certainly thought of Audre Lorde's thesis often in fashioning my comments on the twentieth anniversary of the Commission's report. There is an idea expressed in the quotation set out below that I view as pivotal to an understanding of the role of the Canadian state with respect to First Nations women: [For] those of us who stand outside the circle of this society's definition of acceptable women - those of us who have been forged in the crucibles of difference - those of us who are poor, who are lesbians, who are black, who are older - know that survival is not an academic skill. It is learning how to stand alone, unpopular and sometimes reviled, and how to make common cause with those others identified as outside the structures in order to define the secret world in which we can all flourish. It is learning how to take our differences and make them strengths. For the master's tools will never dismantle the master's house. They may allow us to temporarily beat him at his own game, but they will never enable us to bring about genuine change. And this fact is only threatening to those women who still define the master's house as their only source of support.^

Do you define the master's house as your only source of support? The Canadian state is the master's house for us, with all the demeaning slavery connotations of that expression intact. It is not yet our house. First Nations women cannot look to the Canadian state to change our lives because we do not see ourselves there at this time. The state has already perpetrated enough damage by telling First Nations people how we should live and who we should become. We do not see the master's house as our only source of support nor can we see it at this point as a source of meaningful change. Before we can look to the state as our house, there must be fundamental architectural changes, perhaps a completely new design. We do not want to be simply interior designers for someone else's house. Indeed, if Canada is to survive in light of the current episode in the saga of constitutional crisis, it is clear that for First Nations peoples, there must be a receptivity to creating a different house, which in turn requires a receptivity to the notion of cultural equality in the design and construction of the house. First Nations women are not interested in using the tools of white men to build our house. Why would we be interested in this? We must not spend all our time with this task, or with their tools. We need to rebuild our own houses, which have been ravaged by patriarchy and which have been weakened through paternalism. This is one important task that lays ahead for us - one that we

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have begun. However, our house also must be rebuilt with First Nations men. It cannot be done alone or it will never stand. We have lived in our own houses, our lodges, and our longhouses since time immemorial. Long before the master's house was built, we had our own house. We will live here for the rest of time as who we are. We may visit you, but we have our own houses, our own tools and processes. They deserve respect. We have lived with the painful knowledge that we cannot define our life's meaning through someone else's opportunities. Moreover, we know that we stand, as Audre Lorde says, outside the circle of society's definition of an acceptable person — namely, in this context, a white male, or these days maybe even a white, middle-class female. We are, in many ways, not acceptable to this state; that is why it has tried so desperately to mould us into its reflection, to construct an identity for us. It has only ever been able to see us as lesser versions of itself, requiring development and civilization. First Nations people do not want to strive to make ourselves acceptable to a dominant society, especially to a state that has been little more than oppressor since its deceptive creation.38 We do not want to mimic or reproduce the behaviour that has weakened our communities. To want this is to be a genuinely hopeless victim. Miraculously, we have not reached that low point. Remember that this state, which is supposed to act in a fiduciary capacity towards us, has broken its promises to us on so many occasions that we have little trust in it. A state that can easily use its police and army against the First Nations peoples, not to mention legal doctrine and institutions, is not the kind of state for us. Moreover, we do not want to bear the burden of trying to redeem that society, of trying to stretch across the gap of ignorance and greed that appears to drive it. That burden lies elsewhere. Our energies as First Nations women must be focused on being strong and steadfast in our paths, as articulated by our histories, our grandmothers, and by our adaptations to a world of not being acceptable. If you respect us, you might work for political change at a state level to allow us to freely flourish and interact by choice in the structures and institutions of Canadian society. You will support the self-determination of First Peoples. You will see that we are tired of being subject to the patriarchy and paternalism of the Canadian state. We are also weary of paternalism of the feminist movement, which fashioned an agenda based on its own concepts of gender without questioning the universality of its methods and prescriptions. If you support us, you might work to ensure that the state acts with honour and respect in its dealing with the First Nations.

CHAPTER SIX

The Canadian State and Indian Women: The Struggle for Sex Equality Under the Indian Act WENDY MOSS

L'auteure analyse la question de la discrimination en fonction du sexe telle qu'elle existe dans la Loi sur les Indiens. Meme en tenant compte des modifications apportees a la loi en 1985, celle-ci reste discriminatoire envers les femmes. En plus d'analyser les mecanismes de la discrimination actuelle, Wendy Moss explique pourquoi celle-ci persiste en examinant le contexte general des rapports entre 1'Etat canadien et les populations autochtones.

This paper will examine continuing sex discrimination in the Indian Act, as well as the act's new emphasis on race in defining Indian identity, and it will demonstrate that the use of a "blood quantum" requirement (defined by the number of Indian grandparents) - as opposed to culture or nationhood - amounts to nothing more than replacing the arbitrariness of sex discrimination (to the extent that it was removed by the 1985 amendments) with another arbitrary measure of "Indianness." Indian legal identity continues to be restricted by arbitrary limits set by the state and by non-indigenous decision-makers. From the point of view of women's rights, the task of transforming the Indian Act status entitlement system is overlain, or is diffused throughout, by an entire set of concerns relating to race, culture, political rights, and critical points of interface between indigenous and non-indigenous society in Canada. Sex discrimination, in various forms, has been a part of federal Indian legislation since 1869.' A pattern of sex discrimination respecting entitlement to registration as an Indian ("Indian status") has continued to the present, although this discrimination is far more limited in scope since the enactment of the 1985 amendments to the Indian Act

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(Bill C-3i). 2 Historically, Indian women suffered a number of legal disabilities under the Indian Act, such as lesser rights in respect to wills and estates than those enjoyed by Indian men and non-Indian women. Sex discrimination in determining Indian status has been one of the most resistant barriers to achieving sexual equality for Indian women. The following analysis will focus on one current example of sex discrimination under the act - the fact that Indian women who "married out" before 17 April 1985 (the effective date of the amendments) are at a greater legal disadvantage than Indian men who married out before that date. The 1985 amendments repealed the old entitlement provisions entirely and replaced them with a new system that has created two classes of Indian status, so to speak. A person registered as an Indian under s. 6(1) who "intermarries" and has children, can have those children registered as Indians under the act (the first class); these children, however, will be registered under s. 6(2). Persons registered under s. 6(2) who "marry out" cannot have their children recognized as Indians under the act (the second class). Those persons who trace their Indian ancestry only through the female line - and, in particular, from women who married out before 17 April 1985 - are more adversely affected by the "second-generation cut-off rule" (s. 6(2) of the current Indian Act}. This new provision, introduced in 1985 along with the amendments attempting to eliminate sex discrimination, provides for the termination of Indian status after two successive generations of intermarriage between Indians and nonIndians (as defined by the act). Section 6(2) is meant to apply prospectively in a non-discriminatory way, but its retrospective application to pre-1985 intermarriages perpetuates the sex-discriminatory effect of the earlier Indian Act. The current Indian Act is therefore said to contain "residual sex discrimination." This residual sex discrimination in respect to status entitlement consists of treating the children of women who married out before 17 April 1985 differently than those of men who married out before that date. Because of that difference in treatment, s. 6(2) has a more negative impact on the descendants of Indian women than on those of their male contemporaries in similar married circumstances. Under the old Indian Act, the children of men who had married out before 1985 were entitled to Indian status. The new system is said to protect "acquired rights," which means that all persons with Indian status under the old act are entitled to registration under s. 6(1) of the amended act (s. 6(1) (a)). Men who married out before 1985, as well as their children and their non-Indian spouses are all so entitled. Women who lost their Indian status under s. 12 ( i ) (b) of the pre1985 Indian Acfi are also entitled to registration under s. 6(1) of the

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new act (s. 6(1) (c)). So too are persons who lost Indian status directly as a result of other sex-discriminatory provisions of the pre-ig85 act, such as the "double-mother clause" (s. 12(1) (a) (iv)). Unlike non-Indian female spouses, non-Indian male spouses did not acquire Indian status under the old act, and they still do not under the 1985 amendments. Consequently, the children of these marriages can only be registered pursuant to s. 6(2). The result is that pre-ig85 intermarriages between an Indian man and a non-Indian woman are treated as marriages between two Indians for the purposes of the new act, whereas pre-ig85 marriages between Indian women and non-Indian men are treated as "intermarriages." This distinction in treatment is buried in the legal technicalities of the act, but it nevertheless has a very real impact on the day-to-day lives of indigenous people across Canada. Bill C~3i, while an improvement over the pre-ig85 situation that assigned non-Indian status to the Indian woman and her children, is still a step removed from equality of treatment between Indian men and women who married out before 17 April 1985. Another way of summarizing this particular case of residual sex discrimination is to say that the negative effect on entitlement to Indian status that results from intermarriage affects the descendants of the Indian women concerned one generation earlier than it does those of their male contemporaries. The problem of residual sex discrimination in the status entitlement provisions is compounded by the fact that it occurs in the context of a provision (s. 6(2)) that appears to be essentially concerned with race. The ig85 amendments place new emphasis on "blood quantum" in the determination of Indianness. Section 6(2) appears to equate Indianness roughly with race, by erroneously conceiving it as an arbitrary minimum of "Indian" blood. The act does not use these words, but this intent may be implied from the statutory exercise of counting the number of "Indian" grandparents as a way of defining "Indians." Under the current act, this also involves an element of sex discrimination, as explained above, and of discrimination based on descent: a person with a single Indian grandparent who married out before 17 April ig85 will have Indian status if that grandparent is male but will not have status if the grandparent is female. Alternatively, the new entitlement system may be characterized as a "status percentage" system. The Indian Act, in its various enactments, has always consisted of two sets of provisions - one establishing a "charter group" of people recognized by the federal government as "Indians"; and another setting out exclusionary rules that apply to various segments of the charter group. Traditionally, the group has not been

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strictly defined in terms of race (i.e., physiological characteristics). Douglas Sanders used the terms "charter group" and "status percentage" in some early articles that set out the various alternatives that could be used by the federal government in its quest to define "Indians."4 The 1985 amendment, in substituting a new entitlement system for the old one, has created a new charter group to which new exclusionary rules apply. The new charter group incorporates all of those previously entitled, continues to exclude some previously excluded (such as the descendants of Metis scrip-grant takers), and includes some persons previously excluded (for example, women who had lost status under s. 12(i)(b)). The primary exclusionary rule is now implicit in the operation of s. 6, and in particular of s. 6(2). As a result, a person who has one non-status parent and one parent with status cannot be registered by invoking only s. 6(2). Those who make up the charter group of Indians to whose descendants s. 6(2) will apply in the future are not treated in the same way, depending on whether they are male or female. In its prospective application, the Indian Act no longer results in the loss of Indian status for women. However, in its retrospective application to the new charter group created by s. 6, the current act does discriminate on the basis of gender. The inherent arbitrariness of a fixed rule of descent that defines a blood quantum or status percentage is compounded by the inherent arbitrariness of the discriminatory way in which the rule is currently applied. To the extent that sex discrimination was removed from the act - and it must be said that it was not eliminated completely - it has been replaced by an arbitrary descent rule that appears to have little relationship to Indian identity in either a political or an ethnocultural sense. Mary Ellen Turpel has neatly summed up the issues of race and sex that are raised by the Indian Act: Bill C-31 ... was an attempt to eliminate sexual and racial discrimination from the Indian Act. Sexual (i.e., gender-based) discrimination under the Act had plagued Canadian governments for decades. Eliminating it required tampering with a piece of legislation fundamentally unacceptable and racially discriminatory throughout. Attempts to reform it, even in an apparently commendable direction, were destined to fail. Defining who is and who is not an 'Indian' (a misnomer itself) is a function which no non-Aboriginal government can discharge ethically, let alone efficiently. The recent amendments are testimony to this.5

For those not familiar with the debate over the issue of Indian selfgovernment and the recent history of constitutional debate over "In-

83 The Canadian State and Indian Women

dian" affairs, it may seem odd that First Nations people reject federal attempts to classify a racially distinct people by descent or blood quantum. A few words of explanation may be called for. The indigenous peoples' struggle for self-determination is often generically referred to as "Indian self-government." What often seems to be missed is that indigenous claims to self-government or self-determination are not being advanced on the basis of the indigenous peoples' racial difference from the rest of the population. Rather, claims to self-determination are based on cultural distinctiveness and on a self-perception as political entities or nations distinct from the rest of Canada. The cultural and political distinctiveness of indigenous peoples happens to coincide with their racial distinctiveness, but for indigenous peoples, it is cultural and political differences that are significant and that should shape relations between indigenous and non-indigenous peoples, not physiological distinctions. The current federal practice of defining Indians in quasi-racial terms is an exercise rife with controversy and arbitrariness. Applying a universal measure to individuals of a certain race or racial descent but of diverse cultural and political backgrounds, cannot help but result in distortions of collective and individual identity. It is the federal government, not indigenous peoples, which has become preoccupied with race,6 and the reasons for that preoccupation since the enactment of Bill C~31 seem clear. The primary concern of federal and provincial governments in relation to Indians is answering the question, Who pays? Who pays for government services, such as sewer systems, social assistance, elementary and secondary education, and so forth, that are usually charged to provincial treasuries in the case of non-indigenous people? Despite the popular misconception that the majority of federal expenditures on Aboriginal affairs are devoted to extraordinary programs and services that other Canadians do not receive, the fact is that the bulk of these expenditures fall within areas such as those named above.7 In the absence of exclusive federal jurisdiction under s. 91(24) of the Constitution Act, 1867, provincial governments would cover the costs of public school education, welfare, child welfare, community infrastructure, etc., for so-called "status Indians" just as they do for non-indigenous people. Federal and provincial governments therefore have a great interest in determining whether the money for such expenditures is to come out of the federal pot or the provincial pot. In fact, the only case to reach the Supreme Court of Canada on the meaning of the word "Indians" in s. 91(24) of the Constitution Act, i86j was a reference brought by the Province of Quebec to determine financial responsibility as between the federal

84 Wendy Moss

and provincial government concerning government services for the Inuit of Northern Quebec.8 In order to limit its financial responsibility under s. 91 (24), the.federal government has included some form of arbitrary cut-off from Indian status in the entitlement and disentitlement provisions ever since the first Indian legislation was enacted in 1869. Identification issues, whether they pertain to group or individual distinctions, will always be controversial in terms of federal jurisdiction because any federally determined measure of Indianness will have to be arbitrary. A legislative cut-off point for Indianness cannot be based on cultural affiliation with any degree of exactness by outsiders, especially given the great diversity of indigenous cultures. And the dangers of attempting to define a race of people with any degree of physiological precision should be obvious to everyone. As Sanders has pointed out, the only available status systems that address the issue of intermarriage and leave the control of numbers in federal hands are: - a kinship-based system with sex discrimination (either against males or females); - blood quantum; and - status percentages.9 In the context of the pre-ig85 kinship status system, sex discrimination against women in determining the status of mixed-race families was regarded at first as natural, then as unfortunate - but always essential in the absence of some other equally effective means of limiting the size of the status Indian population in a consistent and regular manner. For example, in an article that appeared a few years before the 1974 Lavelldecision,10 Sanders rejected the combined use of patrilineal and matrilineal tribal values as a determinant and rejected arbitrary exclusions other than sex discrimination: It is suggested that sexual discrimination will probably be an inevitable part of the kinship status determination system. That appears to be the only way to avoid a distorting of the population who will have access to the reserve. If all inter-marriage situations are to result in single-status Indian families, the reserve population will expand unnaturally. If all inter-marriage situations result in single-status non-Indian families, or mixed status families who cannot live on the reserve as a unit, then the reserve population will contract unnaturally. To maintain a normal rate of population growth some middle ground must be found. Theoretically an arbitrary system could be employed where half the mixed marriages resulted in non-status families and half status families. This

85 The Canadian State and Indian Women relates rationally to the goal of population stability, but is a method no one would support. Alternatively traditional tribal patterns could be employed. If the tribe was patrilineal then the father determines status; if matrilineal, the mother determines status. This must be rejected since the impact of colonization and Indian legislation has isolated most reserves from traditional notions of descent. The easy solution is to employ one spouse uniformly to determine status. The choice of spouse made by legislators coincides (and not by accident) with established patterns of male dominance ... the rationale for choosing one spouse as the determiner of status may be to stabilize the reserve population, but the choice itself is then made on traditional male dominance grounds. One is troubled by the result, but inclined to accept the decision.11

One weakness of this analysis is that it assumes an ability, on the part of non-indigenous policy-makers and legislators, to identify correctly the traditional and contemporary values of diverse indigenous cultures. It accepts some element of arbitrariness as an inherent part of any kinship-based status system that seeks to control or maintain a "normal" rate of population growth. A concern with normal population growth, however, seems to be a decision more appropriately left to the indigenous peoples themselves. Further, even assuming the inevitability of some arbitrary exclusion measure for the statutory purpose of defining Indians and controlling their numbers, this article indicates that the policy environment of the day viewed discrimination against women as somehow more acceptable than other possible forms of arbitrary exclusion. Eventually, however, the unrelenting pressure exerted by the Indian women's lobby, the advent of the Charter of Rights and Freedoms, and other events brought a higher level of discomfort towards the use of sex discrimination as a convenient and effective tool for excluding half of the mixed-marriage family units. Another large exclusionary class was needed. Subsection 6(2) fulfils this purpose and, in the process, has retained an element of sex discrimination for the pre-ig85 population. First Nations women have clearly stated that, having opened the entitlement provisions in 1985 with the express purpose of eliminating sex discrimination, the federal government should finish the job. However, opening the discussion of sex discrimination in the context of the operation of s. 6(2) would also reopen the discussion of the underlying rationale of the contemporary entitlement and disentitlement provisions - namely, control over the federal government's financial responsibility for government services to "Indian" people. The policy, contained in Bill €-31, of retaining federal control over Indian status and of sharing power with First Nations governments only over the is-

86 Wendy Moss

sue of band membership, had as its rationale financial control. This was frankly stated by a previous government's policy document in which that option was considered: "Alternatively, the Government could allow bands to define their own membership, but continue to define status in the Indian Act. This would continue to allow the Government to have some kind of control over its expenses, for historically it has provided funding and programs only for status Indians. The Band could divide its funds any way it chooses."12 Just as importantly, reopening the debate over sex discrimination would once again force the government to take sides in the battle over gender equality within the indigenous community. The difficulties in doing so have been documented in Teressa Nahanee's paper. Consequently, there are two major disincentives to reopening discussions of sex discrimination. It is unlikely that anything short of a successful Charter challenge would overcome these two barriers to revisiting the question of sex discrimination in the Indian Act. Meanwhile, the sexdiscriminatory impact of the second-generation cut-off rule will continue, and as time passes, it will become more and more difficult for the people concerned to maintain an indigenous identity. Getting the government to recognize the issue of residual sex discrimination has not been a barrier so much as the continued belief that sex-based discrimination is inevitable to some degree. In August 1988, before a House of Commons committee, the Minister of Indian Affairs acknowledged the existence of sex discrimination in relation to the maintenance of Indian status/3 Three years earlier, before the committee charged with studying Bill C-3i, a government official explained that the discrimination between men and women married before 1985 was necessary to ensure that there was equity between women! If the first-generation children of women who married out prior to 1985 were registered pursuant to s. 6(1) like their male contemporaries, there would be a different descent rule for women depending on whether they "married out" before or after the effective date of the legislation14. This explanation fails to deal with the current inequity that exists between men, depending on when they "married out." (Three generations of intermarriage will be required for descendants of pre-i985 Indian male/non-Indian female intermarriages to lose their status, whereas in the case of post-ig85 intermarriages, only two generations will be required.) This explanation demonstrates again a tendency to choose discrimination against women over alternative forms of arbitrary exclusion. A 1988 report by the House of Commons Standing Committee on Aboriginal Affairs and Northern Development identified several issues of residual sex discrimination and made some recommendations to

8 7 The Canadian State and Indian Women

partially address them.15 Parliament was subsequently prorogued, and the obligation to respond to the Standing Committee's recommendations was considered to have terminated with it. Since that time, there have been no legislative proposals from government to deal with the issue of residual sex discrimination. By contrast, a bill was introduced in 1988 to deal with inequities in the entitlement provisions based on whether an applicant's parents were living or not. Because this amendment was clearly uncontroversial and did not threaten a major exclusionary rule, it passed quickly into legislation.16 What contributes to the controversial nature of sex discrimination issues under the Indian Act is the fact that government still appears to be concerned with the marriage bed of Indian women and men, and to complicate matters even further - has a new preoccupation with the "Indian" gene pool. No other population in Canada is subject to such intense government scrutiny of their personal lives. An obvious question is whether such interference is really necessary and unavoidable simply to exercise federal jurisdiction under s. 91(24) of the Constitution Act, 1867. The continuing mismanagement of sex and race issues under the Indian Act represents a strong argument for removing federal jurisdiction over these sensitive issues affecting individuals in the indigenous community in the most personal way and for returning control over them to the jurisdiction of indigenous governments. This would, of course, raise a number of important questions, such as how collective and individual rights would be handled under indigenous jurisdiction, but that topic falls outside the scope of this paper. From the point of view of women's rights, some modest progress has been made. It is considered somewhat less acceptable for the federal government to discriminate against Indian women on behalf of, or in place of, Indian men. However, it still appears acceptable, in the current policy environment, to sacrifice the equality rights of a certain segment of the First Nations women population in deference to Indian self-government rights not yet fully recognized by the government itself. Until constitutional reform or litigation addresses the larger issues of the sovereignty and self-government rights of indigenous peoples, and takes this discussion out of the Parliament of Canada, indigenous women affected by residual sex discrimination must look to the federal government for the protection of their right to equality before and under the law. That is, given the reality of an operating federal system of individual entitlement to Indian status, a clear issue arises about making that system conform with the values of the Charter of Rights and Freedoms. Throughout the struggle documented in this paper, indigenous women have been placed in the unenviable position of seeking sex-

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Wendy Moss

equality rights in a system that is deeply offensive to all First Nations people on other grounds - cultural, political, and racial. Many indigenous people see any exercise to modify that system without addressing the issues of race and political empowerment as bolstering or preserving longer than necessary a very unsatisfactory status quo in terms of indigenous/non-indigenous relations. On the other hand, there are some practical benefits to Indian status. However unsatisfactory the Indian Act and its system of status entitlement may be, many indigenous women do not want to sacrifice their sex-equality rights for a self-government that is not yet fully realized or recognized.

CHAPTER SEVEN

Indian Women, Sex Equality, and the Charter TERESSA ANNE NAHANEE

1

La Charte des droits et libertes peut venir au secours des femmes autochtones dans leur quete d'egalite. L'auteure invoque la cause Lavellet 1'adoption de la loi C-31 pour etayer son argument. Les victoires enregistrees par les femmes autochtones se situent dans le contexte de la reforme constitutionnelle et la Charte a. eu des effets benefiques. Elle continuera dejouer un role important dans la prevention de 1'erosion de 1'egalite des sexes dans le contexte de Fautonomie politique des peuples autochtones. Indian2 women were among the first women in Canada to benefit legislatively from the Charter of Rights and Freedoms^ contained in the Constitution.4 My purpose in presenting this paper is twofold: first, to discuss our struggle within the framework of feminist legal theory; and second, to provide an alternative theory to those legal writers who argue that the Charter should not apply to sovereign First Nations' governments - and thus to Indian women.5 The sovereign First Nations governments referred to here as those which, in the future, may be established under section 35(i) 6 of the Constitution Act, 1982.1 The paper is divided into four sections. First, I will argue that it is because of the patriarchal nature of the law and legal methods that we lost in Attorney-General of Canada v. Lavell.8 Second, I will show that our political struggle was framed in terms of collective versus individual rights because of the patriarchal nature of Indian Act and that in that sense, Bill C-gi was an Indian female victory for individual rights. Third, I will argue that our struggle for sex equality took place within the context of constitutional reform and that as Indian women we benefited directly from the Charter. Fourth, I will outline what I perceive to

go Teressa Anne Nahanee

be the future agenda to continue our struggle for sex equality. My conclusion is that as Indian women we must embrace the Charter in order to guard against an erosion of sex equality within the context of aboriginal self-government. To a certain extent, these arguments over the application of the Charter ignore our legal history, beginning with the Lavellcase. Unlike the Beothuks,9 our women were not exterminated: Indian women who married non-Indians were simply banished from their communities, barred from their families, and stripped of their legal rights as Indians. The life of an Indian in Canada is shrouded in law: the Indian Act governs an Indian's life from birth to death. In fact, the law follows the Indian into the grave by establishing the parameters of wills and estates on reserve lands. In my view, Charter writers should take into account our legal struggle, which began after the enactment of the Canadian Bill of Rights10 but before the advent of the Charter and of its section 15. One of my purposes is to outline this legal struggle. Such struggles against legal oppression, however, do not occur in a political vacuum. It is equally important to understand our political struggle. The political struggle for sex equality for Indian women was both a male/female struggle and one that pitted collectivist self-government rights against female individual rights to equality. It was the political struggle, combined with the advent of the Charter, which resulted in the passage of Bill C~31. 11 This bill amended the Indian Act12 so as to repeal sex-discriminatory provisions. As a result of its passage, no fewer than 70,000 to 90,000 men and women, boys and girls, and old and young people were added to the federal Indian registry13 and band lists.14 No one should forget that these "new Indians" now exercise their rights as Indians because the federal government believed the Indian Act violated s. 15 of the Charter. From the loss in the Lavell case at the Supreme Court of Canada to the semi-victory in the Lovelace1^ case at the United Nations Committee on Human Rights, Indian women never wavered in their battle for sex equality. They took their struggle to the international arena,16 to national meetings every year from 1971 to 1985, to feminist meetings,1"7 to Parliament/8 and finally to the streets and highways.19 The legal and political struggle was not only against an insensitive government, but also against the Indian male establishment created under the Indian Act. I would argue that the Indian Act imposed upon all First Nations communities a system of patriarchal customs and laws that had become so ingrained by 1971 that patriarchy was accepted as a "traditional trait." Some legal writers20 contend that it was the federal government alone, and not First Nations governments, that discriminated against

gi

Indian Women, Sex Equality, and the Charter

women. I would argue that as Indian women we need to remember our struggle, to document it, and to be conscious of our desire for sex equality under the rule of First Nations law developed for our communities. There are those in "Indian country"21 who deny their role in our struggle for sexual equality. The hard struggle is not over. This is not the time to be complacent, but a time to be vigilant and conscious of the place we wish to establish for ourselves within our own governments, systems, and communities. The whole concept of denial is built into the patriarchal system, and it results in the legal and social subordination of women. THE LEGAL HISTORY OF INDIAN SEX EQUALITY

Indian women lost their legal bid for sex equality in Lavell because there was no constitutional guarantee of sex equality for women in Canada. In fact, the Supreme Court of Canada did not even address the issue of sex equality or that of the impact of the Bill of Rights on sex discrimination present in the Indian Act. I think it is evident now that Jeanette Lavell not only challenged the patriarchal Indian Act, but also the patriarchal state. The whole design of that legislation was to establish a patriarchal system of laws to govern Indians and lands reserved for Indians,22 but it had been drafted in male terms to empower male Indians and disenfranchise Indian women.23 Section 12(1) (b) of the Indian Act, requiring Indian women to give up their Indian status when they married white men, was, in my view, a clear case of sex discrimination, and legally the decision against Jeanette Lavell made little sense at the time. At issue in Lavell was whether, under section 12(1) (b), it was contrary to the Bill of Rights to discriminate against Indian women on the basis of sex. Mrs Lavell claimed that s. 12(1) (b) did discriminate because not only did Indian men not lose their status when marrying a non-Indian but their wives were given the status of "registered Indians." Judge Grossberg, of the County Court, did not address the issue of sex equality but rather found Mrs Lavell to be in the same class as other Canadian married women. 24 Therefore, he concluded, there was no discrimination. To support his finding, Judge Grossberg quoted from the report of the Royal Commission on the Status of Women, which stated that Indian men and women "should enjoy the same rights and privileges in matters of marriage and property as other Canadians."25 The judge failed to note, however, that paragraph 59 of the same report called for the amendment of s. 12 (1) (b) of the Indian Act to allow Indian women to retain their Indian status and band mem-

92 Teressa Anne Nahanee bership upon marriage to a non-Indian and to be able to transmit their status to their children.26 Mrs Lavell lost her case in the County Court. At the Federal Court of Appeal,27 s. 12(1) (b) was declared inoperative as offending the Canadian Bill of Rights because it discriminated against Indian women based on sex. The court held that Indian women were discriminated against when they married non-Indians or Indian men from different bands.28 Mrs Lavell won her right to be reinstated to her band list along with her children. Upon appeal to the Supreme Court of Canada,29 however, the issue of sex equality was again disregarded and the decision of the Federal Court of Appeal was reversed, thereby restoring the decision of the County Court. In 1973, the Canadian Bill of Rights was not a constitutional instrument but stood on the books as a statute equal to other federal statutes. In coming to a conclusion in Lavell, the Supreme Court concerned itself with whether or not Parliament had acted within its jurisdiction under s. 91 (24) of the British North America Act, 1867 respecting Indians and Indian lands. The court decided that Parliament did have the authority to determine legislatively who was and was not an "Indian." In fact, the power was all-inclusive: if Parliament wished to declare 10,000 white women to be Indians even though they had no Indian blood, language, or culture, it could have done so. If Parliament wished to declare 10,000 "Indian" women to be "not Indians" for purposes of the Indian Act because they married non-Indians, it had that power. To deny that power to Parliament would be a denial of its supremacy.30 The Supreme Court held that if Indian women were to be treated the same as Indian men upon entering into interracial marriages, this must be done through plain statutory language in the Indian Act.$l Justice Abbott, in dissent, would have dismissed both appeals and held that if parliamentary supremacy32 were threatened by allowing the Bill of Rights the power to strike down offensive legislation, this was something that could be corrected by Parliament.33 Only Chief Justice Bora Laskin held that the Indian Act gave men a statutory preference that amounted to sex discrimination contrary to the Bill of Rights, adding that s. i 2 ( i ) ( b ) ought to be declared inoperative. Laskin held that simply because the Indian Act was tied to the federal power under s. 91 (24) of the Constitution Act, 1867, it did not give Parliament the power to offend the Canadian Bill of Rights. "Discriminatory treatment on the basis of race or colour or sex does not inhere in that grant of legislative power," he maintained.34 I would agree with Mary Jane Mossman that there is a certain degree of futility in using the courts to achieve sex equality for women.35 Lavell has shown that neither the language nor the law is neutral and that "both reflect and shape legal relationships in society."36 I also

93 Indian Women, Sex Equality, and the Charter

agree with Mossman that "the doctrine of precedent [is] a powerful tool for maintaining the status quo."37 The doctrine of precedent is so strong, in fact, that the Supreme Court of Canada found it necessary to distinguish its previous decision in Drybones.^ In that precedent, the Bill of Rights was used to strike down an offensive section of the Indian Acf.39 The court clearly avoided this precedent by distinguishing between race and sex equality. It found nothing offensive in Parliament discriminating on the basis of sex within a race; what is offensive is discriminating between races. The court found no precedents dealing specifically with the legal disqualification of Indian women in 1974, and, in my view, this acted against Mrs Lavell. In my view, Judge Grossberg erred in comparing married Indian women to married non-Indian women because the analogy is invalid. Indians are born with certain aboriginal, treaty, or legislative rights not enjoyed by other Canadians. These rights are tied to our history on this continent from time immemorial. In many respects, the right to live on Indian lands is analogous to the right to be a Canadian. I believe it is a valid comparison to say that Canadians do not lose their citizenship automatically upon marriage to a foreigner. Citizenship is something that must be relinquished voluntarily. The same rule should have applied to Mrs Lavell and the other 10,000 Indian women who were involuntarily deprived of their Indian status and band membership. There was no question of voluntarism. They were simply banished from their communities and families under s. 12(1) (b). Finding Indian women to be "similarly situated" with other Canadian married women, the Supreme Court found that sex equality was not even an issue in the Lavell case. The key to finding discrimination based on sex would have meant finding Indian women to be "similarly situated" with Indian men. As David Cole has argued, "the law of sex discrimination to a significant extent requires conformity: working from standards set by men, sex discrimination law demands that women present themselves as 'similarly situated' to men before they can be considered worthy of equal treatment."40 The County Court, in particular, whose decision was restored, refused to even place Mrs Lavell in the same "class" as Indian men. It is within this same class where sex discrimination occurred. Judge Grossberg mixed race and gender, and chose to see Indian women as similarly situated in the class of Canadian married women. If he had treated Indian women in the context of the treatment of Indian men, he might have seen the sex discrimination. I would argue he chose to ignore it. The Lavell decision closed the courts to Indian women and shifted our struggle to a different plane: it became a political struggle in which we sought legislative equality by amendment to the Indian Act.

94 Teressa Anne Nahanee

Before describing this political struggle, it is important, however, to consider the recourse sought in the international legal arena through the U.N. Committee on Human Rights. It was during this period that the Canadian Human Rights Commission was established, but it was barred from hearing sex discrimination cases from Indian women who lost their status. The legislation under which it was established exempted the Indian Act from its purview, primarily to ensure that cases alleging sex discrimination in marriages on Indian reserves would not be heard by the Commission. At the same time, human rights legislation emanating from the provinces was of no assistance to Indian women who had lost their Indian status. While they were like other Canadian married women, this could not assist them in having federal Indian rights restored. Such rights could only be restored by the federal government, and provincial human rights bodies could not impose their decisions upon the federal government. Indian women concluded that their efforts should be directed towards lobbying for legislative amendments and pursuing their rights before international courts. It was the provincial Human Rights Commission of New Brunswick which provided direct assistance to a Maliseet Indian, Sandra Lovelace, so that she could bring her case to the U.N. Committee on Human Rights4' under the Optional Protocol to the International Covenant on Civil and Political Rights.42 This protocol guarantees to all citizens of signatory countries the right to be heard as individuals when all other legal avenues have been exhausted domestically. All legal avenues had been either exhausted or barred to Indian women by 1979, and the U.N. Committee was their "court of last resort." Sandra Lovelace, formerly of the Tobique Indian Reserve in New Brunswick, had lost her Indian status and band membership when she married a non-Indian male in 1970. Indian women were fortunate that Canada signed the Optional Protocol in 1976 - three years before Lovelace filed her grievance. By signing the protocol, Canada guaranteed to all its citizens the international rights listed, including "the right to enjoy their own culture ... religion [and] language."43 Under article 2(1), the protocol also guaranteed sex equality, although not retrospectively. In other words, since Lovelace married in 1970, six years before Canada signed the Optional Protocol, she should have been barred from having her case heard. However, because she was still suffering from the effects of sex discrimination in 1979, the Committee on Human Rights agreed to hear her case. Even the U.N. Committee did not directly confront the issue of sex discrimination faced by Indian women in Canada under s. 12 (1) (b) of the Indian Act. It has been argued by Anne Bayefsky, writing on the Love-

95 Indian Women, Sex Equality, and the Charter

lace decision, that "there was a violation of Article 2(1) in relation to the right embodied in Article 27/'44 In other words, she says, Lovelace was discriminated against on the basis of sex, and this went largely unsaid by the U.N. Committee on Human Rights. Her suggestion seems to be that the Committee was precluded from dealing with the issue of sex discrimination because Canada was not a party to the Optional Protocol when Sandra Lovelace married outside her race in 1970. The arguments put forward by Canada in Lovelace were the same as those advanced in Lavell. Canada told the U.N. Committee that Indians did not agree on how the situation ought to be rectified, and until they reached some agreement, nothing would be done. In other words, Canada recognized that there might seem to be sex discrimination here, but it was condoned by Indians themselves. But that aside, Canada said the question of amending the Indian Act was being researched.45 Anne Bayefsky suggests in her article on Lovelace that Canada's primary concern was the high costs of giving legislative equality to Indian women. She called this government thinking sexist.46 I would argue that the government of Canada left the decision on amendments to the male Indian leadership, and this became evident in the political struggle. The Lovelace decision did advance the cause of Indian women in Canada by adding political pressure to amend s. 12(1) (b) of the Indian Act. THE POLITICAL STRUGGLE FOR INDIAN SEX EQUALITY

The political struggle for sex equality by Indian women began with Jeanette Lavell's loss in the County Court. It is hard to imagine now what it was like for some 10,000 Indian women to await the outcome of the Lavell decision. Each of these women had married outside her race; each had lost her status; and many were raising their children off Indian reserves. We know now that at least 70,000 lives depended upon the outcome of Lavell Every Indian band47 was affected because each had women who had been removed from its band list for marrying outside their race. When this young woman, Jeanette Lavell, went to court in the County District of York, she changed Indian male/female relationships across the country. She created a controversy that even today has not died down. It is Lavell's struggle, and her loss in the County Court, that resulted in the formation of the National Committee on Indian Rights for Indian Women (IRIW), with Jenny Margetts as first president. A veteran of the movement and one of our most vocal speakers against sex discrimination, Mary Two Axe Early, of Kahnawake, Quebec, began her

96 Teressa Anne Nahanee

political career at the founding meeting of this organization. No one will forget that it was Mary who said, "the dogs and horses from Montreal can be buried in a cemetery on my reserve [Kahnawake], but I can't, because I lost my Indian status." A woman in her sixties when she joined the Indian women's movement, she inspired Senator Therese Casgrain and other feminists to assist in our cause. Mary spoke with passion and she aroused interest. In the 19708, she accused parliamentarians of raping Indian women by taking away their Indian status and birthright. From 1971 to 1979, Jenny Margetts, Mary Two Axe Early, Rose Charlie, and other members of IRIW lobbied members of Parliament, ministers, premiers, and Indian leaders for sex equality. I want to mention what, in my view, was one of the most significant events leading to eventual passage of Bill C~31. This was the Indian Women's March of 1979. That summer, Indian women competed with chiefs for top billing on public and political agendas. The federal government, under Pierre Elliot Trudeau, was making an all-out effort to repatriate the Constitution Act, 1867. A large number of Canada's 575 Indian chiefs were preparing to go to London to stop patriation until Indian aboriginal and treaty rights were recognized. It became clear that the chiefs did not want the sex discrimination issue to detract from their constitutional effort. While some chiefs were willing to support legislative amendments to the Indian Act and to endorse the reinstatement of women and their children, it would have to be in the context of Indian government control. But in 1979, both the constitutional repatriation issue and the implementation of Indian self-government were unpredictable future events. The Indian women wanted sex equality immediately. The Indian Women's March was organized by a group of twentyeight Tobique women under the leadership of Sandra Lovelace and Caroline Ennis. Indian women came from across Canada - from as far away as the Yukon and British Columbia - and along with fifteen children and four white women, marched from Oka, Quebec, to Ottawa from 14 to 19 July 1979. They brought national media attention to the sex-discriminatory provisions of the Indian Act. During the march, the Minister of Indian Affairs, Jake Epp, met with the marchers in Rockland, Ontario, to discuss the sex discrimination issue and the objectives of their protest. The National Indian Brotherhood (NIB, now called the Assembly of First Nations) gave a written statement endorsing the women's request for sex equality. While the Indian Act should be amended, the NIB said Indian governments had to control how status would be acquired and lost.48 The NIB warned the women, however, that the federal government might use their protest as a distraction from constitutional reform. The marchers made it clear

97 Indian Women, Sex Equality, and the Charter

that ending sex discrimination was their top priority. "Nothing took precedence, they said, because it is our sisters, our aunts, our mothers who are affected. There is no way we can work together as long as that section stands."49 It was clear from the discussions between the NIB and the marchers that the national organization wanted the constitutional amendment to move simultaneously with any amendments to the Indian Act aimed at removing sex discrimination. On 20 July 1979, in a historic meeting between the Indian women marchers and Prime Minister Joe Clark and three of his ministers, the federal government announced it would bring in legislation to end sex discrimination. The Prime Minister said that the government "cannot wait much longer for the National Indian Brotherhood to submit amendments to the Indian Act which will end sex discrimination,"50 adding that if the NIB did not bring in amendments, the government would move its own. The Prime Minister invited the Indian women's movement representatives to assist in drafting the legislation. He asked for their cooperation and promised the government would move quickly. Within months, however, the Tory government fell, and with it disappeared this opportunity to amend the Indian Act. Political pressure to end sex discrimination against Indian women continued. In 1976, the National Committee on Indian Rights for Indian Women and the Native Women's Association of Canada had recommended using s. 4 of the Indian Act to suspend s. i2(l)(b). 5 1 Section 4 has always been part of the Indian Act and had been used by Indian bands to suspend certain sections of the act, particularly when they wished to revert to traditional forms of government. The two national Native women's groups suggested to the Standing Committee on Indian Affairs and Northern Development that s. 4 could be used to end some of the discrimination based on sex. This effort to use s. 4 was renewed by groups of Indian women, feminists, and human rights activists in 1980. It also had the support of women parliamentarians, who tabled a motion to this effect in the House of Commons on 17 July igSo.52 A week later, the minister of Indian Affairs, John Munro, agreed to suspend section 12(1) (b) when requested to do so by Indian bands.53 This move was supported by NIB president Noel Starblanket when he appeared before the Standing Committee. By 1982, sixty-five Indian bands had taken advantage of this government offer, but the resulting legal complications were such that it could be questioned whether this action was even legal.54 The approach adopted by the re-elected Liberal government was largely due to a change in the NIB'S position on legislative amendments to end sex discrimination in the Indian Act. By 1980, the NIB,

98 Teressa Anne Nahanee

under Starblanket, had radically altered its earlier position, and now insisted that there be no revisions to the Indian Act until constitutional amendments were made in favour of Indian self-government.55 International pressure, constitutional change in Canada, and this country's human rights activities in the international sphere awoke a new consciousness among cabinet ministers for sex equality in 1981. Canada became a party to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women56 in December 1981. In 1982, the Constitution Act became law, and s. 15, which was to come into force on 15 April 1985, added considerable impetus to end sex discrimination against Indian women, as it was becoming increasingly clear that this was a blemish upon Canada's international reputation.57 Whereas the Canadian state had actually solicited the support of Indian bands and organizations against Lavell in the early 19705, it now needed their support for amendments to the Indian Act to end sex discrimination in 1982. The government actually awarded a few hundred thousand dollars a year to the National Indian Brotherhood and its affiliates to design amendments to the Indian Act.58 No funds were made available to either the National Committee on Indian Rights for Indian Women or the Native Women's Association of Canada, because both organizations had non-status Indian members. Funds originated from the Department of Indian and Northern Affairs, which only funded all-Indian groups. Women who had lost their status were not considered "Indians" and were not fundable. They could not even be consulted on amendments to the Indian Act, as far as the government was concerned. This meant that the government and the minister had to consult male Indians on amendments to the Indian Act designed to end sex discrimination against female Indians. In an attempt to persuade the Indian male leadership to support the amendment of the Indian Act, the government decided to give the chiefs what they had been asking for during the 19705 - a study on Indian self-government. The government gave a reference on this subject to the Standing Committee on Indian Affairs and Northern Development,59 with one significant rider or qualification: before the self-government study could be conducted, the Standing Committee was to study the issue of Indian women and the Indian Act.6° It was in the hearings before the subcommittee on Indian women and the Indian Act that individual women's rights were seen to clash with the collective rights of First Nations. For example, while the Assembly of First Nations agreed that sex discrimination must end, it also took the position that reinstatement and citizenship in the First Nations was a collective right. The Native Council of Canada agreed with

99 Indian Women, Sex Equality, and the Charter

the Assembly of First Nations and said that interim measures should be taken respecting sex discrimination while studies continued on amendments to the whole Indian Act.61 The Native Women's Association of Canada, which had now replaced the National Committee on Indian Rights for Indian Women, said it was not willing to wait for Indian self-government before amendments could be brought to end discrimination. The women wanted reinstatement and the repeal of s. 12(1) (b) immediately. In general, the report of the sub-committee on Indian women and the Indian Act favoured ending sex discrimination by legislative amendment.62 It also recommended reinstatement of Indian women who had lost status under s. i 2 ( i ) ( b ) , along with firstgeneration children. In summing up the problem faced by the state, Kate Dunkley, the Library of Parliament researcher assigned to the Indian Affairs Parliamentary Committee, wrote: The current Indian Act is clearly unacceptable; however, any new measures must take into account both individual and collective rights. New standards must guarantee the right of an individual not to be discriminated against on the basis of sex, and in particular, the right of an individual who belongs to a minority not to be denied access to her culture, religion and language in community with other members of their group without reasonable and objective justification. The recognition of the right of access to a minority culture presupposes the right of survival of that culture.63

In the dying days of the 1984 Parliament, the Liberal government responded to the Standing Committee's report by bringing in legislative amendments to end sex discrimination in the Indian Act in the form of Bill C-47- The bill repealed s. i 2 ( i ) ( b ) , reinstated Indian women who had lost their status and band membership, and gave status and band membership to the first-generation children of these women. This was the first comprehensive, legislative effort by the Canadian government to end sex discrimination. It would be safe to assume that this bill appealed to women voters heading into the federal election because it showed some semblance of a desire to grant sex equality to one of the smallest minorities in Canada. However, the bill died on the Order Paper in the Senate when several Senators refused to give unanimous consent for passage. The Liberal government was voted out of office in 1984, having tried, but failed, to end sex discrimination against Indian women. Ten months into its term, the new Tory government, in June 1985, introduced Bill C-3i64, which sought the same purpose. The minister responsible for the bill, David Crombie, was among the Tory ministers who in 1979 had met the Indian women marchers. He had given his

ioo Teressa Anne Nahanee

commitment at that time as Health minister to do all in his power to end sex discrimination against Indian women. Five years later, he designed and brought in Bill €-31. Under the legislation, all women who had lost their status under s. 12(1) (b) were to be entitled to be reinstated in status and band membership, along with their first-generation children. To resolve some of the controversy around Indian selfgovernment, Bill C~31 increased the powers of Indian band councils to pass band membership codes in the future. The voting age for band councils was lowered from 21 to 18, and councils were given greater authority over the control of their reserve lands. The bill was passed on 25 June 1985, and its effective date was 15 April 1985 - the date on which section 15 of the Charter became effective. SECTION

15 APPLIES

TO I N D I A N WOMEN

The anniversary of the Charter of Rights and Freedoms will always coincide with the effective date of Bill C-g i, and, in my view, represents a victory for sex equality. As an Indian woman, I do not believe we can better celebrate the return of our sisters, mothers, aunts, and daughters to our Indian community in any better way than to remember that we were the first beneficiaries of s. 15. Many will want to forget the hard struggle we had to achieve sex equality. There are also those who are willing to forget that this was a struggle between the collective and the individual - the collective rights of Indian governments against the individual rights of women to sex equality. In discussing the application of the Charter of Rights and Freedoms to Indians on Indian lands,65 I recognize there was a clash between Indian collective rights to self-government and feminist ideals of individual rights. Some feminist theorists characterize individuals as "free and equal beings, emancipated from the ascribed, hierarchal bonds of traditional society."66 I am adopting the individualistic feminist perspective to argue for application of the Charter of Rights and Freedoms to First Nations governments. During the 19705 and 19808, the only secure knowledge that our women activists had was the notion that it is unacceptable and contrary to the Universal Declaration of Human Rights to discriminate against individual women based on sex. Throughout the struggle, everyone affected knew that this was a struggle for individual rights. Yes, I believe the women knew they were up against the collective. They knew the collective did not want them. But each woman, and each descendant, knew that it is blood, language, culture, and heritage which bring with them the individual's right to be an Indian, and a concurrent right to enjoy the benefits that accrue to "registered Indians."

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Indian Women, Sex Equality, and the Charter

The Charter stands opposite the collectivist aspirations of some Indian leaders, who find themselves supported by legal theoreticians like Boldt and Long, and to a certain extent by Sanders and Turpel. Their theories, in my view, are largely influenced by American Indian policy and case law. To a certain extent, Boldt and Long are influenced by the Rousseauian "noble savage" philosophy, and Sanders and Turpel are influenced by the international concept of "self-determination." Some of these theoreticians and some male Indian leaders have argued that sovereignty would put Indian governments outside the reach of the Charter of Rights and Freedoms. These same leaders would agree with the decision in the American case, Santa Clara Pueblo,^ which case upheld the sovereignty of American tribes, leaving to them the determination of tribal membership. The case stands for the proposition that sexual equality guarantees under the u.s. Constitution have no application in "Indian country." I find this worrisome, because it overlooks the legal and political struggle by Canadian Indian women to achieve sex equality in law. If some of our women, and some of our readers, were wondering why Indian women were so determined at the First Ministers' conferences and why their sole issue was sex equality, they should take time to remember our history of sex suppression and oppression. Indian women are not going to lose constitutionally what was so hard to achieve legislatively. In my view, the legal theoreticians who say that the Charter does not belong in Indian communities are concerned with the survival and powers of the collective, and they forget that the collective is made up of "little Indians."68 Each and every individual comprises the collective; there is no collective without them. We need to remember the history of our own extinction in this country. We numbered in the millions before smallpox, influenza, measles, sexual diseases, alcohol, and self-destruction. One of our tribes is extinct: the Beothuks were probably a great people, enjoying their language, culture, and traditions in Newfoundland. But all the Beothuks were killed, and only the name remains to remind us who they once were. No one protected the human, civil, and political rights of the Beothuks, and today they are no more. Let us not let this happen to other First Nations. We must protect each and every individual Indian. I would argue that the struggle for sex equality was cast in terms of individual versus collective rights by the patriarchal Indian establishment. In some respects, the prism of collective rights was used to justify the denial of sexual equality to Indian women. In my view, the battle between individual and collective rights took place in three fora: the parliamentary subcommittee on Indian women and the Indian Art69; the 19708 struggle for Indian self-government; and events leading to

1O2

Teressa Anne Nahanee

the adoption of the Constitution Act, 1982. In each case, the male Indian leadership argued in favour of sex equality for women, but only in the context of collective rights. Essentially, they argued that Indian governments must be established and recognized first in order for sex equality to follow. The evidence before the two parliamentary committees confirms this correlation. I would argue that the records of the First Ministers' conferences?0 on treaty and aboriginal rights in the i g8os confirm the concern of Indian women for sex equality, which remained their top priority from 1971 to 1985. These dates are important because they bracket two First Ministers' conferences on aboriginal and treaty rights, held in 1983 and 1985. At both meetings, Indian women were represented by their organizations, and each time they were assigned solely the task of taking care of the "equality" issue. The Native Women's Association of Canada (NWAC) received its accreditation through the Native Council of Canada to attend the 1983 meeting and represent the sex equality issue, while in 1985, its accreditation came from the Assembly of First Nations. The timing of the 1985 meeting coincided with passage of Bill C-31, but still Indian women were at the First Ministers conference to represent the sex equality issue. I recognize that there is a clash between collective rights of sovereign First Nations governments and individual rights of women. Stripped of equality by patriarchal laws that created male privilege as the norm on reserve lands, Indian women have had to face a tremendous struggle to regain their social position. FUTURE SEX EQUALITY AGENDA FOR INDIAN WOMEN

There is a saying, "it's never over 'til its over," and it is true of the struggle for sex equality waged by Indian women. Several outstanding issues must be addressed by the state before Indian women find themselves free of legal oppression. The federal government still has to address the need for additional Indian reserve lands to accommodate the 70,000 Indian men, women, and children added to the Indian registry and band lists as a result of Bill C~31. This has put pressure on Indian reserves and Indian governments to provide housing, education, medical services, and other programs to people at the local level. Where will these "new" Indians live? Given the increase in the Indian population because of Bill C~31, there is a requirement for over two million acres of reserve lands. These lands should be purchased by the federal government for Indian bands and designated as new Indian reserves.

103 Indian Women, Sex Equality, and the Charter

No legal or political action has been taken to rectify the sexdiscriminatory practice which consists of depriving of their band membership those women who married into other bands prior to 1985 that is, prior to Bill C-g i. In Lavell, the Federal Court of Appeal had held that depriving women, but not men, of band membership when they marry into another band was sex discrimination. These women should also have had the option of returning to their band lists, or perhaps they should have been required to be returned to their own band lists. There is also a question of economics involved here, as some women married into wealthy bands, while others married into poor bands. Indian women lost their rights, their property, and their money when they married out of their bands. Many of them lost the title to property that they had inherited from their parents or other relatives. Some lost oil royalties, and others lost disbursements of band funds and trust monies owing to them. These women have never been compensated for the deprivation of band membership and Indian status, and there is a sense that redress has been precluded by Bill 0-31. There should be a judicial inquiry to examine the nature and extent of these financial losses resulting from discriminatory legislation.

CHAPTER EIGHT

Families and Family Law MARY JANE MOSSMAN

Mary Jane Mossman examine le bilan des reformes qui se sont produites dans le domaine du droit familial et, de fagon plus generale, des politiques relatives a la famille. Apres avoir passe en revue les recommandations de la Commission sur ces questions, elle examine les succes et les echecs qui ont marque leur mise en pratique. Les recours juridiques component des limites, et il importe de distinguer 1'egalite formelle de la veritable egalite.

Evaluating the recommendations of the Royal Commission on the Status of Women that deal with families and family law1 can be done by focusing on three aspects of this topic: the nature of these recommendations; the context within which the recommendations must be assessed, in particular the nature of law and the impact of family-law reforms; and the significance of the recommendations with the benefit of twenty years' experience in the family-law context in Canada.

THE COMMISSION'S RECOMMENDATIONS The Commission's recommendations were divided into three main topic areas - namely, marriage, divorce, and parenthood. With respect to marriage,2 the recommendations included suggestions for legal reforms to raise the age of eligibility for marriage to eighteen, to allow a woman to hold a passport in her own name or in that of her husband (at her discretion), and to have her own domicile. As well, the Commission recommended that legal changes be introduced to allow Indian women to retain their status for themselves (and for their children) upon marrying non-Indians.

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Families and Family Law

There were a number of recommendations pertaining to divorce3 in the report. In particular, the Commission recommended that divorce legislation be amended to mandate an equal division of assets when divorce occurs, as well as equality for husbands and wives in terms of obligations of support at that time. The Commission also recommended the establishment of special "family courts" and the creation of a unit within provincial governments with responsibility for assessing and enforcing child-support payments. As well, it was suggested that the minimum period of separation required for divorce to become legally permissible, be reduced from three years to one year. Among the recommendations concerning parenthood,4 there were several that pertained to the establishment of better day-care arrangements, including sliding-scale fees based on parental incomes and the provision of National Housing Act loans to build and renovate day-care places for more children. There were recommendations to increase the availability of birth-control information and sterilization procedures, and to liberalize abortion.5 Finally, the report contained a recommendation for increased social and financial support for mothers who were not married.

THE REPORT'S RECOMMENDATIONS AND THE ROLE OF LAW In assessing the role of law in the context of the Commission's recommendations, it is instructive to consider what has been accomplished by the women's movement in Canada in the years since the report was released. In terms of obvious successes, we can point to the adoption of the recommendations concerning the right of married women to have passports in their own names and to have separate domiciles. As well, recent changes to the federal Divorce Act have reduced the period of separation required as a ground for entitlement to divorce from three years to one, as was recommended by the Commission two decades ago. In addition to these "full successes," some recommendations might be characterized as "somewhat successful." For example, some of the changes made to the Indian Act, while they may not be those which were originally envisaged, do allow some Indian women to keep their status upon marrying non-Indians.6 In addition, some provinces have enacted legislation that requires an equal division of assets when the husband and wife divorce7 and ensures equality for husbands and wives in the matter of child support. In other provinces, legislative changes allow judges to exercise discretion in dividing assets on the basis of spousal equality in marriage.8 On the other hand, research published by Transitions^ reveals that sole-support mothers remain

io6 Mary Jane Mossman

disproportionately poor in Ontario and probably in other parts of Canada as well.10 Moreover, federal initiatives to "claw back" family allowances and other benefits may suggest that earlier success in providing support for parenting is now being eroded. 11 Finally, there are a number of issues for which it is necessary to conclude that there has been "no success." Despite a need that was demonstrated as long ago as 1970, we still have no national day-care strategy in Canada even though there are more women with young children entering the workforce.12 And while there are "unified family courts" in a few locations in Canada, there are too many jurisdictions where litigation is protracted because of jurisdictional divisions and disputes. Moreover, it is utterly depressing to realize that twenty years later, the women's movement in Canada has continued to struggle to implement an abortion recommendation very similar to that proposed by a majority of the Commission in 1970. Thus it is clear that some of the Commission's recommendations concerning women and families have been implemented in the past two decades, while others remain unrealized (and perhaps unrealizable) . But if the question here is whether we have won or lost, the answer may be ambivalent and somewhat elusive. Are we here to celebrate our overall success or to lament our failures? Or because we need to renew the struggle collectively? Such questions are crucial as we face the challenges of the next two decades, and they require us to be more reflective about our underlying assumptions concerning this process of assessment itself. More particularly, I want to focus on the Commission's underlying assumptions about the role of law in changing (and, implicitly, improving) the status of women. For a lawyer who reads the Commission's report twenty years later, it is startling to see in its recommendations such a clear sense of optimism about the use of law as a means of social change. From our current perspective, such a reliance on law seems naive and even dangerous. Yet it is important to remember the context in which these recommendations were fashioned in 1970. At that time, the Canadian Bill of Rights had been in existence for only about a decade and the Drybones1^ decision interpreting it had raised our expectations about the usefulness of law in the search for social justice. Pierre Trudeau, as minister of Justice, had captured the mood of Canadians in calling for measures to ensure a "Just Society," and the enactment of the 1968 Divorce Act had swept away old-fashioned ideas about law and morality. According to the Commission's report, such legislative changes both reflected and reinforced the idea that law should be capable of being understood by people and worthy of public respect.

107 Families and Family Law More generally, the "War on Poverty" movement in the United States also recognized the need for ordinary people to take part in legal action, and there was a burgeoning literature in legal periodicals about the need for lawyers to become "social engineers."14 Such an image necessarily resulted from a concept of law as a tool for social change - a concept that had great appeal to those in the women's movement who wanted to achieve fundamental changes in the status of women in Canada. Thus it is not difficult to understand the Commission's general sense of optimism about the role of law in achieving its objectives for the women of Canada. This optimism was possible in part, of course, because the report preceded the negative outcomes of legal challenges in cases like Murdoch15, Lavell,l& and Bliss,1"1 — all of which required women to rethink the extent to which court actions could be used to advance their interests. Of course, the report also preceded other, more positive cases, such as Brooks,18 Lavallee,19 and Morgentaler.2" The end result is that it is much more difficult, today, to characterize the role of law in achieving women's rights: we now understand that law is ambiguous and contingent, providing (at best) uneven outcomes for legal challenges involving women's rights. In addition, we need to reassess what we mean, fundamentally, when we speak of legal "successes" and "failures." While it is true that most of the common-law provinces (and Quebec) have legislated the reforms recommended by the Commission with respect to changes to the division of assets and support upon divorce, for example, statistics on poverty in Canada demonstrate that women remain among the poorest Canadians, and that the extent of their poverty may actually be increasing.21 The increasing feminization of poverty in Canada, in the face of widespread law reform that equalizes property and support entitlement upon divorce, is a puzzle 22 that must be addressed in assessing our achievements and in reflecting on the impact of the Commission's recommendations. In addressing this puzzle, we need not only to "add up the score" but also to re-think the report's fundamental assumptions about law reform in light of our apparent successes and failures. THE STATUS OF W O M E N AND THE LAW REFORM PROCESS

The role of law reform in achieving the goals of the women's movement has been uneven in Canada, just as Carol Smart has written elsewhere: It is inaccurate to assert that nothing has changed to improve the position of women. Equally there has been no linear development of progressive legisla-

io8 Mary Jane Mossman tion. Advances in one area (e.g., equal pay) are mitigated by reactionary measures elsewhere (e.g., employment protection legislation). Similarly the extension of equal treatment under social security legislation has occurred at a time when the value of National Insurance Benefits has been seriously eroded.23

Thus law can accurately be described as both facilitating change and hindering change. In the context of the 19905, therefore, we need to recognize the inadequacy of a metaphor that sees law as a tool for social change as if its impact can only, and always, be progressive. Indeed, a more appropriate metaphor for law may be the Janus figure, which looks in both directions and more aptly characterizes law as both reinforcing and challenging the status quo - and both as an opportunity for, and a barrier against, achieving our objectives for women. As a consequence, the question must be reformulated to enable us to focus more precisely on when and how law can be used to achieve women's equality objectives in the future. In other words, we must focus on the paradoxical nature of law reform for women. Such a reformulation enables us, for example, to understand, and to move beyond, the formal equality approaches evident in the Commission's report, in order to address issues in terms of more substantive equality objectives for women. It also enables us to recognize the need to question women's roles within the family, where women are most unlike individuals with individual rights, the dominant philosophical ideology of law in the twentieth century. This challenge to familial structures and roles in the context of equality objectives for women is both necessary and extraordinarily difficult.24 In considering the feasibility of such challenges, moreover, we must also take account of the exponential increase in the number of women who are lawyers. From 1970 to 1990, women increased from about 3 percent of the legal profession to almost 25 percent.25 Yet we are more pessimistic than ever before about using law to achieve benefits for women. Whether this means that women lawyers better understand the complexity of law and legal processes than they did before, or that they are unable to resist the structural pressure to assimilate into mainstream legal objectives, is a difficult question for all of us here.26 Finally, we must now also face the paradox of equality objectives that do not meet economic, as well as symbolic, equality goals. In discussing family assets upon divorce, for example, the Commission recommended that the provinces and territories "amend their law in order to recognize the concept of equal partnership in marriage so that the contribution of each spouse to the marriage partnership may be acknowledged, and that [upon dissolution] each will have a right to an

log Families and Family Law

equal share in the assets accumulated." Even though this objective has arguably been achieved by legislative reform (for example, by passage of the Family Law Act in Ontario), women (and children) became increasingly poorer during the i g8os. What we may need now is a reconceptualizing of both the problem and its potential solutions. The privatization of family needs for economic security, both in marriage and in divorce, may be simply inappropriate to achieve such fundamental societal changes. As Margrit Eichler has suggested, "if ... further reform of the family law is proposed as a solution to the problem of female and child poverty, we must ask ourselves what this avoids doing: namely, asking for a comprehensive reform of the income security system, and of the overall economic structure such that poverty in general (whether subsequent to a divorce or not) is eradicated."27 Such an approach also suggests the need to consider women's economic status in marriage, in relations outside marriage, in single status, and so on, and moves the focus of the debate beyond the principles and calculations of post-divorce settlements to a more fundamental reconceptualizing of women within the legal system. In this context, we need to consider whether law reform is a process that obscures or prevents women's social and legal subordination in Canada - and how law reform can be harnessed to achieve the objectives of the women's movement. In doing so, the law reform process, just as the women's movement, must begin to take account of the diversity of women's experiences and to fashion responses (legal, political, economic, and social) that are inclusive of diversity. The basic issues of women's equality therefore persist, perhaps most particularly in the family context. As Susan Moller Okin has suggested, the question of equality for women in family life is fundamental: Why should we allow the continuance of the peculiar contract that marriage has become, in which legal equality is assumed but actual inequality persists because women, whether or not they work for wages, are considerably hampered in developing skills or economic security, being caught up in doing the great bulk of the family's unpaid work? Why should we allow an injustice that is clearly harming large numbers of children, as well as women, to persist at the foundation of the political order?28

The fundamental issue for women now is justice in the context of family life.

CHAPTER NINE

Feminist Interventions and State Policy CAROL SMART

Ce chapitre se penche sur les limites et les inconvenients du recours au droit comme strategic privilegiee pour realiser 1'egalite des femmes dans nos societes. Carol Smart s'interroge sur cette tendance a vouloir traduire des problemes sociaux en problemes juridiques et a essayer de transformer I'impuissance en « droits ». La conclusion de 1'auteure: il faut veiller a ne pas forcer la vie quotidienne dans un carcan « ultra-legaliste ».

INTRODUCTION

By way of an opening remark I would like to confess that I feel a little out of place at a conference that celebrates a special moment in Canadian feminist history. One obvious reason for my discomfort is that I am British and have not been part of this history. Indeed, recent history in the U.K. has been so overdetermined by Thatcherism that you will appreciate that my analysis of feminist engagement with the state is likely to be at considerable variance to the Canadian experience (s). But there is another reason why I feel out of place, and that is because my analysis of law and of optimism about using law is quite at variance to the orientation manifested in the opening sessions of this conference. I therefore feel a little like the unwelcome guest at the wedding reception. I refer to the one who catches your sleeve and tells you a long and depressing narrative about albatrosses. Just when you want to have a good time, I risk being the carrier of illtidings! So, although my paper is not long, it is more cautionary than celebratory. In it, I want to discuss the place of academic feminist work in the field of law. I am particularly interested in the relationship between

in

Feminist Interventions and State Policy

theory and practice, and in how our theories of law and the state seem to be related to certain strategies or political orientations. Although family law is the focus of this panel, I want to map out a more general picture to begin with, and then draw on examples from family law to elaborate my points. I will inevitably be drawing on a cultural and political tradition that is British rather than Canadian - although I think that we should be asking the same questions about engagement with law whichever side of the Atlantic we are on. British feminism has always been ambivalent about engaging directly with law and with state-motivated or -instigated reform processes. Yet we have tended to overlook this ambivalence when we construct our feminist histories in terms of legal milestones of achievement. In Britain, these milestones might be the "persons" cases, married women's property acts, divorce reform, equal pay, sex discrimination, and so on. All of us here undoubtedly feel glad that these milestones were achieved. We are grateful to the early feminists who took on the law and made progress; how could we feel otherwise? But we do need to look at this constructed history critically. Most particularly, we should be aware that if our history is to be measured by such events, we are celebrating a version of history in which law becomes the driving force. We place law in a very privileged position in our understanding of women's emancipation, and this in turn perpetuates a tendency to assume that law will continue to occupy this position in the present. Thus this form of history encourages an uncritical view of law and supports the tendency to allow one version of history to overdetermine our analysis of the present. Put simply, we should not assume that it was engagement with law that has made things better. We should be sceptical of romantic ideas of inevitable progress, and we should also be particularly concerned about using law, thus empowering law itself, if we seek to use it instrumentally. Let me say from the start that I am fully aware that we do not often have a lot of choice about using law as a strategy. Law has already defined much of the terrain on which we operate. Not only are more and more issues defined as legal problems, but we still tend to think of law as a form of engagement in which power imbalances can (at least eventually) be neutralized. I want to take these two points separately. DEFINING SOCIAL ISSUES AS LEGAL PROBLEMS

We have tended to see the transformation of social problems into legal problems as progressive. We have, for example, identified new wrongs or harms and transformed them into rights claims or equality claims.

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We have had to turn them into rights claims in order for the law to make sense of our demands. We have also tended to avoid other formulations that might gain some support because of other possible connotations. Hence, we have avoided making moral claims, because somehow moral claims have been defined as reactionary by feminism and progressive left movements. Rights discourse, on the other hand, is felt to be less ambiguous, less manipulatable, more in keeping with the form of claim that citizens of equal status should make of the state. The idea of the citizen as holder of rights remains a compelling rhetoric stretching as it does from anti-slavery, suffrage, and even revolutionary struggle to the present. Thus, we might now argue that it is better - more progressive, more effective, more "operationizable," and so on - to have legal rights than moral claims. We also know that on one level we cannot operate in modern society without rights. Rights are like plastic currency. If you are not creditworthy you are excluded from one of the basic activities of modern citizenship - namely, consumerism. You are forced to live quite literally in another economic and social sphere. You are marginalized and cannot partake of benefits constructed around the ownership of credit cards. This analogy perhaps holds most true when we think of the position of the so-called illegal immigrant, or the person who has lesser citizenship status than others. Such people are forced onto the margins and can be said to be denied access to civil society. (Think, for example, of the market in Filipino wives in Britain. Such wives are allowed British citizenship only as long as they remain married. If they divorce their husbands they are "repatriated." Thus, many women cannot use existing resources to protect themselves against violence or abuse, and moreover they risk losing their children.) But my concern that a woman who is an illegal immigrant has few rights does not necessarily lead me to espouse equal rights as a blanket principle. Drawing from the U.K. experience, we know that depending on the political climate, equal rights can mean employers being given the right to sue trade unions and individual employees for going on strike. This right is seen as the natural equalizing counterbalance to the employees' right to strike. The point, of course, is that law does not guarantee rights only to the powerless, and perhaps we should keep reminding ourselves of its tendency to have a preference for the powerful. RIGHTS AS NEUTRALIZING POWER DIFFERENCES

This brings me to my point about rights neutralizing power differences. We have known for some time that one cannot legislate the end

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of capitalism. I think we know this about patriarchy as well, although some advocates of feminist jurisprudence seem to argue that we can. But mostly, when we engage with law as it is (rather than speculate about a Utopian vision), we have less exalted aims. We seek to neutralize power differences on a more individual scale. This is an important feature of feminist engagement with law, especially in family law. We have tended to pull back from asking for measures for women (e.g., maternal custody rights), and instead try to use law to neutralize the power imbalances between specific or individual men and women. This approach has assumed that a broad understanding of women's disadvantage - historical, cultural, and economic - can be brought to bear on specific issues between individual men and women. Thus we expect judges to appreciate that men and women do not appear as equals before them. To some extent, this has been quite a successful strategy in the U.K. in that the distribution of matrimonial property, in principle at least, has been based on equity rather than equality over the last twenty years. However, this principle has not extended to the so-called new property of health and retirement pension schemes, which are arguably a most vital matrimonial asset. In the United Kingdom, the move away from state pension schemes has worsened women's position on divorce because only state schemes go any way towards compensating wives who are divorced. Moreover, there has been no move towards recognizing the real economic costs to women of leaving the labour market to care for children or relatives. In addition to this, we must acknowledge that few individual men could afford to repay their wives for their loss of earnings and pension rights. Only a socially based scheme could do this, and this must cast doubt on the tendency towards using law against individuals to resolve inequalities between spouses. In areas like child custody, access or visitation rights, and illegitimacy, a different problem becomes manifest if we focus on a contest of individuals. While feminists will argue that women are the disadvantaged "class" when it comes to child care, social policy has begun to reverse this argument and to depict men as the disadvantaged group. Thus we have seen our rhetoric of rights taken up and used extensively and compellingly by men against individual women. My own research on how parents negotiate child custody when they divorce reflects this trend. Although this was only a small pilot project, a noticeable difference between the fathers and mothers who were in some conflict over their children was the tendency for fathers to speak in terms of their legal rights, or the denial of their legal rights, while mothers hardly ever assumed they had legal rights and deployed a completely different rhetoric based on caring or moral claims. I wish

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to suggest, therefore, that the translation of a perceived harm into a claim for legal rights is not always or inevitably progressive. In the field of illegitimacy, European law is rushing to protect the "right to family life" of men who are denied legal paternity, access or even joint custody of illegitimate children. This is an interesting example. The European Convention on Human Rights, signed by most European countries after the Second World War, undertook to protect family life. This measure was a direct response to the treatment of families during the war, when they were split up, and children and parents were separated. The measure was meant to protect minority groups from the excesses of a fascist or other government that might start to direct labour, etc. What was once a measure to assist families against the state, however, has become one deployed by individual men against women. This has had huge ramifications in some European States, and fathers in Britain are attempting to use the Court of Human Justice to make similar claims. One example from the Dutch experience may be helpful here. In 1991 a father took a case to court, arguing that he was being denied the right to a family life because the mother of his son refused him access. The mother was his own daughter, and the child was born of his incestuous abuse of her. He did not win the case, but the mother suffered greatly as a consequence of it. I raise this as an example here to point to the extent of the disadvantages that can occur through the popularization of an individualistic legal strategy as a means of dealing with or defining social harms. The point I am making, therefore, is that if we turn our harms into legal rights, they may work a little for some for a short while. But there are absolutely no guarantees that they will not be taken up and used against us even more effectively. Now of course, there are never any guarantees about anything, and I accept that. But I do want to draw an analogy here with medicine to help progress my argument. If we look at feminist engagement with medicine, we can see two tendencies. One has been to require medicine to take women and women's illnesses seriously. The idea that medicine should treat women's ailments as trivial or imaginary has caused great anger in feminist communities. We have insisted that the doctors and scientists listen to and acknowledge our experiences. Put briefly, we have said we are suffering from real illnesses or syndromes and that these should be medically treated. But elsewhere we see a different strategy. In the fields of obstetrics, abortion, and birth control, the opposite appears to be happening. More women want to be out of the hands of the medics, and not be medicalized and hence controlled in this fashion. In Britain feminists

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are fighting for the retention of midwives and home births, for the retention and extension of safe abortion facilities - or at least for leaving the decision whether an abortion is appropriate or not in the woman's hands rather than the doctor's - and for greater self-determination in the sphere of reproduction (including infertility treatments). Thus there is a tension between the call to medicalize and the resistance against medicalization. Yet at another level still, we have come to understand medicine as always potentially iatrogenic. In other words, we know that the processes that seek to cure often produce side effects or even expose us to quite different diseases. We recognize that the problem of medicine is not just that it empowers doctors and scientists (unless we strongly resist), but that the system of medicine brings with it certain harms. Such harms may not be the intentions of individual doctors or even a class of doctors, but as a method of managing health, medicine can be harmful to the body it seeks to cure. Thus there is a growing tendency for patients to say that they want to make their own decisions about health and illness, and to negotiate disease differently. There is even an ongoing process of redefining disease and health. My argument is that we must start to think this way about law. We know enough now to recognize that some of the good legislation that we or our foremothers pressed for has not produced the desired goals. But if we press for more law, we may have the same effect as pressing for the extension of medicalization. Why do we want to process all our harms through legal terms? Who is empowered if we do? What harms might we inadvertently produce? Perhaps we need to think in terms of juridogenesis. This term, which borrows heavily from the term iatrogenesis, means that law produces specific harms, and then presents only itself as capable of remedying them. If we accept this, we empower law and lawyers, not ourselves. But just as importantly, we become wedded to a system of extensive, and apparently endless, legalization of everyday life. So it is not that we do not need law, any more than we do not need medicine at times. But I want to urge caution and restraint in the use of law. My point is not only that it may not work, nor even that it may be used more effectively against us, but it is that law produces harms that are located at such a technical level that it appears that only lawyers can understand or deal with them. Hence we become increasingly dependent on law, and the system becomes self-perpetuating. We reach a point where we cannot imagine any other alternatives besides legal intervention. I would therefore urge caution, as I warned I would at the start of this presentation. Let us retain our ambivalence about the usefulness of law, guard against oversimplified solutions, and always think twice before contributing to the legalization of everyday life.

CHAPTER TEN

Pay Equity in Manitoba NANCY SULLIVAN

Ce chapitre examine la question de 1'equite salariale au Manitoba, la premiere province a adopter une loi pro-active dans ce domaine. Nancy Sullivan decrit les facteurs qui peuvent expliquer cette innovation legislative et analyse les effets de la loi manitobaine.

The marking of the twentieth anniversary of the publication of the report of the Royal Commission on the Status of Women is an opportune moment to trace the developments that have resulted in specific public policy initiatives. It is useful to do this in a setting that brings together civil servants and academics - groups that meet all too infrequently - to discuss, from their respective viewpoints, the success of government initiatives on issues of particular interest to women. In a 1980 report that assessed the progress of federal government action in response to the Commission's recommendations, Doris Anderson, then president of the Canadian Advisory Council on the Status of Women, identified the key issues for women in the igSos: Finally, although the Royal Commission on the Status of Women was tremendously important in pin-pointing a whole spectrum of women's issues that needed to be addressed, it shouldn't be enshrined as the final word on the subject. Many new and pressing issues concern women today that were not at all evident in 1970. The whole question of employment for women, the special needs of women within the framework of a general employment strategy, the worsening situation of economic security for women which makes wage gaps and lack of pensions even more important than before, are of paramount importance today.

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It is on the Manitoba experience in implementing pay equity as one means of improving the economic situation of women and their families that I will focus today. The panellists have been asked to consider whether state initiatives make a difference. The Manitoba pay equity experience demonstrates, I believe, that the answer is a definite yes, both within that province and across Canada. The Pay Equity Act, which legislated equal pay for work of equal value for the provincial civil service and for some employees in the broader public sector, was passed unanimously in July 1985. The preamble to the legislation contains an acknowledgment that "many women in the Manitoba labour force work in traditionally female occupational groups, where their work is undervalued and underpaid." Manitoba was the first Canadian province to implement a pro-active legislated model for pay equity. As with any public policy initiative, it is instructive to analyze the factors that led to this outcome. A series of events and pressures, both within and outside the province, all contributed to the decision by elected officials to unanimously support the legislation. INTERNAL FACTORS

Like most other provinces, Manitoba had legislated equal pay for equal work in the 19505. However, while the number of women in the paid labour force had continued to grow - from 43.4 percent in 1975 to 55.7 percent in 1985 - the wage gap between men and women had diminished only slightly, from 40 percent in 1970 to 33 percent in 1985. Women's groups and public-sector unions in Manitoba increasingly focused on economic issues during the 19705 and early 19805. There was agreement that measures beyond equal-pay-for-equal-work legislation were needed to narrow the wage gap, since men and women generally did different types of work. A study entitled Women In The Manitoba Civil Service was released in the mid-1970s by the secretariat of the Planning and Priorities Committee of the cabinet. The study found that women were concentrated in lowerpaid occupations in the civil service and that, in all but two of the occupational groups, the average annual salary of men exceeded that of women. In 1975, support staff at the Health Sciences Centre, a large Winnipeg hospital, received pay-equity wage adjustments based on the results of a joint evaluation program. The joint program had been proposed by the Canadian Union of Public Employees (CUPE) during contract negotiations in 1973 to identify pay disparities. In 1976, the Women's Bureau of the Department of Labour published a working paper on equal pay for work of equal value, which

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served as the background document for a series of public hearings held throughout the province. In the fall of 1977, the Bureau released a summary of the hearings and recommended that equal-value legislation be adopted. During the election campaign of 1981, the New Democratic Party (NDP) committed itself to equal-value legislation. When the party formed the government, the minister of Labour, who was also the minister responsible for the Status of women, identified equal-value legislation as a top priority for the department. The fall of 1984 was a very active period. The Equal Pay Coalition of Manitoba was formed; a Manitoba Federation of Labour brief to the cabinet called for equal-value legislation; and the largest civil service union, the Manitoba Government Employees' Association (MGEA) and the government agreed to establish a joint committee to review and report on the concept of equal value. A number of women's groups, including the Manitoba Advisory Council on the Status of Women, were also lobbying the government for equal-value legislation. Market research conducted by government revealed strong public support for implementing equal pay for work of equal value. During the winter of 1984-85, provincial officials met with consultants, representatives of interest groups, and officials who had been involved in pay-equity implementation in Minnesota and other jurisdictions. EXTERNAL FACTORS

Developments in other jurisdictions, particularly in the state of Minnesota, were critical to the approach adopted by Manitoba for pay equity implementation. In the mid to late 19708, the Quebec and federal governments had enacted human rights legislation containing provisions for equal pay for work of equivalent value. Then, in 1982 the state of Minnesota passed the State Government Pay Equity Act to implement pay equity for its employees. Two years later, Minnesota enacted the Local Government Pay Equity Act, extending its pro-active legislated model to other publicsector employers - namely, cities, counties, and school districts. The year 1984 also saw the release of the Report of the Royal Commission on Equality in Employment, prepared by Madam Justice Rosalie Silberman Abella, which recommended that "equal pay for work of equal value should be part of all employment equity programs." Elected officials and civil servants in Manitoba were aware that relatively few complaints had been pursued under the Human Rights Acts in Quebec and at the federal level. The success of the implementation of

ii 9 Pay Equity in Manitoba

Minnesota's proactive legislative model provided reassurance that this approach could be both efficient and cost effective in a highly unionized public sector setting. Minnesota and Manitoba share many demographic and geographic similarities. Accordingly, there was a "comfort level" in using its approach as the model for the Manitoba legislation. In summary, a combination of internal and external factors led elected officials to take a pro-active approach to pay equity in Manitoba. These included: - the growth in the number of women in the paid labour force, which resulted in issues related to working women becoming more important; - an increased awareness of, and activity regarding, issues of interest to women and, in particular, a focus by women's groups on economic issues, such as pay equity, during the 19705 and 19805; - the failure of equal-pay-for-equal-work legislation to significantly reduce the wage gap between women and men; - the greater profile given to pay equity as a bargaining issue by publicsector unions; - evidence from jurisdictions such as Minnesota that pay-equity implementation in the public sector was feasible; the successful implementation experience in Minnesota was likely the catalyst for the decision to take a pro-active legislated approach in Manitoba; - the limited effect of the complaint-based model, which prompted Manitoba to reject that approach; - political will, in the form of an election promise by the NDP and of the appointment of a single minister responsible for the Department of Labour and the Status of Women, which contributed to ensuring that pay equity remained a high priority in government. IMPACT OF THE MANITOBA LEGISLATION

I began my presentation by stating that the Manitoba government's decision to legislate pay equity in the public sector has indeed made a difference. It is important to note that while the party in power changed following the passage of the legislation, the commitment to implement that legislation has remained firm. In fact, the implementation and phasing-in of the wage adjustments have primarily taken place under a new government. The impact of the legislation can be viewed on two levels: first, wage adjustments to employees in the province; and second, the growth of pay equity initiatives by governments across Canada.

i so Nancy Sullivan

Some 53,000 employees are covered by the Manitoba legislation. Approximately one quarter of these employees received wage increases as a result of pay-equity audits in their workplaces. Seventy percent of the women employees received adjustments. The average hourly adjustment by class in the public sectors covered by the legislation was 14 percent. For particular classes, the adjustments were higher. The base wage rate of a woman working as a secretary in the Manitoba civil service, for example, increased from $12.13 per hour in 1986, prior to the phase-in of the pay equity wage adjustments, to $15.25 per hour in 1990, the year that the final adjustment was made. This increased wage rate translates into higher family income in the short term and will also result in higher pension benefits at retirement. In the civil service, women in the largest union, the Manitoba Government Employees' Association, were paid 86 percent of the average hourly wage rates of men - a wage gap of 14 percent - prior to payequity implementation. Following the pay-equity wage adjustments, the wage gap for these women was reduced to 7 percent. Wage adjustments are being phased in over a four-year period for employees in universities, health-care facilities, and crown corporations, and they will be fully implemented in the fall of 1991. The success of the Manitoba experience can also be measured by the fact that in only one sector was there recourse to the final disputeresolution mechanism provided for in the legislation. In all other cases, the jointly negotiated model, which also involved non-unionized employee representatives, was successful in enabling the parties to develop flexible approaches to pay equity that best served the needs of each organization. Since 1985, eight other Canadian governments have adopted payequity initiatives. While the models vary from legislation similar to Manitoba's in four provinces, to negotiated agreements with civil-service bargaining agents in three others, the Manitoba approach is reflected in all of these initiatives. Solutions to the undervaluation of work traditionally done by women are being worked out jointly by labour and management within a negotiated framework. We in the West are not accustomed to seeing our good ideas picked up on elsewhere in Canada, so it has been a new experience to be asked to provide advice and assistance to other jurisdictions. The pay equity process in Manitoba has, for the most part, involved heavily unionized public-sector workplaces - the civil service, health care facilities, universities and crown corporations. The model that has been so successful in this environment cannot automatically be transferred to other types of employers. However, there are some common features that must be addressed in all settings.

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The Manitoba legislation requires that employers negotiate in a collective bargaining mode the implementation of pay equity within the workplace. This has been critical to the success of implementation since, in the past, many bargaining agents objected to job evaluation systems. Since bargaining agents and other employee representatives were involved in the selection of the job evaluation system and its application, they had a shared ownership of the results of the audit. The Manitoba experience, like that in Minnesota, has demonstrated that with good will and common sense, pay equity can be implemented. We look forward to learning more of the Ontario experience in applying a pro-active legislated model in highly unionized public and private sectors and in non-unionized environments. This is the only North American model that exists to provide direction in implementing pay equity in the private sector. In closing, I want to borrow from my predecessor, Roberta EllisGrunfeld, now deputy minister of Labour in Manitoba: "It is possible for promoters and detractors of pay equity to become excessive or plain silly in attempts to present this initiative as either the panacea for all of the ills of working women, or a pandora's box which will turn compensation practice and labour relations upside down. Our initial experience in the Manitoba civil service supports neither of these two extremes." The Manitoba experience has, however, demonstrated that pay equity is an effective means of narrowing the wage gap between women and men. It also highlights the need for other public-policy initiatives, such as quality child care and affirmative action programs, if the economic situation of women is to continue to improve.

CHAPTER ELEVEN

Pay Equity: Not Just a Matter of Money PAT A R M S T R O N G

Pat Armstrong examine la loi ontarienne sur 1'equite salariale adoptee en 1987. Elle 1'evalue du point de vue de son impact sur les salaires des fernmes mais aussi dans une perspective postmoderne, centree sur les differences entre les femmes, sur 1'importance de la signification et de la complexite. Elle croit que la loi a fort probablement des effets contradictoires mais que son impact depend en grande partie des actions des femmes en vue de transformer la signification de leur travail et d'influer sur 1'application de la loi.

Although the report of the Royal Commission on the Status of Women (1970) carefully documented women's inequality, it was in general an optimistic piece. There were certainly critics who argued at the time that the report did not go far enough. But many were hopeful that the very exposure of inequality would serve to improve women's conditions and that a state concerned with protecting democratic rights would take action to ensure that this took place. In the twenty years since the publication of the report, however, disillusionment has set in. Progress has been very slow. In some areas, the state has failed to introduce legislation, programs, or policies that would promote equality. In other areas, state action has failed to do the job. While there have been some improvements in women's conditions, most women continue to do women's work at women's wages, in or out of the formal economy.l Housework and child care remain primarily women's responsibility.2 Moreover, there has been little improvement in the availability, cost, and quality of child-care facilities.3 Sexual harassment and physical abuse are still common, and there have been no significant advances in terms of women's ability to con-

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trol their fertility.4 While some changes have benefited some women, in general the state has failed to fulfil the expectations created by the Commission's report. This failure has given rise to both new theories about women's conditions and new strategies for change. Although often frustrated by the rate of progress, many women have continued to look to the state for legislative changes that would benefit them and their sisters. Drawing on their experiences with existing legislation and with both state and private-sector practices, some women have pressured for legislation that focuses on the structural basis of inequality rather than on the discriminatory ideas that had been a primary concern of the Commission and of earlier legislation.5 The Ontario Pay Equity Act of 1987 resulted from the efforts of such women. It reflected both their conviction that the state could provide the conditions for some fundamental change and their analysis of structural processes that kept women in their place. In calling for the legislation, however, the Pay Equity Coalition made it clear that "this legislation is not a panacea and is only one, albeit a major step in achieving economic equality for women. Even when this legislation is in place, many women will still face discrimination at work which must be addressed through other means, such as mandatory day care, more retraining opportunities, higher minimum wage laws, and easier access to unionization."6 Especially within the universities, however, some women have become convinced that the state can and will do little to help women in different classes, races, ethnic, and age groups. Many of these women have been turning to approaches that can be collectively called postmodern. Although there are significant differences among and within various theories that fall under this rubric, the many versions of postmodernism grow out of some common criticisms and concerns. For many postmodernists, appealing to the state for help in gaining equal pay would simply be wrong-headed and inappropriate, in part because there can be no policy that covers women, given that the very category women is rejected. These theorists have emphasized the complexity of relations, structures, and processes, rejecting what they define as simple approaches or simple solutions based on grand theories that apply to all women. They have attacked what is frequently termed essentialism - the notion that there are fundamental truths, shared values for assessing progress or rational action, measured according to objective criteria.7 Related to both of these issues are their critiques of dichotomies such as that between women and men. Instead, they prefer to think in terms of a variety of sexual identities and to emphasize the differences among women.

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Their focus is on "the importance of the subjective in constituting the meaning of women's lived reality."8 Consequently, they "make language the site of a struggle over meaning which is a prerequisite for political change."9 For these theorists, it is critical to focus on meaning and to take action "within the confines of some local determinism, some interpretive community"10 rather than to develop legislative strategies at the provincial or national level. It is not clear, however, precisely what this would mean in terms of strategies to increase pay. This paper evaluates the Ontario pay-equity legislation primarily in terms of its impact on women's current pay and future possibilities. It therefore assumes that there are criteria for assessing change that are related to concrete realities and that some legislative strategies can benefit women as a sex. In other words, it takes a perspective that is similar in many ways to that of the women who fought for the legislation. At the same time, it takes the critiques of postmodernists into account and assesses the impact of the legislation in terms of the emphasis on complexity, on differences among women, on the relative nature of worth, and on the importance of meaning. The paper argues that, although many women will receive more pay as a result of the Ontario Pay Equity Act, the recognition of complexity that is built into the act could lead to increased pay differences among women. In other words, in conforming to a postmodernist emphasis, the legislation may serve to increase inequality among women. At the same time, the experience of applying the legislation has supported the postmodernist claim that there are no objective, universal criteria establishing essential worth. Worth, to use their terminology, is socially constructed rather than objectively determined or measured. Indeed, the implementation process has also frequently served to transform the struggle into one over meaning - a struggle that postmodernists could applaud and a struggle that may have important long-term implications for women as a sex. The paper concludes that the impact of this state legislation is not predetermined and is frequently contradictory. The act could result in some gains for small numbers of women while creating the impression that the issue has been settled once and for all. But it could also legitimize women's right to better pay and transform the definitions of skill, effort, responsibility, and working conditions while challenging established, hierarchical ways of organizing work. The particular consequences will be determined by women's struggles at both the local and provincial level and by their struggles both over pay and over the meaning and value of work. The argument is developed through an examination of the major features of the Ontario pay-equity legislation. While many of the de-

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tails are specific to this legislation, there are lessons to be learned that have a much broader application to state legislation in general and pay-equity legislation in particular. COMPLEXITY AND DIFFERENCE

The Ontario Pay Equity Act is a complicated and path-breaking piece of legislation. Like all legislation, it should be understood within a particular historical context. It reflects the efforts of a group known as the Pay Equity Coalition to make the legislation as inclusive and as compulsory as possible. It also reflects employers' attempts to limit the impact of the legislation as much as possible. It is the outcome of both a long struggle by a variety of women's groups and of a particular political and economic situation. In the long history of demands for pay equity, the coalition of unions, community groups, and professional and business organizations that fought for the Ontario pay-equity legislation is a relatively recent phenomenon.11 Formed in 1976, it represents more than a million women and men from widely divergent groups. Members of the Pay Equity Coalition have learned from experience that equal-pay legislation requiring women to find identical or substantially identical work in order to establish inequity had a limited impact on women's pay. The problem was compounded by legislation that required individuals to initiate complaints, that allowed many exclusions, and that provided very small penalties for those few who were found guilty of discrimination.12 The impact was limited because, for the most part, women and men are segregated in terms of jobs and industries, and women's work is consistently paid less than the work of men. It is also limited because employers benefit from women doing women's work at women's wages and thus have little incentive to change their practices.13 The legislation was particularly ineffective in improving the pay for part-time workers and for immigrant or visible-minority women who were concentrated in the private sector, where unions have been either non-existent or inactive on this question. When the Coalition sought new legislation, then, it wanted to ensure that it addressed the segregation of the labour force, the low value attached to women's work, the complexities that allowed for exclusions, the variations among workplaces, and the resistance of employers.14 Although the Coalition had enjoyed some successes in its efforts to work under the old legislation and to work for change through collective agreements, it had been in existence for almost a decade before a particular set of circumstances helped overcome many of the remain-

126 Pat Armstrong

ing barriers to major legislative change. First, the accord that made it possible for the Ontario Liberals to form a government after the 1985 provincial election had the introduction of equal-pay-for-work-ofequal-value legislation as a condition of the New Democratic Party's support. Second, the Ontario economy was in the midst of a boom, making it somewhat easier to make demands on private-sector employers and on public coffers. Third, a number of strong feminists who supported pay-equity legislation were employed in the Women's Directorate of the provincial government, and it was this body which was mandated to chair the Interministerial Task Force on Pay Equity.15 Fourth, a series of rulings under the old legislation, backed by extensive research, had both demonstrated the need for new legislation that went well beyond individual complaints and laid the basis for such legislation by moving towards equal value and collective settlement. The Ontario Pay Equity Act that was introduced in 1987 included many concessions to employer's interests, but it marked a significant departure from existing legislation in responding to Coalition demands. Unlike much of the legislation on pay equity introduced elsewhere, this act applied to both the private and the public sector. The legislation required employers to produce pay-equity plans and to negotiate these with unions where workplaces were unionized, provided major penalties linked to time schedules, included part-time workers and all benefits, called for job evaluation schemes free of gender bias, and established an independent tribunal to oversee the implementation of the act. It clearly stated that the purpose "is to redress systemic gender discrimination in compensation for work performed by employees in female job classes."16 Systemic discrimination implied that, as a consequence of work structures, women shared a common problem in terms of pay. However, the implementation of the act was based on what postmodernists might call local determination. This local determination could mean that political issues are transformed into technical ones and that pay gaps among women increase - a problem that is discussed in greater detail later on in the paper. THE IMPACT OF LOCAL DETERMINATION AND DIFFERENCE

The inclusion of the private as well as the public sector was an important step in ensuring the coverage of all women. But the details of the act mean that the sector of employment could have a significant impact on women's prospects for pay increases. For example, there are important differences with respect to when employers are required to post pay-equity plans and when they are to implement increases. As

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well, there are differences with respect to which employers are covered by the legislation and to what various employers are required to do by the act. All of the public sector was required to post a plan two years after the act came into effect, as were those private-sector employers with more than 500 employees. Employers with between 100 and 500 employees were given three years. Those with more than nine but fewer than 100 employees "may establish pay equity plans for any of the employer's establishments"17 and can take five or six years to do so, depending on their size. If these employers decide not to set up pay equity plans, they are still required to demonstrate how they have determined that a pay-equity plan is not necessary, should a complaint be made. Workers in private-sector firms with more than ten employees must wait longer than public-sector employees for their plans and payments. Women in very small private-sector establishments - estimated at a quarter of a million - are excluded entirely,l8 and many of those in small companies will have to complain in order to even see a plan. Many of those in these smaller workplaces are immigrant and visibleminority women. The act emphasizes local determination of pay-equity plans where they are required. According to the legislation,19 "each employer is responsible for implementing and maintaining the pay equity plan with respect to the employer's employees." Many organizations contract out parts of their work - for example, allocating some of the cleaning to one firm and some of the cooking to another, while hiring employees directly to do a large part of the remaining labour. As a result, women working in the same building, perhaps doing the same kind of job, could find themselves under different pay-equity plans, and some may find themselves with no plan at all because their contracting firm is too small to be covered by the act even though they are employed in a large establishment. Not only are there different plans for different employers, there may also be different plans for each of the employer's establishments if they are located in different "geographic divisions."20 This requirement could mean that employees paid by the same organization but working in different parts of the province could have quite separate and unequal pay-equity plans. It could also mean that by virtue of their geographic location, some quite large employers could avoid the act altogether if each of the establishments in the various geographic regions is too small to be included under the legislation. Within establishments belonging to the same employer, there may also be vast differences in the kinds of awards women receive. According to the act, "pay equity is achieved when the job rate for the female job class that is the subject of the comparison is at least equal to the job

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rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable worth."21 Translated, this means that in order to have their wages raised under the act, women must go through the complicated process outlined below. This process is largely the responsibility of employers in nonunionized firms, although women can complain individually or collectively about the plan to the Pay Equity Commission. In unionized establishments, the process is negotiated for each bargaining unit by the union. In many cases, this means that women are involved in negotiating committees. IMPLEMENTING PAY EQUITY: MAKING A DIFFERENCE

First, women or their representatives must establish that they are members of a female job class. What constitutes a job class may itself be a matter of dispute, given that the legislation defines a job class in terms of positions that "have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates."22 A female job class is one that is at least 60 percent female and is therefore somewhat easier to determine. However, the act allows for other agreements that consider "the historical incumbency of the job class, gender stereotypes of fields of work and such other criteria as may be prescribed by the regulations."23 Next, women must find a male job class that is deemed to be of a least comparable worth. This means finding a job class that is at least 70 percent male or is otherwise determined to be a male job class.24 Then female and male job classes must be compared in terms of "the skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed."25 If there is a bargaining unit, women must first look for a comparable male job within their bargaining unit. Similarly, those outside a bargaining unit must first seek comparators outside any bargaining unit. 26 If none can be found through this procedure, then women can search for other comparable male job classes within the establishment but may not go outside the establishment. If they find a male job class that is of comparable value but is more highly paid, then they can claim the male job rate. If women find more than one comparable male job class, then they either get the lowest job rate for an equally valued male job class or the highest job rate of a male job class that is determined to be of less value than the female job class. If they find no male comparators at all or no male comparators

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that are more highly paid than the female job class, then they are out of luck. Thus, as a result of these complex requirements, some women may find themselves a comparable male job class that is paid more, while others, in the same location, working for the same employer, may find themselves unable to find an appropriate male job class. Those in bargaining units may be better protected by unions willing to challenge old schemes for establishing the value of skill, effort, responsibility, and working conditions or to challenge how establishment, employer, or job class is determined. The Pay Equity Commission has estimated that 867,000 women work in predominately female sectors without male comparators27; under the original legislation, they receive no awards at all. Amendments to the act attempted to address some of the problems created by lack of comparators within an establishment. These amendments allowed women who were employed in female job classes in the public sector and who did not have a comparator in their establishment, to seek a proxy in another public-sector establishment. In other words, they could look to another, similar workplace that did have a comparable job class in a pay-equity plan, and replicate that comparison. Although proxies were not provided for in the private sector, the amendments did allow proportionate comparisons. This meant that it was not necessary to find a strictly comparable male job class in order to gain pay-equity settlements. Instead, those developing the plans could argue for payments on the basis of the percentage of worth relative to a male job class. But these amendments, too, created very complicated requirements. And they still left many women without any comparators or pay-equity setdements, and still meant great differences among those who did receive payments under pay-equity plans. The complex requirements - only some of which have been outlined here - mean not only that differences among women may increase under the act as a result of the uneven coverage but also that the determination of equity awards is so complicated that many women are excluded from even complaining about the implementation because they do no understand the process. The complicated and detailed regulations may transform a political process into a technical one, allowing only those with enough time and expertise to participate in the local determination. The particular consequences of the Ontario Pay Equity Act will depend on the strength and resources of those negotiating with employers, as well as on how the act is interpreted and implemented. This necessarily means that the results will be uneven. Reports on the plans filed suggest that many women with strong negotiators and in loca-

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tions that make them eligible and make it possible to find comparators will see significant gains. But these reports also suggest that differences among women will increase, leaving the weakest even weaker in relative pay terms. Nurses provide just one example of the inequities that can result from the act. Those at the University of Toronto, for example, were able to compare their work to that of professional engineering officers and thus will receive a 45 percent pay hike that will raise their wages to more than $54,000 a year.28 Meanwhile, the non-unionized nurses at Mississauga General Hospital were compared to pastry chefs and did not receive any compensation.29 These nurses will continue to have wages that range from $35,000 to $40,000 a year. According to the president of the Registered Nurses' Association of Ontario, "the Pay Equity process, if anything, is going to enshrine those inequities" affecting nurses. Not surprisingly then, some nurses are fighting to define employer and establishment as broadly as possible in order to find a suitable comparator. A Supreme Court decision has upheld a Pay Equity Tribunal hearing decision that agreed with nurses working for the Region of Haldimand-Norfolk that the municipality was also the employer of the police force.30 This decision means that these nurses can now compare their work to that of the more highly paid police officers, which may mean significant gains for them. Whether or not this means that the definition of employer will be extended to benefit women in any other municipalities remains to be seen. Similar patterns of disparity are evident in pay-equity plans for women who do clerical work. Women who belong to the Ontario Public Service Employees' Union and who do clerical or secretarial work for the government "will get an increase of $1.32 an hour" added to their average $14.70 hourly rate. At the same time, the nonunionized clerical workers at a community college will receive no addition to their maximum rate, which ranges from $10.72 to $11.63 an hour.31 These nurses and clerical workers are all part of the public sector, but the local determination of plans is widening differences among them. The case of day-care workers suggests that the differences between public- and private-sector workers may even increase as a result of the legislation. Child-care workers currently employed by municipalities may make up to twice as much as those employed in private centres. According to the government's pay-equity plan, the child-care workers employed by the province will get more than two dollars an hour as a result of the legislation.32 Meanwhile, almost all private-sector childcare workers may be excluded from benefits under the legislation be-

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cause they work in very small establishments or because they have no male comparators. Many of the women who are employed in the major food chains and who belong to the United Food and Commercial Workers Union have also made significant gains in pay. Cashiers at A&P, for instance, were compared to stock clerks and as a result will see wage increases of $28.26 a week. The women working in the bakeries and at the deli counters in these stores were able to establish that their work was comparable to that of night-crew foremen and, as a result, gained $36.00 a week.33 The large number of women who work in small bakeries, corner deli, and many retail outlets that employ fewer than ten people, however, will not even have a chance to look for comparisons and make claims under the act. Moreover, many in larger establishments will not find male comparators or will not have job-evaluation schemes demonstrating that their jobs are of equivalent worth. The result, as in the case of nurses and clerical workers, will be greater differences among women in terms of pay. The Pay Equity Coalition wanted legislation that would acknowledge that women are paid less than men and would provide a compulsory but "flexible approach permitting a range of bargaining options" to address this inequity.34 The Coalition never spelled out exactly what this flexibility would mean. The legislation that was passed emphasized difference and local determination, in large measure as a result of pressure from employers. This emphasis has laid the basis for increasing disparities among women, even among women doing the same job and paid out of the same coffers and even among those working in the same location. It has, at the same time, excluded many women from the process of negotiation, because the technical details involved overwhelmed many who did not have the time and resources necessary for such a complex task. The Australian experience indicates that minimum wages set by occupation are much more effective in increasing women's wages35 and in decreasing the gap between average male and female wages. The Australian approach also involves much less complex and technical negotiations while recognizing the power struggles that are central to determining pay. The settlement of wages through sectoral bargaining, rather than through the application of complex legislation, means that much more emphasis is put on the politics of equality than on the techniques of measurement. The emphasis on difference, complexity, and local determination, which is more in line with postmodernist thinking, may well serve to further divide women from each other in terms of both pay and participation. It enables employers to pit women against each other and against men while limiting the overall gains for

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workers. If the legislation had carried through on the recognition of the systemic discrimination that keeps women's wages low and had gone on to develop a scheme that applied to all women in particular occupations, it might well have been more effective at raising women's wages in ways that would not have such an uneven impact on women in general. The emphasis on difference is proving to be a doubleedged sword - one that can be readily used against women. THE STRUGGLE OVER M E A N I N G

For many postmodernists, the most important negotiations are those around discourse and meaning. Integral to the battles around the Ontario pay-equity legislation have been struggles over meaning. All legislation involves negotiations over how terms, conditions, and actions are to be understood. But such negotiations have, for the most part, assumed a shared world view - one based primarily on the perspectives of men with a common race and class background. This legislation fundamentally challenges many of those traditional ways of seeing. Some of the battles have centred on how such terms as employer, establishment, job class, and job rate are to be understood. The significance of struggles around these interpretations and of the independence given to the tribunal should not be underestimated. Both the wording of the legislation and the composition of the tribunal have important consequences for negotiations about meaning. Women form the majority of the tribunal's members and each threemember tribunal that hears cases has a member representing employees. The initial rulings of the tribunal suggested that it would not simply be governed by old understandings. As Mary Cornish, lawyer for the Ontario Nurses' Association, said of the decision to extend the meaning of employer in the Haldimand-Norfolk case, the decision supports the Pay Equity Tribunal's intent "to interpret the pay equity act in a broad fashion so the maximum numbers of people benefit."36 The decision of the Tribunal in the case of Women's College Hospital also suggested a significant break with the past. However, unlike the Haldimand-Norfolk case, the decision was not unanimous, and rulings since then have been less-path breaking. But more important in the long term are the struggles over how women's pay and women's work are to be understood and valued. The Pay Equity Coalition won a major victory when the legislation included the "strong introductory statement of principle and philosophy" that the Coalition proposed.37 In stating that the purpose is "to redress systemic gender discrimination in compensation performed by employees in female job classes",38 the act was acknowledging that the labour

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force is segregated and that this segregation is directly linked to women's low pay. Women's low pay was thus defined as a shared rather than an individual problem and as a problem that results from collective discrimination rather than from women's individual capacities and contributions or from individual employers' minority views. The notion of women's shared inequity is further reinforced by the requirement that compensation be paid to women as members of a female job class. This contrasts with legislation, such as employment equity, that begins with the assumption that women collectively face discrimination but seeks to remedy the problem by hiring or promoting individual women. Solutions designed for individual women may serve to divide women from each other and to integrate these individual women more fully into the existing hierarchy. They imply that there is nothing wrong with the structures, just with the allocation of people within those structures. In contrast, solutions that compensate all members of a job class have the potential, at least, to encourage women to work together for structural change. That the act required all large employers to develop a pay-equity plan implied that all employers were assumed to be at least potential discriminators - that is, they were assumed to be guilty until proven innocent.39 This, too, marked an important departure from previous legislation, which assumed that employers did not discriminate against women. An employer was defined as discriminating against women only if one or several women complained and proved that he was guilty. This pro-active legislation shifted the burden of proof and redefined the relationship between employers and employees. Pro-active legislation based on the assumption of systemic discrimination and requiring that women receive compensation by job class brings a new meaning to women's low pay. The implementation of such legislation could allow the problem to be defined as solved, even though many women will see little or no pay increases under the act. But it could also mean that women's pay claims are seen as legitimate and that women could use this as the basis for not only extending the demands for decent pay but also for expanding their claims into other aspects of their work. Many of the current battles over meaning relate to the requirement that employers use "a gender-neutral comparison system"40 when evaluating the skill, effort, responsibility, and working conditions involved in female and male job classes. This requirement opens up the possibility for redefining how work is valued and structured. Of course, this requirement does not necessarily lead to the emergence of new meanings and values. In some cases, gender neutrality is interpreted to mean a more universal application of existing job-evalu-

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ation schemes to all male and female jobs classes. In other cases, it is understood to imply modifications to existing schemes, such as the inclusion of references to female-dominated jobs and of examples of tasks more common to women's work or the avoidance of sexist language. This more careful and universal application of existing evaluation schemes, even in unmodified form, is likely to result in some compensation for women, given the large gaps in male and female wages and the past neglect of the content of women's work. But it is not likely to lead to a redefinition of women's work. Indeed, it may primarily serve to reinforce current values and meanings. This result is likely because most of these job-evaluation schemes have been developed and standardized on male-dominated jobs in the industrial sectors or in managerial positions in the service sector where few women work. In other words, they focus on what men do and are designed to measure what men do. When, for example, a scheme intended to measure the work of those men making cars is applied to the work of women caring for children, much of the work of women may simply disappear. Moreover, they have been designed as management tools, even though some have been negotiated with what are usually male-dominated unions. Thus if management has traditionally paid women low wages or traditionally rewarded men who garden more than women who type, the job-evaluation schemes are likely to justify these wages rather than challenge them. The existing job-evaluation schemes reflect the content and structure of those male jobs as well as those methods of organizing work. And they reflect values that are more the result of power struggles over the worth of male-dominated work than they are the result of some universal and objectively determined components of jobs. In other words, job-evaluation schemes are not simply a measurement of job components that have some universally agreed-upon worth.41 They embody negotiated values based on power relations and indicate the worth attached to what men do. They are also more likely to replicate the value attached to work in the private, goods-producing sector, where men dominate, than they are to assess adequately the services provided in the public sector, where women predominate. Thus the more universal application of old schemes may help to indicate how much of women's work is like men's work, and pay them for what is similar. But given the segregation of the labour force, it is unlikely to lead to a re-evaluation of what most women do. If this is the case, the implementation of the Ontario Pay Equity Act will not take us much beyond the equal-pay-for-equal-work legislation while implying that it does much more.

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Recognizing the values built into current job-evaluations schemes and backed by enough resources to mount a challenge, some women have begun to use the legislation to transform the way skill, effort, responsibility, and working conditions are evaluated. The Ontario Nurses' Association (ONA), for example, has argued before the hearings tribunal that the comparison system and methodology proposed by Women's College Hospital "is gender-biased in its structure and design and cannot properly capture the job content of employees."42 As it did in making a similar claim with regard to the scheme proposed by the Region of Haldimand-Norfolk, the Association maintains that the job-evaluation scheme is biased in terms of what is captured, how it is captured, and how what is captured is evaluated. As ONA has establishing through its cases, in current job-evaluation schemes much of the skill, effort, responsibility, and working conditions central to many women's jobs remains invisible. The emphasis on discrete tasks makes it impossible to capture the overlapping and complex nature of women's skills or the caring that is a continuous part of many women's jobs. While the effort involved in lifting objects is recorded, that involved in convincing an elderly patient or a child to eat is not. Responsibility for money, goods, and supervising those lower on the formal hierarchy gets evaluated, yet cooperating and coordinating work with others and taking actual, as opposed to official, responsibility for people is usually ignored. The stress created by working outdoors or in excessive heat is often counted but the stress of working with dying patients or demanding children does not get counted. Capturing these aspects of women's work, ONA has pointed out, requires a fundamental rethinking of how job evaluations are structured and carried out. Modelled on male work and hierarchical structures, the job-evaluation schemes in use do not employ methods designed to reveal the invisible aspects of many women's work. Because both women and men have learned to think in terms of male models of work, capturing the content of women's work would require much more than adding new examples or removing sexists language. Current schemes have not been designed to have women or men think in alternative ways about what constitutes skill, effort, or responsibility, or what constitutes difficult working conditions. Even when aspects that are most common in women's work are captured, they are seldom highly valued. Responsibility for money is more highly valued than caring for people. Garbage removal is considered more onerous than cleaning dirty diapers; police work, more dangerous than dressing the wounds of patients with contagious diseases. As contentious as the question of what is captured in evaluation schemes is how what is captured gets evaluated. These women are not only

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fighting to expose the extensive skills, effort, and responsibilities, and onerous working conditions involved in their work. They are also seeking to define these as valuable. This struggle over the gender bias of job-evaluations schemes is really a struggle over the meaning and value of women's work. But in order to negotiate this new meaning, women must establish links to actual activities and demonstrate that the job characteristics that they describe are common to many women's jobs. Postmodernists have drawn our attention to the importance of the struggle over meaning. But they have also cautioned against focusing on women as a sex. Yet it may well be that the emphasis on defining the problems women face as collective ones created by systemic discrimination proves the most useful in women's long-term efforts to improve their conditions of work. The struggle over meaning that the postmodernists recommend is also a struggle over defining what women share in their daily work activities - a process that contradicts the postmodernist emphasis on difference. It could lead to better pay for women under the pay-equity legislation. It could also have a much longer-term and more pervasive effect if women's work is redefined. But in order to have a much more widespread impact, this new meaning will have to go beyond the hearing rooms of the Pay Equity Tribunal, beyond a struggle over language among a few, and will have to be translated in concrete ways into jobevaluations schemes as well as into shared meanings. CONCLUSION

The Ontario legislation, as the Pay Equity Coalition has pointed out, is not a panacea. The impact may well have contradictory consequences for women.43 The long- and short-term consequences will depend, to a large extent, on how the legislation is applied and interpreted. This in turn, will reflect women's collective efforts to transform the meaning attached to their work and to extend the coverage of the act to as many women as possible. Certainly it is important, as the postmodernists make clear, to struggle over meaning and language. Such struggles can help to transform both how we think and how women are paid. But in order to be effective in changing women's conditions, this struggle needs to be connected to actual activities and often to activities that are common to many women. Emphasis on meaning can have a long-term impact on women's efforts to improve their conditions only if the struggles are successful in ensuring that these meanings are widely shared. And while it is important, as postmodernists argue, to recognize complexity and difference, strategies intended to improve women's

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conditions involve thinking not only in terms of how women differ but also in terms of what they share. Emphasizing difference can serve, as is the case with the Ontario Pay Equity Act, to increase differences among women. At the same time, the legislation is based on an assumption of systemic discrimination that happens to women as a sex; and the success of the legislation, limited though it may be, can be attributed mainly to this assumption. While the results are inevitably contradictory and uneven, it could be argued that some of the greatest gains for women collectively and individually have come from the state's intervening on behalf of women or of groups of women. This is becoming increasingly evident as states more often use a stress on difference and individual choice as a justification for withdrawing from traditional welfare-state programs. The pay-equity legislation in Ontario can be seen as one of the last gasps of a welfare state prepared to recognize both systemic inequality that has an impact on women as a group and the responsibility of the state to intervene on their behalf. It has improved the wages of many women and transformed the attitudes of many others, even though it has not served to end wage inequality between women and men or among women. There is much to be learned through the examination of particular legislation, as Michael Bliss made clear, about the more general implications for both theory and practice of state intervention. But the lessons are not worth learning unless we recognize that the participants come with a variety of identities and attach a variety of meanings to the process. However, it is also necessary to recognize that an emphasis on difference and meaning is not without its own contradictions for women and can serve to work against women, especially in terms of the welfare state.

CHAPTER TWELVE

Pay Equity in Quebec MARIE MURPHY

Marie Murphy analyse la situation de 1'equite salariale au Quebec en 1990. Bien que les syndicate aient remporte un certains succes a ce chapitre, elle est d'avis qu'il faut adopter une loi pro-active dans ce domaine et appuie sa proposition sur deux exemples concrets.

When I was first asked to speak to you, I was hesitant to do so, since I do not consider myself in any way to be an expert on the question of pay equity, nor have I done any work specifically on this issue over the past few years. It was suggested to me, however, that my professional experience - which includes twelve years with the Quebec Human Rights Commission, a stint in private practice, and a return to government service as a teacher of law to future police officers at John Abbott College - as well as my work over many years as a consultant for Action Travail des Femmes, the well-known blue-collar women's group located in Montreal, would give me some perspective on the present topic. We shall see! My aim here is to bring you up to date on the issue of pay equity in Quebec and to raise some questions about how pay equity will be implemented in the future. In researching the question of pay equity I discovered that the concept of equal pay had advanced less than I thought. The Canadian Periodical Index entry for "Pay Equity" refers the searcher to "Equal Pay for Equal Work." However, pay equity is concerned with much more than getting the same pay for doing the same job: pay equity has to do with getting the same pay for work that requires the same qualifications, effort, responsibilities, and working conditions. Under the equal-pay-forequal-work system, a librarian, for example, could never claim that she

139 Pa7 Equity in Quebec should receive the same pay as a history researcher, but under the payequity system, such claims have been made and accepted, and salaries have been adjusted as a result. What I intend to do here is to discuss the pressing need for pro-active pay-equity legislation in Quebec, in view of the judicial interpretation of the Quebec Charter of Rights and Liberties that was given in 1989 by the Court of Appeal in The City of Quebec v. The Quebec Human Rights Commission. When the Quebec Charter was adopted in the mid-1970s, humanrights advocates were especially pleased with the wording of section 19 of that document. Unlike similar instruments in other jurisdictions that referred to "equal pay for equal work," section 19 required that all employers pay the same salary to those who performed "equivalent" work in the same establishment. The magic word "equivalent" was seen as an open door for judicial decisions that would grant pay equity to women-dominated job sectors, thereby achieving parity with maledominated categories characterized by similar qualifications, effort, skills, and working conditions. In addition, section 19 applied to all cases of discrimination. It was not limited to cases involving sex; nothing, therefore, prohibited members of visible minorities, cultural communities, or other protected groups from making complaints on the basis of pay-equity considerations. The economists and sociologists in the Human Rights Commissions's research department did not waste any time developing and publishing research documents devoted to job-evaluation methods that would be devoid of any discriminatory component and would facilitate the investigation of pay-equity cases. The first major equal-pay case to go before the courts was one involving five "matrons" working in the prisons of the city of Quebec. Matrons had been employed to watch female inmates in the city's prisons since 1952. They wore uniforms similar to those of police officers, and their work consisted of performing searches, taking prisoners to cells, and accompanying them when brought before the courts, to prisons, or to hospitals. Matrons sometimes accompanied detectives in their investigations when it was anticipated that women suspects might have to be searched for drugs or arms. They took fingerprints and photos of women who were detained. In fact, they performed the same functions as male guards, who were paid about 30 percent more. The only difference was that all the male guards were full-fledged police officers, trained at the police academy. Over the years, it had become customary to hire as cell guards police officers whose physical condition or health rendered them less apt to perform the more demanding activities of regular officers. Their col-

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lective agreement required that when an officer was partially disabled in some way, he had the right of first refusal regarding jobs, other than regular active duty, whose requirements matched his qualifications. Aside from cell guards, other positions available under these terms were those of information officer, telecommunication operator, officer in charge of issuing warrants, and the like. In effect, the City of Quebec case did not even concern the pay-equity issue: it was a simple case of equal pay for equal work. The Superior Court decided that there was discrimination and concluded that because of the discriminatory effect of what might have been a neutral, good-faith policy, the salaries of matrons should be the same as those of police officers. The Court of Appeal, with Justice Jacques dissenting, concluded, on the other hand, that there was no discrimination.l After reviewing the jurisprudence, which establishes clearly that there is no need to prove discriminatory intent, the Court went on to say that it is nevertheless necessary to show that sex was the efficient cause of the discrimination. This Aristotelian piece of logic led the Court to reason that in order to appreciate objectively the motivation behind unequal salaries, it was necessary to go back to the time when the matron position was created. One could then see that police officers already performed cell-guard duties at the time but that sensitivity to public morality made it necessary to create a post whereby women would watch and search female detainees as needed. The Court correctly pointed out that the new sex-specific cell-guard post was not created to save money but to insure that women were in charge of women. With impeccable logic, the Court concluded that since there were no women police officers in 1952 to provide this important service, public morality required that a post be created. To support this argument based on public morality and on a woman's implicit right to privacy, the Court noted that section 26 of the Quebec Charter specifically stated that all detained persons have the right to a distinct regime that is appropriate to their sex, age, and physical or mental condition. This section of the Charter, which turned out to be an ex-post facto approval of the city's long-standing public morals policy, legitimated and legalized the salary discrimination criticized by the plaintiffs. Thus it was the desire to protect public morality that was the efficient cause of discrimination and not sex. In other words, it was section 26 of the Quebec Charter that was at fault, not the city of Quebec. Case dismissed! I call it the bizarre case of the culprit Charter. The Court of Appeal's decision was based on a patently absurd reasoning, and it was compounded by the Supreme Court's refusal to hear the case. As a result, that decision is the law in Quebec. It is not difficult to imagine the great disappointment felt by pay-equity advo-

141 Pay Equity in Quebec cates, as the Court's decision had a paralyzing impact on further activism in that area: if equal pay for equal work is not recognized, the courts are unlikely to acknowledge parity in job categories that are dissimilar. Another very disappointing equity case was decided in 1989, this time by the Supreme Court of Canada.2 This was a true "equivalence" case, involving workers in the performing-arts industry. The plaintiffs claimed that the predominantly male union workers who designed and built sets were paid more than the predominantly female workers who designed and made costumes. They also complained that those employees who worked in the make-up section were paid less than those involved in work of equivalent value. In a four-to-two decision, the Court held that when the Human Rights Commission concluded, on the basis of an investigator's report, that the positions used in the comparison did not constitute work of equal value, the Commission was not obliged to disclose the legal basis for its decision but only the factual basis. Without going into the substance of the case, it is worth noting that the two dissenting justices were the only women who took part in the decision. Justice L'Heureux-Dube, in a decision with which Madam Justice Wilson concurred, pointed out repeatedly that all steps in a jobevaluation plan involve a measure of subjectivity and that the social beliefs that have traditionally led to the undervaluing of women's work may bring a certain measure of bias in the design and application of job-evaluation criteria. She concluded that parties should be able to question both the factual and legal basis of its decisions: The concept of equal value is central to the statutory prohibition against wage discrimination. At the same time, the evaluation of the worth of work is extremely delicate being as it is inherently subjected to individual bias and sexual stereotyping. In these circumstances, fairness requires that the job evaluation process be subjected to the purifying effect of the adversarial process. The vulnerability of the job evaluation plan method to individual bias and sexual stereotyping is best minimized by allowing the parties concerned an opportunity to tailor the elements of the testing to the special circumstances of each particular case. The Commission is accordingly under a duty to disclose to the parties concerned how it proposes to interpret the statutory principle of equal pay for work of equal value. Further, the parties concerned must be allowed to make an informed response to the Commission's interpretation and to urge upon it their own interpretation of the law.3 I believe that in this case, the two women justices showed greater sensitivity than their male colleagues to the fact that job evaluation is a

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process fraught with problems, raising questions, in particular, about the reliability of the evaluation process itself and of the administrative use of multiple job-evaluation systems for different sets of jobs. One of the biggest impediments to pay equity for women is the inadequacy of current measurement systems. As previously stated, I am not a payequity expert, but I think anyone will recognize the complexity of the issues raised by Justices L'Heureux-Dube and Wilson. For this reason, I applaud their dissenting opinion; had it been the majority opinion, it would have allowed the plaintiffs to have a hearing, oral or written, which would have given them an effective means of advancing their own interpretation of the appropriate legal standards to be applied before any pay-equity investigation proceeded. Although the Supreme Court's majority opinion does not require it, there is nothing to prevent the Commission from adopting the criteria set out by Justices L'Heureux-Dube and Wilson, and it would be in the interests of women's groups to encourage the Commission to do so. My approach up to this point has been strictly legal, but I would now like to look at the political dimension of the issue by stepping back into the "real world." In March 1989, the question of pay equity in Quebec was addressed at a conference organized by the YWCA in Montreal, the proceedings of which were published later that year.4 Almost immediately after the conference, forty groups sprang up to prepare pro-active legislation. In May 1990, these groups declared themselves to be the Equal Pay Coalition. The Coalition includes all the important unions in the province, and about thirty women's organizations. Aside from assiduously studying the pay-equity legislation in other provinces and throughout the world in order to make recommendations of its own, the Coalition researched some issues that did not seem to have been addressed elsewhere. As you know, one of the problems with pay equity is that those in greatest need are unable to secure pay-equity gains, either because the employer is too small to be subject to the legislation or because there are no no male groups with which these women's jobs can be compared. As a result, the Coalition considered the possibility of applying pro-active legislation to all employers in the public and private sectors, irrespective of their size.5 It also considered the possibility of looking outside women's immediate job market to find comparable positions. If, for example, there were no male equivalents to day-care workers in the private sector, there may be posts in the social affairs or education sectors that can be used for comparison and pay-parity purposes. In pointing out the problems that exist in the absence of pro-active legislation, I do not mean to imply that nothing has been done in this

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PaY Equity in Quebec

area in Quebec. Unions across the province have been negotiating pay-equity issues with success. Le Devoir reported on i May 1990 that the city of Montreal and the Montreal Urban Community had signed a pay-equity agreement with the Canadian Union of Public Employees, based on section 19 of the Quebec Charter, after more than a year of white-collar negotiations.6 Women's salaries were raised by between 6 percent and 40 percent. The parties agreed to a new job-evaluation system that assigns greater value to what has traditionally been considered "women's work." Le Devoir reported that the hourly wage for steno-typist rose from $14.44 an h°ur to $20.30 an hour (a 40.5 percent increase) and that of regular typist went from $13.10 an hour to $17.22 an hour (a 31.5 percent increase). This agreement affected over 7,000 city workers. One other example among many is a recent agreement signed between the Federation du travail du Quebec and the Quebec government regarding the criteria to be used in job evaluations. Women's experience at home will be considered in evaluating occupations such as seamstress, student guard, pediatric worker, etc. (It appears we still have to wait for it to be considered as management experience.) The working conditions of those who deal with the public will be recognized, as will those of workers exposed to difficult conditions such as excessive noise, the risks involved in exposure to sterilization procedures in hospitals, and work at great heights. Concentration, sensory awareness, dexterity, mental integrity, psychic environment, and work rhythm are all to be considered in the future. It was explicitly pointed out that the new evaluations were constructed so as to redress evaluation standards for work that had traditionally been considered "reserved for women." In closing, I would like to say that we have all seen a big change since the early 19708, when we believed that the word discrimination could not be used unless we could prove that employers intended explicitly to exclude women or to treat them as second-class citizens. The Supreme Court and legislators throughout the country have confirmed that systemic discrimination can exist where a good-faith employer is applying "neutral" standards. In my classroom, where close to 25 percent of the students training to be police officers are women, I could believe that we have come a long way. But I know that these students, when they get into the field, will not feel that they are being treated equally until the day that the police officers' union sets up a committee to deal with status-of-women issues in the context of police work. I know that without day care these students will be forced to leave their jobs, will miss out on experience and seniority benefits, and without promotion lines open to them, will once again show up in statistics as

144 Marie Murphy

being paid less than their male counterparts. I also know that these issues will not be considered, let alone dealt with, until my female students participate in union activities at the executive level. Affirmative action, day care, and pay equity must go hand in hand if the wage gap is ever to narrow. One final note. The Quebec Court of Appeal's narrow effort to find the "efficient cause" of discrimination in the case of the Quebec prison matrons is similar to that of the physician looking for the "efficient cause" of a nervous breakdown. Was it the marital breakdown? Was it the two jobs? Was it the lack of three square meals? Was it the children's failures or emotional problems? Was it the addiction to Valium that was taken on doctor's prescription? Systemic discrimination does not have "efficient causes." It has multi-layered, complex causes, and they must be dealt with on multiple levels with parallel and alternative remedying methods.

CHAPITRE TREIZE

Les services feministes de Vantietatisme a Vintegration subsidiaire DIANE LAMOUREUX

The report of the Royal Commission referred to violence against women only in the context of grounds for divorce. Diane Lamoureux reviews the movement against conjugal violence and the manner in which the shelter movement has been coopted into the state apparatus, and examines the impact of these developments on shelters and shelter workers.

La publication du rapport de la Commission royale d'enquete sur la situation de la femme au Canada en 1970 obligeait la societe canadienne a prendre conscience du fait qu'en plus des inegalites liees a 1'appartenance nationale mises en lumiere quelques annees plus tot par la Commission Laurendeau-Dunton, elle etait egalement traversee par des inegalites liees au sexe des personnes. Une breche de plus dans le miroir de la « societe juste » qui constituait le credo politique du pouvoir d'alors. Ce qui est interessant dans ces deux rapports, dans lesquels se reflete 1'esprit des annees 60, c'est qu'ils ont etc, pour des raisons diverses, a 1'origine de mouvements sociaux importants. Loin de clore le debat sur les questions qu'ils avaient a analyser, ils ont permis de rationaliser en termes politiques des impressions diffuses et ont fourni la matrice a partir de laquelle des mouvements radicaux de critique sociale ont pu se developper. Ce dont il sera question dans le present texte, ce sont les groupes que la Commission qualifiait de « cellules du Mouvement de liberation des femmes » et qu'elle caracterisait comme etant « non seulement reformistes mais parfois revolutionnaires dans leurs objectifs, et preconisant des metamorphoses radicales des fonctions du mariage et de la familleV Plus particulierement, j'essaierai de mettre en lumiere com-

146 Diane Lamoureux ment le mouvement de denonciation de la violence conjugate a debouche sur les maisons d'hebergement pour femmes victimes de violence et comment ces maisons ont peu a peu etc integrees de facon subsidiaire a 1'appareil d'Etat. Mais avant de passer a cette analyse, je me pencherai sur 1'optique generate du rapport de la Commission pour expliquer 1'absence de mention de la violence conjugate (sauf comme motif de divorce2). UNE V I S I O N NON C O N F L I C TUE LLE DE LA F A M I L L E

Lorsqu'on relit, vingt ans plus tard, le rapport de la Commission Bird, sa logique nous apparait particulierement marquee par les idees de Betty Friedan qui, dans Lafemme mystifiee, avait developpe une conception de la liberation des femmes fondee a la fois sur 1'abolition des formes juridiques evidentes de la discrimination - reprenant ainsi la riche tradition des mouvements pour 1'egalite civique qui deboucheront, durant les annees 70, sur le mouvement autour de YEqual Rights Amendment — et sur une appreciation d'abord et avant tout financiere de 1'autonomie des femmes, comme en temoigne 1'epilogue de 1'edition francaise de 1978, ou Friedan souligne que «1'egalite et la dignite humaine ne seront pas possibles pour les femmes tant qu'elles ne seront pas capables de gagner leur vie3». On retrouve ces memes elements dans le rapport de la Commission, qui preconise 1'abolition du « deux poids, deux mesures » juridique et prevoit done un travail de « desexisation legislative » pouvant alter jusqu'a des mesures de redressement necessitant le recours a Faction positive4. De plus, le rapport est construit selon une logique qui mesure 1'emancipation des femmes a leur possibilite de participation au marche du travail remunere. C'est dans cette perspective globale que la Commission aborde la question de la famille dans le chapitre 4 de son rapport, en plagant en exergue 1'article 16 de la Declaration universelle des droits de I'homme, selon lequel «la famille est 1'element naturel et fondamental de la societe5». Certes, la Commission a la prudence de signaler qu'il y a des points de vue divergents sur la famille; elle fait meme etat des analyses feministes radicates qui « ont pretendu que les femmes ont etc litteralement exploitees au cours des siecles et que seule une revolution peut remedier a cet etat de chose », cette revolution signifiant « qu'il faut absolument supprimer la famille nucleaire actuelle6». Cependant, la Commission ne peut s'empecher de conclure que la famille continuera d'exister puisque les specialistes de sciences sociales ne connaissent «aucune civilisation qui ait reussi pendant longtemps a faire disparaitre la famille ou a la remplacer7». Les incertitudes qui traver-

147 Les services feministes

sent 1'institution familiale sont done abordees sous Tangle des relations juridiques entre les epoux, celui des rapports parents/enfants et celui du travail a 1'exterieur du foyer des femmes mariees. L'idee que la famille puisse constituer un lieu de conflit, ou se manifeste 1'antagonisme social entre les sexes ne semble pas avoir effleure les membres de la Commission. Dans une telle perspective, il n'y a done pas lieu de s'etonner du fait que la violence conjugate n'a pas figure au nombre de ses preoccupations. En tant qu'institution naturelle, la famille ne pouvait etre remise en question et les risques encourus par les femmes dans les rapports conjugaux ne pouvaient etre mis en lumiere. On peut tout au plus supposer que la Commission partageait 1'opinion largement repandue que la violence conjugale constituait un trait psychologique propre a certains individus, trait certes regrettable, mais qu'il n'etait pas du ressort des pouvoirs publics d'intervenir dans les rapports interindividuels. II ne faudrait pas non plus oublier que 1'epoque etait celle du « bill omnibus », qui incarnait en quelque sorte le principe voulant que 1'Etat n'avait pas a se meler de ce qui se passait dans les chambres a coucher de ses citoyens. C'est aux luttes feministes des annees a venir qu'il appartiendra de demontrer que «le personnel est politique ». AUTONOMIE FEMINISTS ET POLITISATION DU PERSONNEL

Comparativement a ce qui s'est passe dans les autres societes nordamericaines, 1'apparition des pratiques de service au sein du feminisrne quebecois a ete relativement tardive. Jusqu'au milieu des annees 70, le feminisme quebecois a en effet ete tres marque par la pensee de gauche et son projet politique etait essentiellement constitue de revendications tournees vers 1'avenir plutot que de modes d'intervention pratique sur le present. Au nom d'un projet revolutionnaire, les feministes d'alors ont eu tendance a disqualifier rapidement, sous pretexte de reformisme, tout amenagement social qui ne reposait pas sur le renversement des structures existantes. Par ailleurs, leur vision de la liberation des femmes etait intimement associee a la construction d'une societe socialiste qui fournirait les prerequis, necessaires mais non suffisants, pour une veritable egalite entre les categories sociales de sexe8. Ce n'est qu'a partir du moment ou se structure une composante feministe radicale9 a 1'interieur du feminisme quebecois (ce que nous pouvons, grosso modo, faire coiincider avec la parution du journal Les tetes de pioche) qu'une diversification des preoccupations et des pratiques est rendue possible. Alors que le feminisme de la premiere moitie

148 Diane Lamoureux

des annees 70 se structure fondamentalement autour de la notion d'egalite, 1'apparition du feminisme radical va entrainer une plus grande insistance sur la notion d'autonomie. Cette autonomie se developpe simultanement sur plusieurs plans. Je laisse ici de cote le plan organisationnel (non-mixite des groupes et independance par rapport aux groupes mixtes), qui constituait deja un «acquis» depuis 1969. Ce qui m'interesse tout particulierement, etant donne la problematique que je compte developper ici, c'est 1'autonomie politique et programmatique. Ce que cela implique, c'est a la fois le cote autosuffisant du mouvement, dans le sens ou la lutte des femmes n'a pas a se referer a aucune autre et est pleinement signifiante en elle-meme, et la possibilite pour les femmes de definir comme elles 1'entendent, sans en referer automatiquement a d'autres problematiques sociales, le contenu de leur lutte. C'est la un aspect crucial des conceptions autonomistes du politique, aspect commun a 1'ensemble de ce qu'on a qualifie de «nouveaux mouvements sociaux10». Le monde politique et 1'action politique n'y sont pas pergus comme organises par une seule logique sociale; le pouvoir y apparait comme un lieu vide ou plus exactement comme suffisamment decentralise pour ne pas pouvoir etre conquis par un acte unique ni obeir a une seule logique. Bref, la pensee politique autonomiste table sur 1'heterogeneite du social et, par consequent, sur la multiplicite des lieux et des temps d'intervention. A partir du moment ou 1'accent est mis sur 1'heterogeneite, cela permet deux mutations majeures au sein des pratiques feministes. D'une part, la priorite ne porte plus sur un projet d'avenir mais sur une subversion du present. II s'agit de commencer a construire, sans attendre le grand soir, ces lendemains qui chantent et de refuser de poser comme prealables des changements de structures dont on ne sait trop quand ils surviendront. D'autre part, cela implique de traquer le pouvoir dans toutes ses manifestations, y compris les plus infimes et les plus intimes, et d'entreprendre de changer la vie maintenant. Dans ce sens, le feminisme radical constitue effectivement un reformisme radical, puisqu'il poursuit radicalement des reformes sociales11. L'autonomie implique egalement un type de rapport particulier entre la theorie et la pratique. Contrairement a la conception usuelle, le feminisme tire justement sa radicalite du fait qu'il ne precede pas d'une theorie forclose. Comme le soulignait deja Christine Delphy, decouvrir 1'oppression quelque part ne temoigne que de son existence, mais non pas de son etendue ni de sa profondeur, ce qui 1'amenait a preciser que «la lutte feministe consiste autant a decouvrir les oppressions inconnues, a voir 1'oppression la ou on ne la voyait pas, qu'a lutter centre les oppressions connues 12 ».

149 Les services feministes

Ainsi, la question des femrnes battues, qui n'avait pas etc envisagee au debut de la derniere vague feministe, est devenue une question lancinante a partir du moment ou la pratique de 1'autoconscience (consciousness raising) a demontre que c'etait la une experience partagee par un nombre significatif de femmes. La multiplication de situations individuelles a, dans ce cas, fait prendre conscience qu'il y avail peutetre un enjeu social sous-jacent a ce «vecu». A partir de ce moment, 1'attention analytique a pu se tourner vers 1'apprehension de la violence dans les rapports sociaux de sexe et vers les solutions qui pouvaient y etre apportees. De la meme facon qu'il existe une heterogeneite du social, il y a de multiples facons de problematiser une question mais surtout, la problematisation ne doit pas enclore le champ de la reflexion et laisser la voie libre a des derapages et des digressions qui constituent souvent le lieu de la creation. Dans se sens, la theorie est amenee a se construire au fur et a mesure que les pratiques se developpent puisque, a travers les pratiques, ce sont des aspects insoupconnes d'un probleme qui emergent, ce sont des liens, qui n'apparaissaient pas toujours a 1'analyse abstraite, qui s'imposent a I'esprit. C'est dans ce contexte que nous devons situer le developpement de maisons d'hebergement pour femmes battues animees par des feministes. Pour celles qui s'y sont engagees, de telles pratiques correspondaient a la fois a une experimentation de rapports sociaux differents et a une volonte d'imposer une rupture radicale par rapport au traintrain quotidien. Sans attendre que la societe en vienne a reconnaitre que la violence contre les femmes constitue un probleme social et non un trait de comportement individuel, il s'agissait pour ces militantes d'imposer simultanement leur problematisation sociale et d'offrir des alternatives aux femmes afm qu'elles puissent se sortir du cercle vicieux de la victimisation. Cette double dimension n'est pas anodine. On a beaucoup insiste, dans la recente vague feministe, a travers le slogan «le personnel est politique», sur le fait que nombre de situations auxquelles sont confrontees les femmes ne resultent pas de rapports interpersonnels mais plutot de rapports sociaux de sexe. Construire des alternatives sociales vis-a-vis de ce qui etait alors percu comme des comportements individuels, c'etait done imposer dans la realite des pratiques sociales une partie de ce qui etait suppose par le slogan. En meme temps, cela repondait a un imperatif de changer la vie des maintenant, sans attendre que des solutions acceptables se degagent du consensus social. Bref, il s'agissait de creer des ilots d'emancipation et d'experimentation sociale. Ces pratiques de service ont permis d'accroitre de facon importante la diffusion des thematiques feministes. Longtemps cantonne a un

150 Diane Lamoureux

mouvement d'idees et a une bataille ideologique, le feminisme allait enfin pouvoir, par des pratiques effectives, rejoindre la masse des fernmes. Et c'est exactement ce qui s'est passe. Les services ont rendu possible la jonction entre un certain discours feministe et la realite quotidienne de bon nombre de femmes. Les feministes allaient finalement pouvoir faire la preuve que la « condition feminine » n'est pas un donne immuable mais un produit social, susceptible done de faire 1'objet d'un nouveau contrat. Cependant, cette jonction s'est operee dans un contexte ou le mouvement etait en pleine expansion, ou ses terrains d'intervention se multipliaient et ou son action se deployait au moins sur un double registre: d'un cote, des pratiques permettant d'experimenter des a present des realites sociales nouvelles; de 1'autre, des revendications politiques qui se poursuivaient sur le terrain institutionnel et ne perdaient pas de vue les dynamiques sociales d'ensemble. La mise sur pied des services survient done a un moment ou le feminisme tant sur le plan theorique que sur le plan pratique connait un essor important. Ce n'est qu'un des moyens utilise par le mouvement pour s'incarner socialement. De plus, la dynamique revendicative est indissociable de la prestation de services. Rapidement, cependant, les services allaient engendrer leurs propres contradictions et imposer des problematiques de plus en plus detachees de 1'autonomie pour se concentrer sur la gestion, qui se situe inexorablement dans le mode de la repetition. LE F R A C T I O N N E M E N T DU M O N O POLE ETATIQUE EN MATIERE DE PROVIDENCE SOCIALE

Des leur mise sur pied, les maisons d'hebergement pour femmes battues ont etc en contact avec 1'appareil d'Etat, a la fois pour des motifs financiers et pour la coordination de leurs interventions avec la justice et les services sociaux etatiques13. Ces contacts ont cree une situation ambigue: 1'Etat finance partiellement les maisons d'hebergement, des contacts ont etc institue avec 1'appareil judiciaire, principalement en ce qui concerne les corps policiers, et une certaine complementarite s'est developpee entre les ressources des Centres locaux de services communautaires (CLSC) et celles des maisons d'hebergement. Cependant, cette collaboration a un prix, soit la volonte de controle14 et la menace qui pese sur 1'autonomie des pratiques feministes dans ce domaine. Ce n'est un secret pour personne que la plupart des services emanant des luttes sociales dependent, pour leur financement, de subventions versees par divers paliers de gouvernement15. Or, ces subventions

151 Les services feministes

se caracterisent, d'une part, par la multiplicite des programmes et des elements subventionnables dans le cadre de chacun des programmes, et, d'autre part, par le caractere episodique des subventions. Voyons ce que cela signifie concretement. La politique de subventions periodiques et non necessairement consecutives entraine des hauts et des bas dans les disponibilites flnancieres des groupes et, surtout, une incapacite de prevoir a long terme. Grosso modo, de six mois en six mois, les groupes ne savent ni s'ils recevront un financement adequat, ni quelles seront les depenses admissibles dans les programmes qui existeront encore. Dans un tel contexte, ou bien la dispensation de services releve du benevolat, ou bien elle est un emploi qu'on doit souvent combiner a d'autres. Dans tous les cas, cette situation introduit des clivages dans les collectifs initiateurs de telles pratiques. Deux types de clivage se remarquent dans tous les cas. D'abord, celui qui existe entre les salariees dans le cadre du projet et celles qui ne le sont pas. La salarisation de certaines entraine souvent un fonctionnement a deux vitesses des collectifs - la vitesse des permanentes, qui vivent quotidiennement 1'aspect service, et celle des benevoles, qui doivent combiner leur participation a la pratique de service avec un emploi remunere. Les disponibilites temporelles et les ressources financieres des deux types de militantes impliquees dans le projet varient done considerablement. Le second clivage concerne le rapport entre les « pratiques » et les «politiques». II y a tout un monde entre 1'analyse politico-sociale de la problematique des femmes battues, par exemple, et les solutions possibles pour les femmes concretes qui aboutissent a la maison d'hebergement feministe. Quel aspect est privilegie dans le travail du collectif - la volonte d'enrayer la violence contre les femmes au niveau societal ou la recherche de solutions, aussi ponctuelles et partielles soient-elles, realisables a court terme? Le fmancement au compte-goutte a de plus pour effet de concentrer 1'energie des militantes sur la survie financiere plutot que sur la poursuite de 1'analyse et de son approfondissement. Ainsi, 1'Etat peut se prevaloir de plusieurs avantages en echange d'une contribution financiere minimale. D'abord, s'opere une relative deradicalisation des pratiques feministes16 puisque la survie du « service » tend a primer, ce qui implique certaines concessions a la logique etatique. Ensuite, les couts d'operation d'un service parallele aux services etatiques sont beaucoup moindres - moins de beton, des salaires moins eleves, pas de charges sociales ni de securite d'emploi, et possibilite de recours au benevolat et au fmancement public. Enfin, 1'existence meme du service equivaut a appliquer un cataplasme qui empeche que les besoins deviennent trop criants sur la scene publique.

152 Diane Lamoureux

La deuxieme question qui surgit dans la pratique des services est celle de la professionnalisation. Elle se fait sentir principalement sous deux aspects. Le premier, c'est que le theme de la lutte devient un emploi. Grace aux pratiques de service, plusieurs militantes se sont trouve du travail. En soi, personne ne songerait a le leur reprocher, mais le fait que le militantisme devienne une facon de gagner se vie n'est pas sans faire surgir un certain nombre de problemes. D'abord, cela accroit la course aux subventions puisqu'on tente a la fois de maintenir les emplois et d'assurer de meilleures conditions de travail a celles qui les occupent1"7 - la defense du service et la justification sociale de sa necessite deviennent done en partie une defense de 1'emploi. De plus, cela entraine le glissement vers une logique instrumentale prenant le visage de 1'efficacite. Le service, de moyen qu'il etait dans une problematique sociale de lutte feministe, a tendance a devenir une fin en soi18. Or, qu'est-ce qui garantit qu'un centre d'hebergement pour femmes battues est la meilleure solution possible a la violence conjugale? L'efficacite a egalement tendance a prendre la forme d'une qualification professionnelle au sens traditionnel du terme (les diplomes appropries) des femmes qui travaillent dans les pratiques de service. Cela introduit une similitude de formation entre celles qui travaillent dans les services feministes et celles qui ceuvrent dans les services etatiques19. Cette uniformisation de la formation a tendance a se refleter dans les interventions. C'est ce phenomene qui a amene certaines a parler de «therapisation » 20 des femmes. Cela pose en outre toute la question du rapport entre les dispensatrices de service et les utilisatrices. A cet egard, la pratique a impose des realites profondement differentes du projet de depart. Les services ont etc con^us comme lieu d'autonomie des femmes non seulement parce qu'ils fonctionnaient independamment des services sociaux etatiques, qu'ils reposaient sur une analyse feministe, et qu'ils etaient geres sur une base collectiviste et non hierarchique, mais egalement parce qu'ils devaient contribuer a une prise en charge par les femmes de leur propre vie. Inconsciemment, on a longtemps espere elargir les rangs du feminisme militant sur la base des services. Certes, ceux-ci permettaient d'offrir des solutions concretes et immediates a des femmes qui etaient aux prises avec des problemes reels, mais ils avaient egalement pour fonction de contribuer a 1'elargissement de la conscience feministe de ces femmes (on revient ici a la fameuse dialectique de 1'existence et de 1'etendue, dont il a ete question precedemment). Dans ce cadre, on pensait, par exemple, que des femmes battues pouvaient tres bien assumer le fonctionnement concret d'une maison de femmes battues et qu'a court terme les militantes qui assuraient le suivi du fonctionnement du service seraient remplacees par d'ex-hebergees qui s'en se-

153 Les services feministes

raient sorties et deviendraient ainsi disponibles pour aider d'autres femmes. La realite a impose un desenchantement. Les femmes qui arrivent dans une maison d'hebergement sont dans une situation de crise et d'isolement. Ce qu'elles recherchent avant tout c'est une prise en charge exterieure. Elles se retrouvent de plus dans un milieu etranger, ayant a composer avec des etrangeres au niveau de leur quotidien, et prises dans 1'engrenage de demarches officielles qu'elles ne maitrisent souvent pas. Ce n'est pas le meilleur temps pour les amener a prendre en charge la maison, ni meme leur propre sort. Quand elles s'en sortent, et c'est malheureusement le cas d'une minorite de femmes, leur plus grand souci est generalement d'oublier cette periode plutot traumatisante de leur vie. La encore, cela les rend tres peu disponibles pour prendre en charge le service. Elles ne reviennent tout simplement plus a la maison d'hebergement. Dans un tel contexte, les rapports entre dispensatrices de services et utilisatrices peuvent difficilement devenir des rapports de reciprocite. Us ont plutot tendance a se modeler sur le maternage, dans la mesure ou ils correspondent a un modele de production/consommation, scheme classique des services sociaux. Les feministes deviennent done les «therapeutes » d'autres femmes, des expertes des femmes, et ce type de lien n'est pas sans poser probleme par rapport a 1'autonomie des femmes. II a plutot tendance a generer la perpetuation d'une situation de dependance que 1'acquisition d'une autonomie personnelle. Par ailleurs, la therapisation est intimement liee au maintien des services. Dans la mesure ou les feministes se transforment en therapeutes, elles ont besoin de «therapiees». Cela confine done les utilisatrices dans leur role de victimes. Un mouvement qui s'est construit sur 1'unite de la condition des femmes et la sororite comme reponse politique a 1'oppression doit au moins reflechir serieusement a ces questions, meme si les reponses a y apporter sont loin d'etre evidentes et definitives. Ces problemes ont etc d'autant plus amplifies qu'au fil des ans les pratiques feministes se sont presque reduites aux services. La quasi-disparition des autres facettes du mouvement a egalement contribue a transformer les services en fins en soi dans la mesure ou ils constituent le lieu principal de visibilite sociale du feminisme. Par ailleurs, la disparition de lieux de debats et de prises de conscience a condamne les services a une certaine repetition du meme et les a empeche de se renouveler, soit a la lumiere de la decouverte de nouvelles dimensions de 1'oppression, soit en fonction de I'approfondissement de leur reflexion. Le quotidien des services se revele fort engluant.

154 Diane Lamoureux

Quelles conclusions en tirer? J'aurais tendance a repondre par un paradoxe. Les remises en cause neo-liberales de 1'Etat-providence ont laisse un espace permettant le maintien de services feministes concernant la violence conjugale. Dans ce sens, les femmes sont a la fois les beneficiaires et les victimes de la crise de 1'Etat-providence. Ceci necessite quelques elucidations. Mentionnons d'abord que les services autonomes continuent d'exister malgre certaines concessions qui ont du etre faites a 1'appareil d'Etat. Certes, les maisons d'hebergement ont du se structurer en reseau et arriver a fonctionner collectivement malgre leurs differences ideologiques21. Ceci represente indiscutablement une concession a 1'appareil d'Etat et force les diverses maisons a repartir entre elles la pauvrete. Cependant, 1'Etat n'a pas voulu prendre en charge ce secteur puisqu'il s'inscrivait non seulement dans une politique de rarefaction de la prise en charge etatique des problemes sociaux mais encore d'un report des responsabilites sociales sur les families et le « communautaire» 22 . Dans ce sens, autant 1'Etat que les feministes y trouvent leur compte. Malgre tout, plusieurs questions restent a debattre. Ainsi, si les services policiers sont beaucoup moins reticents qu'auparavant a intervenir dans les cas de violence conjugale, 1'appareil judiciaire renacle encore: les juges infligent des peines derisoires et trouvent toutes sortes de circonstances attenuantes, y compris dans les cas ou la violence prend la forme de 1'assassinat! De meme, pourquoi sont-ce les femmes et les enfants qui doivent fuir le domicile familial et vivre dans des conditions souvent miserables alors que la vie de 1'agresseur est peu perturbee? Enfin, suite aux evenements de decembre 1989 a 1'Ecole polytechnique, il n'est peut-etre pas inutile de se demander si la violence contre les femmes n'est pas susceptible de s'accentuer plutot que de diminuer. Dans ce contexte, les maisons d'hebergement, bien que necessaires, sont loin de repondre a 1'ensemble des besoins des femmes dans la lutte contre la violence. I1 n'est pas question d'avoir une attitude moralisatrice vis-a-vis de 1'integration subsidiaire des maisons d'hebergement dans 1'appareil etatique. II faut evaluer lucidement la situation. Ce qui s'avere d'une actualite cruciale pour les feministes, c'est une comprehension des diverses dimensions de la violence, tant privee que publique, a 1'egard des femmes et 1'elaboration de nouvelles pratiques susceptibles de 1'eradiquer.

CHAPTER FOURTEEN

Considering the Impact of the Battered Women's Movement on the State: The Example of Manitoba JANE URSEL

Dans son etude des rapports entre le mouvement des femmes battues et le gouvernement manitobain, Jane Ursel est amenee a reflechir sur la nature deTEtat et sur les strategies d'action des groupes de femmes. Elle presente deux perspectives sur 1'Etat, dont 1'une le considere comme etant fondamentalement patriarcal, et 1'autre entrevoit la possibilite des convergences ponctuelles entre les interets de 1'Etat et ceux des groupes de femmes. Pour Jane Ursel, 1'experience manitobaine demontre que la deuxieme perspective est la plus pertinente et que les initiatives etatiques ont ameliore la situation des femmes battues.

INTRODUCTION

In the past fifteen years the women's movement, particularly the battered women's movement, has challenged the criminal justice and social service systems regarding their historic response or lack of response in wife-abuse cases. As a result of this concerted lobbying effort by women across Canada, governments have begun to respond, and a variety of new programs and policies have been implemented. In the wake of this new level of activity by the federal and some provincial governments, a debate has arisen within the women's community about the costs and benefits of increased government involvement in this issue. On one side of the debate are women who view the increased involvement of the state as having the positive outcome of increasing services to battered women and their children, and increasing penalties for battering.' On the other side are women who argue that increased involvement of mainstream institutions results in cooptation, distortion, and depoliticization of the issue.2

156 Jane Ursel

This particular debate reflects a larger one within the women's movement concerning the state and patriarchy, and issues pertaining to the formulation of realistic and progressive strategies for feminists in their approach to the state: "One of the key questions for a specifically feminist approach to the state is the extent to which the state is autonomous from, or is itself one of the structures and relations of masculine dominance. In other words, is the state in its current form irretrievably an institution of men's power or is it a form of power in society which is contested and malleable?"3 This larger debate poses a number of questions that are critical to feminist politics and strategies. Are there issues in which there is a potential convergence of the state's interests and women's interests? If so, can reforms then be progressive and worth working for? What criteria do we use to distinguish a progressive from a "cooptive" reform? These are critical questions that need to be dealt with, both theoretically and empirically. The following discussion represents an attempt to begin to grapple with these issues. In the first part of the discussion, I will outline two alternative feminist perspectives on the state and patriarchy, as well as the different conclusions they lead to in terms of understanding the impact of state involvement in the wife-abuse issue. In the second section, I will provide a brief history of changes introduced in the criminal justice and social service systems. The final section will include an analysis of data on the outcome of these changes. DIVERGENT FEMINIST P E R S P E C T I V E S ON THE STATE

While all feminists agree that the history of women is a history of subordination because of the persistence of patriarchal roles, rules, and regulations, not all feminists are in agreement about how these rules operate and perpetuate themselves over time. Recently, the question of patriarchy and its perpetuation has centred around the state, its legislation, and its role in perpetuating gender inequality. There has been a dramatic growth in feminist theorizing on the state in the last decade. Despite the diversity when it comes to practice, on the theoretical side there are basically two schools of thought. The first includes those writers who perceive the state "in its current form irretrievably an institution of men's power," eliminating any possibility of issues in which there could be a convergence of state and women's interests.4 The second school of thought includes those who perceive a contradiction in the operation of patriarchy within the state, creating a contested terrain and the possibility of a convergence of state and

157 The Battered Women's Movement

women's interests on particular issues.5 The purpose of this section of the paper is to examine the relation between these particular theoretical perspectives on the state and their policy and practice implications for people working in the field of wife abuse. The first perspective, most frequently articulated by radical feminists, flows from an analysis whose primary focus is on the consistency of patriarchy over time. While this approach does not deny historical specificity, the attention is directed to the consistency of effect of patriarchy. "Feminists do not argue that it means the same to women to be on the bottom of a feudal regime, a capitalist regime, and a socialist regime; the commonality argued is that despite real changes, bottom is bottom."6 The radical feminist's focus on effect pulls them away from process. Thus while their works may acknowledge history, typically they do not use it. The clearest expression of this tendency is MacKinnon's rejection of historical materialism as male-stream method.7 MacKinnon's emphasis upon effect results in her approach to the state and patriarchy being not unlike Gertrude Stein's description of a rose. For Stein, "a rose is a rose is a rose." Similarly, for MacKinnon, patriarchy is patriarchy is patriarchy, and the state is patriarchal. Whatever variations may exist in the operations, interests, or processes of patriarchy, they pale in comparison to its effect. There is little to be learned from the process; the lesson lies in the effect. MacKinnon states that sex is eroticized dominance, law is the medium for making male dominance both invisible and legitimate, and the state is patriarchal. The state, she maintains, is the realm of male dominance. She allows for no autonomy, relative or otherwise, of the state from patriarchy.8 Given an interpretation of the state that is so inherently, monolithically, and irretrievably patriarchal, it is understandable why feminists who subscribe to this perspective would view the state's involvement in a feminist issue as corrupting, coopting, and depoliticizing. The policy implications are clear: whatever the state touches reinforces patriarchy even if, perhaps, it wears a benevolent face. In the case of wife-abuse policies and programs in Canada, this position has been articulated by several authors who focus on the negative impact of state involvement.9 The primary difficulty with analyses that announce the failure of the battered women's movement is that their criteria for success or failure is measured in terms of the state's impact on the movement.10 It is presumed that the battered women's movement has had little impact on the state.11 Thus in the assessment of impact, no one is looking at the possibility of change within the system and, what is most disturbing, no one is looking at its impact on battered women.

158 Jane Ursel

A search for an alternative to the above critiques stems from the belief that the battered women's movement should have as its primary criteria of success or failure the circumstance or predicament of battered women. One must develop a means of determining whether a battered woman or a woman at risk has more options and supports available to her today than was the case prior to state involvement. This, it seems, should be at least as important a measure of success or failure as observations on the impact of the state upon the movement. A second factor that must be considered in the overall assessment of success or failure is the extent to which the battered women's movement has affected the state - that is, the criminal justice system and the social service system upon which its major lobbying efforts have been concentrated. Finally, the search for an alternative to the above perspective on the state is motivated by what seems to be the paucity of strategic options flowing from an analysis that speaks only to the problem of cooptation in reform and not to the potential for reform. Such an analysis presents an overly deterministic model of the state, allowing no room for social agency and change. In this regard, both Barnsley and Snider advance a conception of the state that centres on its one-dimensional patriarchal character and its omnipotent effect: "The ideology in which we are all trained gives the state and its institutions the tools and the responsibility to respond to the demands of the women's movement in such a way as to contain any threats to dominant interests."ia This concept of an overly deterministic state that can coopt all social movements is simply not a concept verified by history. It is also a concept that asks what feminists should do while waiting for the revolution. While one can certainly agree with the above authors that it is dangerous to underestimate the "enemy" — patriarchal power in the state — I would also maintain that it is equally unwise to overestimate the "enemy." The former case, we are warned, leads to cooptation at best, complicity at worst. In the latter case, however, we should be aware that overdetermination leads to strategic confusion or paralysis at best, and internecine destructiveness at worst. The perspective that "state involvement is bad," that "from a moral perspective, such initiatives encourage inhumane and repressive solutions"13 transforms strategic issues into moral axioms. The debate shifts from assessments of when and how it is appropriate to involve the state to moral assessments of the political motives of women and agencies according to their degree of involvement with the state. Women who work in the state are by definition bad, complicit individuals; women who work with the state are certainly suspect; and women who have college degrees or are otherwise credentialed are under-

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stood to have a mainstream (anti-feminist) approach to the problem.14 These divisions, which have been identified by a number of authors,15 are far more than academic and have led to destructive splits within the community of service workers, including organized lobbying efforts to block the development of particular services. While interagency conflict is the most troubling consequence of the moral axioms implicit in an overdeterministic model of the state, poor strategy is another consequence. The definition of the state as the enemy results in a failure to grasp opportunities that present themselves, as well as in a failure to recognize allies within the state. For many feminists, the very notion of "allies within the state" is a contradiction in terms. However, the work of Franzway, Court, and Connell (1989) suggests that one should not ignore the reality of women who work within the state and the fact that many of these women are feminists.16 They introduce the concept of "femocrats" to identify feminists who were specifically recruited into the bureaucracy to translate feminist social/ political demands into social policy. Their analysis of the role of these women in bureaucracy is loaded with strategic implications for feminists lobbying the state. While it is unrealistic to assume that a consensus can be reached among feminists regarding the most effective strategies for change, it is to be hoped that differences in strategies can be recognized as such and not become the basis for identifying large numbers of women and agencies as the enemy - that is, for assigning guilt by association with the state. Redirecting the criteria of success or failure from the exclusive question of what is the impact of the state on the movement to include what is the impact of the movement and the state on the options available to battered women should help to move the debate out of the murky waters of moralizing onto a clearer ground for assessing strategies. To this end, the second school of thought on the state and its relation to patriarchy offers a more promising framework. This approach views the state as less monolithic, identifies contradictions in the operation of patriarchy within the state, and sees possibilities for the convergence of state interests with women's interests on some issues. Pursuing this alternative, however, does not ignore the fact that, when the state becomes involved, changes to organizations and services will occur. This alternative perspective is articulated by Eisenstein's "dual systems" conceptualization of women's oppression in capitalist society; that is, Eisenstein sees capitalism and patriarchy as separate though interdependent systems. She identifies contradictions between the organization and interests of capitalism and patriarchy; within these contradictions, she identifies opportunities for feminist political ac-

160 Jane Ursel

tion. Building on Eisenstein's concept, I undertook an earlier research project in which I studied state intervention in, and structuring of, patriarchal relations through an analysis of a century of family, labour, and welfare legislation in Canada. In "The State and the Maintenance of Patriarchy" (1988), I argued that the restructuring of productive relations associated with Canada's transition from an agrarian to an industrial society involved a restructuring of reproductive relations as well.17 I suggested that this restructuring involved a transition from a decentralized, familial patriarchal system, characterized by the particular subordination of individual women to a male head of household (husband/father), to the generalized subordination of women through centralized, social patriarchal structures embedded in the political/economic institutions of the day. As a result of this emphasis on history and process, rather than insisting that "patriarchy is patriarchy is patriarchy," I argued that the power relations and dynamics of familial patriarchy are significantly different from the emergent patterns of social patriarchy. I argued, in fact, that the state became directly involved in the dismantling of particular familial patriarchal relations in order to facilitate a better fit between production and reproduction in the new economic order. It is in this context that a consideration of state involvement in the issue of wife abuse can be assessed most strategically. Is wife abuse a vestige of the old familial patriarchal system, in which the patriarch had ultimate control over the lives and well being of his family members? Does the state have any interest in the current social economic order or reap any benefit from the perpetuation of this pattern of individualized dominance? Does the perpetuation of wife abuse present costs to the state and the social system today? If it can be established that wife abuse serves no useful function in the current social patriarchal order, and if it can be further established that it is, in fact, costly to the state, both in terms of social costs and political legitimacy, then it seems we will have a set of circumstances in which state interests can be seen to coincide with the interests of women. When similar circumstances have occurred in the past, this has led to the introduction of decidedly progressive reforms. What will be argued here is that, as a result of the active and aggressive lobbying of women across Canada for over a decade, it has now become evident to the state that the perpetuation of wife abuse is costly, both in terms of the social costs of the sustained victimization of large segments of the population and in terms of the political costs (legitimacy of the state). I suggest that it can be argued - and defended that in the late twentieth century the state has no economic and/or structural interest in perpetuating wife abuse.

161 The Battered Women's Movement If these are, in fact, reasonable arguments, then it follows that it is a reasonable, indeed a preferred strategy, for the women's movement to use the full force of the state - its money, its legal apparatus, and its political legitimacy - to provide more support and more options to battered women and women at risk to help them escape from their violent situations. In taking the position that it is possible, under certain circumstances, to use the power of the state to achieve progressive reform, the remainder of the discussion will examine state response to wife abuse in the province of Manitoba. In assessing the impact of state involvement, primary consideration will be given to the question, Has there been a significant, measurable change in the state's response to wife abuse in the criminal justice and social service system? What does this mean for battered women? THE SYSTEM'S RESPONSE TO THE BATTERED WOMEN'S MOVEMENT Before looking at the Manitoba data in detail, it is worth noting that Manitoba is merely a specific example of a more generalized trend throughout the country towards increased state involvement in the issue of wife abuse. Browning (1989) reported that there were 160 shelters in Canada and twenty-four treatment programs for batterers.18 Six years later, the National Clearinghouse reported that the number of shelters across the country had increased to 402 and the number of treatment programs, to 124. Since 1985, the federal government has spent over $200 million on programs to address the issue of family violence. A significant proportion of this money was allocated to finance wife-abuse shelter facilities through Project Haven, a Canada Mortgage and Housing Corporation (CMHC) program. Thus, while the analysis of changes within Manitoba is specific to that province, it is also indicative of a broader national phenomenon. The starting point of this analysis is the first major systemic response, which occurred in Manitoba in 1983. That year, the attorney general of Manitoba directed police to lay charges in all reported cases of spouse abuse when there were reasonable and probable grounds to believe that an assault had taken place. Prior to that directive, wife-abuse cases were treated differently from general assault cases in that the victim usually had to request that charges be laid against her assailant. The directive required that in wife-abuse cases, as in general assault cases, decisions to charge were to be based solely on evidence rather than on the requests of the victim. This directive is taken as a starting point because it had the effect of making wife abuse a publicly visible and calculable problem.

162 Jane Ursel

This section of the paper focuses on the legal and social-service response resulting from the new political and social visibility of wife abuse in Manitoba. The major sources of data are as follows: "Spouse Abuse Statistics," Winnipeg Police Department, 1983-95; Family Violence Court data, 1990-95; and program and expenditure data from the Department of Family Services for 1983-95.19 Several factors become apparent when one examines the data collected in Manitoba over the past thirteen years. First, major systemic changes have been introduced; these will be measured in terms of new programs, new policies, and new expenditures. Second, changes in the criminal justice system and the social service system have not occurred in isolation from one another nor at the expense of the social service system.20 Finally, there is no indication that government services are replacing or overtaking community-based, nongovernmental organizations and agencies.21 In proceeding with the analysis of changes in Manitoba over the past thirteen years, it is helpful to identify the changes as taking place in three phases, with significant resistance occurring at each phase. It will be suggested that, at each point, resistance became a trigger for new developments that launched subsequent phases and pushed the process of systemic change forward. These three stages of change are as follows: Phase I, 1983-84, in which the greatest innovations occurred in the criminal justice system; Phase II, 1985-87, in which the greatest innovations were in the social service system; and Phase III, 1988—95, in which changes in the social service and criminal justice systems were concurrent. An attempt will be made to show how developments within one system became the catalyst for change in the other system, thus reinforcing the momentum for change. The analysis will proceed by outlining a history of the change process within and between the criminal justice and social service systems, beginning with the initial change, the source of resistance, and the "resolution" within each stage. P H A S E i: 1 983 — 84 This is the period that marks the state's first formal entry into the issue of wife abuse. The critical event was the new directive on charging policy issued by the attorney general in February of 1983-22 A key related event was the funding of a provincial committee on wife abuse in the fiscal year 1982-83. Both of these developments were a response to escalating lobbying by women's groups in the province. The new directive had the most dramatic short term impact on the system. Suddenly, over 600 wife abusers were charged by the Winnipeg police (see Figure i) and at least two thirds of them were making their

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Figure 1 Number of Spousal Assault Cases with Charges Being Laid, Before (1983-89) and After (1990-91 to 1993-94) tne Creation of the Family Violence Court in Winnipeg Note: Spousal assault cases include those in which a spouse and child were assaulted.

way to court. Aware from the beginning that there would be resistance from criminal justice personnel, the provincial wife abuse committee lobbied the attorney general to set up a separate court with designated crown attorneys to handle domestic assault cases. As a result of this foresight, the government's first response to resistance within the system was to set up a separate court. In November 1983, a court was set aside two days a week to handle the increased volume of wife abuse cases. The court was designated to handle trials, which were considered to be the more difficult cases and would require the most sympathetic and experienced court personnel. Despite this move, the bulk of the cases landing in court were guilty pleas and judges and defence lawyers spoke out against the new directive in the spring of 1984,23 denouncing the new policy as a failure, and asserting that it clogged up the criminal courts with what were essentially "family counselling issues." The strong reaction was successfully countered by the concurrent social service funding of wife abuse services. While the funding was extremely low, it did provide salaries for women committed to wife abuse services who could carry on a more sustained lobbying effort to counteract resistance in the system. As part of this funding a report was pre-

164 Jane Ursel

pared and submitted to the attorney general's office within days of the public condemnation of the directive by defence lawyers and some judges. The report documented overwhelming public support of the new directive and an analysis of court processing of wife abuse cases indicating that these cases varied little in attrition (that is, stays, dismissed for want of prosecution or discharges) from the processing of general assault cases.24 Thus, while the changes within the criminal justice system were most vulnerable to resistance from those within the system, the modest state commitment to wife abuse services and the increasing social acceptance of this issue as a serious social problem served to support and sustain the initial steps towards a new criminal justice policy. During this first phase, pressure was building within the women's community in favour of increased funding of wife-abuse services. In fiscal year 1981-82, the total sum of state support for wife-abuse services was $51,800, including small grants to a shelter in Winnipeg and to a crisis centre in Thompson. By the end of this phase, state funding had increased to $315,000 in grants for five different community-based wife-abuse services as well as a $100,000 commitment to a publicawareness campaign on wife abuse. Thus in the 1983-84 phase the primary resistance to change came from within the criminal justice system, and the primary support for the government to apply the new directive came from the battered women's movement and the community at large. P H A S E I I : 1985-87 The second stage is characterized by a general adjustment, within the criminal justice and social service systems, to the fact that wife abuse had become a reality to be dealt with. During this phase, we see the development of supporting services and policies, the creation of an office to coordinate wife abuse programs within the state, and a growing conflict between the state and the Manitoba Committee on Wife Abuse over ownership of the issue. Developments in the Criminal Justice System

Within the criminal justice system, four initiatives were introduced: i) police-recruit training on the issue of wife abuse; 2) growth of batterers' treatment groups; 3) the Women's Advocacy Program in 1986; and 4) court policy on reluctant witnesses in 1987. All of these initiatives were developed in conjunction with, or because of, initiatives in the social service system. All were designed to help the criminal justice

165 The Battered Women's Movement system deal more effectively with wife-abuse cases, but they did not introduce any further changes in the structure or procedure for processing such cases. The police-recruit training and batterers' treatment group initiatives are self-explanatory. At the beginning of this phase, there was no formal agreement between the social service system and the police academy. At the end of this phase, wife-abuse training was built into the curriculum for recruits, and the government wife-abuse office was negotiating a curriculum for in-service training for active officers. With regard to batterers' treatment groups, there were three programs at the beginning of this stage in the province - one run through probation services, and two non-funded programs, operating in communitybased agencies. At the end of the period, there were four probation services programs and a new community-based program called Evolve, funded to run treatment groups for batterers, as well as separate groups for women and children. Evolve was also mandated to provide training for agencies and individuals planning to operate such groups. In addition, a joint province/native agency proposal was submitted to Health and Welfare Canada to start up a Native Family Violence Program similar to Evolve but responsive to the specific needs of Aboriginal people. The Women's Advocacy Program (WAP) was initiated by the provincial wife-abuse office as a service specifically for women whose partners had been charged with wife abuse. Its mandate was to support victims, provide a bridge between the social service and criminal justice systems, and facilitate the operation of the criminal justice system. The program consists of a lawyer and two counsellors who provide women with legal information about their partner's case, criminal justice procedures, and their role as a witness, as well as with counselling and referral to a range of social services. The service sensitizes the criminal justice system to the needs and interest of the victim and absorbs a great deal of court personnel's frustration in dealing with the complexities of wife-abuse cases.25 In addition to providing the victim with information, counselling, referral, and support during court attendance, it also provides pre-sentence reports so that the judge can duly consider the women's interests in determining sentencing. Even with additional support, victims of wife abuse typically express a great deal of anxiety and ambiguity about their role as witnesses in court. In response to this problem, the prosecutions office of the attorney general issued policy guidelines in May 1987 to ensure reluctant witnesses were not doubly victimized by charges of contempt of court when they refused to testify. The guidelines directed all crown prosecutors to refer a woman requesting that charges be dropped to the

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Women's Advocacy Program. There was a recognition that treating all persons equally before the court would only perpetuate inequalities in such cases, particularly because women victims were at a serious power disadvantage in their families and in society at large. The processing of wife-abuse cases was not to be treated in the same way as general assaults. The victim/witness in wife-abuse cases was to receive special supports (through WAP) and special considerations as a result of her specifically disadvantaged position relative to men. These initiatives had several impacts: first, the number of charges increased over time (see Figure i); second, more appropriate sentencing began to emerge; third, judicial and legal criticism of the charging directive ceased; fourth, public monitoring of wife-abuse sentencing via press reporters in court led to greater public scrutiny and criticism of judges and/or crown attorneys whose behaviour was seen to fail to support the intent of the directive; and fifth, defense lawyers learned how to work the system, learning informally which judges were less sympathetic to the directive and "shopping around" via remands until they could get their client in a "friendly" court. Developments in the Social Service System

During the second stage of development, the major systemic changes occurred within the social service departments. These developments included: a) a dramatic increase in funding for wife-abuse programs, from $300,000 at the end of the first stage to $1.739 million by the end of the second phase; b) an increase in community-based wifeabuse services throughout the province, from five programs at the end of the first phase to twenty-three programs at the end of the second phase, including ten shelters, a number of non-residential programs, and second-stage facilities; and c) the creation of an office within the government to coordinate development and administer funding to wife abuse services. The creation of the government office precipitated a polarization of wife-abuse workers and agencies with divergent views on the desirability of state involvement. While ad hoc and reactive involvement by the state was considered a necessary cost of getting state funding, the move to proactive, developmental involvement signalled by the creation of the government's wife-abuse office was perceived as a real threat by some. The Manitoba Committee on Wife Abuse became the focal point for individuals and agencies who perceived state involvement with great suspicion and saw the government's wife-abuse office as the enemy. While there are as many interpretations of the source of the conflict as

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there were actors involved, my own reading is that it was a resistance to government moving from the role of passive to active participant. The drama highlighting the second period reflected the rapid growth of services and the extreme polarization over the issue of state involvement. The consequence was the conflict-ridden birth of a network of wife-abuse services throughout the province. This period of interagency conflict is an interesting test of the two theories of state conduct that we are considering here. The first theory, which sees no convergence of state and women's interests on this issue, would suggest that should an intense conflict arise within and between agencies, it would provide an ideal opportunity for the state to withdraw from any program or financial commitment to the issue. The second perspective, which suggests a potential convergence of state and women's interests in confronting the problem of wife abuse, would suggest that, despite the "divide and conquer" option available to the state, it would continue its commitment because wife abuse had become costly to the state as well. The latter scenario prevailed, although there were clearly casualties of the conflict (including both the "femocrats" who staffed the wifeabuse office26 and the Committee itself, which literally imploded a year late). 2 7 Despite these casualties, the momentum for growth was sustained by the legitimacy of the issue within the community at large, the energy and commitment of wife-abuse workers and lobbyists, and the weight of statistical evidence emanating from the criminal justice system, showing how prevalent the problem was. During this conflict-ridden process, significant policy and program changes were introduced into the social service system itself. These changes were initiated within social service departments to facilitate the growth of community-based wife abuse services. They included: - a government policy supporting the use of provincial social housing projects by agencies funded to provide second-stage housing and support programs; - a change in the regulations to the Social Assistance Act to provide onetier (provincial) per diem allowances to shelters within a two-tier welfare system28; - the introduction of fee-waiver grants to ensure that no shelter suffered financially for housing a woman who does not qualify for per diem payments from social assistance; - an arrangement with the Department of Housing to provide a facility and operating grants to agencies funded to provide shelter services; - the establishment of the first Aboriginal-run wife-abuse program and the first immigrant-family violence service; and

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- a training program negotiated between the Department of Employment Services and Economic Security and the government's wifeabuse office to train twenty "grassroots" local women as wife-abuse counsellors; the program paid wages and expenses for the women for two years of in-service and in-class training.29 While the growth was rapid and the process was volatile, the state consistently supported the principle that wife-abuse services should be provided by community-based wife-abuse committees and agencies. This principle was the key policy battle championed by the "femocrats" within the bureaucracy. To their credit, they ensured that the policy was well entrenched before they were removed from their positions. Only one internal government program was established in addition to the administrative staff, and that was the Women's Advocacy Program. Thus the entry of the government in the social service sector served primarily to increase the number of community-based services and increase the voice of immigrant and Native women in the design of such services. It is interesting to note the differences in the reactions to change that occurred in the first and second phases. In the first phase, the focus for change was the criminal justice system, and the major opposition came from within the system. In the second phase, the focus for change was the social service system, and the major opposition came from outside the system - from elements within the battered women's movement, whose primary concern was loss of ownership of the issue. PHASE III: CURRENT DEVELOPMENTS,

1988-95

In this phase, which is ongoing, what appears to be happening is a process of legitimation and elaboration on the changes that were introduced in the criminal justice and social service systems. The rapidity of change in both systems left a lot of work unfinished. Problems and issues that were identified as a result of five or six years of experience in the two systems are now on the agenda. The distinguishing feature of this phase is an absence of opposition, indicative of a general acceptance of the issue within the two systems, and a greater acceptance of the state as an actor by lobbyists and service providers outside government. Because the overwhelming majority of services are offered by community-based programs, government activity in the social services is largely limited to funding and facilitating those services. The unfinished business in this field concerned the development of an adequate funding formula for the large number of new services in the province.

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The government response was to mount a province-wide consultation process known as the "Women's Initiative," with a dual focus on services to battered women and women's economic needs. The consultation report recommended a number of changes in funding that resulted in increased provincial expenditures on wife-abuse services. The provincial budget increased from $1.7 million in 1987-88 to $4.3 million in 1989-90 and $6 million in 1995.3° The other key recommendation contained in the report suggested a major public-awareness campaign with a strong message that wife abuse is a crime. This was the only development to receive any resistance during this phase. The resistance came from outside government, from individuals and agencies that had remained suspicious of any state initiatives in the area of wife abuse. Because wife-abuse initiatives are largely internal to the criminal justice system, there are more systemic changes and developments to enumerate. One of the outcomes of wife abuse's being a high-profile issue in the community and a high priority issue in government was a new interest in the monitoring of wife-abuse court cases. This monitoring was made possible by the high level of press interest and frequent press coverage of such cases. When judges or crown attorneys are perceived as failing to live up to the intent of government policy, there is wide press coverage, resulting in both public and systemic censuring of inappropriate behaviour.31 Also, the number of crown appeals has increased as the public and the Department of Justice have become more demanding about the appropriateness of sentences. In addition to substantial public monitoring, the existence of services to victims provides advocates for women who have not been well served by the system. Complaints about failures in the system are made by wife-abuse agencies to the police, the crown attorneys, judges, and the Minister of Justice. A particularly valuable source on the operation of the system is the staff of the Women's Advocacy Program, who work very closely with all of the components of the criminal justice system — police, crown attorneys, judges, and probation officers. This intensive monitoring of the process has made the various offices of the criminal justice system anxious to develop better response systems. Three significant initiatives resulted from this scrutiny: the Family Violence Court in 1990; a special Family Violence Unit in corrections in 1992; and a zero-tolerance charging policy, adopted by the Winnipeg Police in 1993. In September 1990, Manitoba Justice introduced a specialized criminal court- the Family Violence Court (FVC) - to handle all family violence matters, including spousal abuse, child abuse, and elder abuse (see Figure 2). The majority of the cases that appear before this court

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Figure 2 Number of Cases Heard in Family Violence Court, Manitoba, 1990-91 to 1994-95

are wife-abuse cases, as indicated in Table i. The court is staffed by a specialized team of six crown attorneys who handle only family violence matters. Together with the Women's Advocacy Program, they work closely with victims to ensure that in the pursuit of rigorous prosecution, victim needs and interests remain primary concerns. A second major initiative was introduced by the Corrections branch in Manitoba in response to the increasing number of family violence offenders being sentenced to court-mandated treatment by the FVC. A special unit of fifteen probation officers was created to handle the treatment of these offenders. In addition, all provincial correctional institutions were given a mandate to provide treatment programs for batterers. Figure 3 identifies the impact of new sentencing patterns in Family Violence Court on the probation case load. As of 1995, the Winnipeg probation unit provided treatment or supervision services for over i ,500 offenders. Finally, in 1993 the Winnipeg Police Department introduced a zerotolerance policy regarding spousal-assault offenders. As a result, the number of charges processed has increased dramatically, and more and more spousal-abuse offenders are appearing in Family Violence Court. The difference between zero-tolerance and a pro-arrest policy is evident when comparing Winnipeg's arrest rates to those of Edmon-

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The Battered Women's Movement

Table 1 Abuses Cases Dealt with in Family Violence Court, Winnipeg, by Type, 1990-91 to 1993-94 Spousal

Elder

Child

Cases

Year

1990-91 1991-92 1992-93 1993-94 Total

analyzed

Number

%

Number

%

Number

%

1,699 2,381 3,485 3,893

1,302 2,014 3,119 3,543

77 85 89 91

371 331 327 283

22 14 9 7

26 36 39 67

1 2 1 2

11,458

9,978

87

1,312

11

168

21

Note: Percentages do not always add up to 100 due to rounding.

ton. While both cities have about the same population (600,000), in Edmonton there were 960 and 741 arrests in 1994 and 1995, respectively, whereas in Winnipeg the number of arrests exceeded 3,000 annually.32 At the beginning of this discussion, I argued that a comprehensive assessment of the success or failure of the battered women's movement must go beyond an analysis of the impact of the state on the movement and must consider the impact of the movement on the state - and, most important, the impact of both the movement and the state on options and services for battered women. From the brief historical outline I have just presented, I would suggest that there is sufficient evidence to conclude that the battered women's movement did have an impact on the state - specifically, on the criminal justice and social service systems' responses to wife abuse. In the final section of the paper, I will present the data that I have collected on measures of change within the system as a means of assessing the actual or potential impact of these changes on battered women or women at risk. CONSIDERING THE EVIDENCE

Assessing Change in the Criminal Justice System

Following the implementation of the new directive, a greater number of wife-abuse cases resulted in arrests than in the past. Although pre-directive records do not specify domestic-assault charges, we can estimate the increase in domestic cases by the dramatic increase in assault charges after the new directive was introduced. In 1983, the year the directive was issued, 3,673 assault charges were laid, compared with 2,453 in 1982. This increase is more than double that experienced be-

172 Jane Ursel

Figure 3 Impact of the Family Violence Court on Probation Active Case Load of Family Violence Offenders, Winnipeg, 1986-95 (selected years)

tween 1981 and 1982. Since 1983, Winnipeg police data indicate that the number of persons being charged in wife-abuse cases has risen dramatically over time. Figure 1 indicates the total number of arrests in Winnipeg over the past thirteen years. In addition to knowing the numbers of individuals charged, the analysis of court data provides us with some information on the accused. Table 2 indicates some of the more salient statistics about the offenders. As is well known, the overwhelming majority of persons arrested in cases identified as "domestics" are men in a marriage or partnership with the victim. Of particular interest is the age of the assailants: over 70 percent are under the age of forty. This suggests that these men have twenty to thirty years of relationships ahead of them; if the cycle is not broken, this will mean twenty to thirty more years of victimization of their partners. Another important factor is the number of children involved in these relationships: on average 60 percent of these cases have dependent children in the home. This raises serious concerns about the lessons these children are learning and the potential for perpetuating the intergenerational cycle of violence.33

173 The Battered Women's Movement Table 2 Characteristics of the Accused and the Victims of Spousal Assault in Family Violence Court (n = 9,978) Characteristics of the Accused (Median Age = 31)

Characteristics of the Victims (Median Age = 27)

Number

%

Number

%

Male Female

8,750 1,228

88 12

1,357 8,621

13 87

Total

9,978

SEX

9,978

ETHNIC STATUS

European origin Aboriginal origin Minority/other

4,599 3,373 1,057

Total

9,029

51 37 12

2,726 2,042 457

52 39 9

5,225

EMPLOYMENT STATUS

Employed Unemployed Student Homemaker Other

3,488 5,049 195

Total

8,881

PRIOR RECORD

7,673 3,193 1,297 199 2,694

Domestic assault General assault Crimes against persons Other

149

39 57 2

2

77 32 13 2 27

When we consider the socioeconomic characteristics of the accused, we see that their education and employment level is below the national average. In short, they are no exception to the general pattern in Canada that people of low socio-economic status are more likely to be apprehended by the police. This pattern has been invoked by Snider as one reason why women should not look to the state and the criminal justice system for support.34 She states that such intervention is repressive because it only reinforces the class biases in the system. However, it is important to consider that, in the overwhelming majority of cases (75 percent), it is the victim who makes the call to the police. If low-income women do not have any other form of recourse to save themselves and their children, should such intervention be denied them because it reflects a general bias in our society? We know that when

174 Jane Ursel Table 3 Family Violence Court Cases Proceeding to Sentence, by Type of Abuse, 1990-91 to 1993-94 Sentenced

Spousal

Child

Elder

Number

%

Number

1990-91 1991-92 1992-93 1993-94

1,080 1,354 1,718 1,815

64 56 50 47

1,126 1,513 1,639

63 56 49 46

244 203 184 142

64 61 56 50

18 25 21 34

69 69 54 51

Total

5,967

52

5,003

51

753

57

98

58

Year

818

%

Number

%

Number

%

people have other alternatives available to them, they will use these alternatives rather than the police. However, for poor and working-class women who do not have family, friends, and/or lawyers who can assist them, they must rely, like it or not, on the police to protect them. Surely it is a very distorted sense of justice that would deny these women and their children such protection. A final important observation about the accused is the very high rate of prior police records these individuals have. On average, 77 percent of the individuals arrested have prior records, with a very significant number having records for assault, either domestic or general. This provides some fairly compelling evidence that the persons arrested have a history of violence and are dangerous. While we know that the directive has changed the arrest rate, the next question about change in the criminal justice system concerns crown attorneys and court processing. In the previous section, resistance from some judges and lawyers to the directive in the initial phase of change was identified. Table 3, however, suggests that court processing changed over time - most importantly, in terms of the rate and type of sentencing. The table shows that while the absolute number of persons sentenced has increased over time, the percentage of persons charged who actually received a sentence declined from 64 percent in the first year of the FVC to 47 percent in the fourth year. Most of this decline can be explained by the significant number of victims/witnesses who do not want to testify against their partners. Because the crown attorneys are mandated not to "revictimize" the victim, they do not hold women in contempt of court if they refuse to testify nor do they put them on the stand as hostile witnesses. As a result, in the absence of other evidence it is not uncommon for cases to be stayed because of the victim's refusal to testify.

175

The Battered Women's Movement

Table 4 Most Frequent Sentences in Family Violence Court, 1990-91 to 1993-94

Probation

Incarceration at Sentence

Total Incarceration1

Total Sentences

Number

%

Number

%

Number

%

1990-91 1991-92 1992-93 1993-94

1,080 1,354 1,718 1,815

789 1,002 1,374 1,228

77 74 80 68

252 269 389 463

25 20 22 26

252 369 538 657

25 20 31 36

Total

5,967

4,393

74%

1,716

29

Year

1,373

23%

1 Total figures for incarceration include data on time in custody that were available for the third and fourth years; 149 and 194 offenders, respectively, received time in custody as part of their sentence during those two years.

With regard to the type of sentencing, there is a growing concern about what constitutes an appropriate sentence or sanction for the crime of wife abuse. Fining assailants is seen to provide little useful intervention and could be construed as little more than extracting a levy for abuse. The victim's expressed wishes, as well as the opinion of workers in the field, suggest that sentences that mandate counselling are necessary to break the cycle of violence. Despite the difficulty in obtaining convictions, Table 4 shows that sentencing is serious and that the message from the court system is that assaults against family members are criminal offences that have serious legal consequences. Prior to the introduction of the specialized court, the most frequent sentence in spousal-assault cases was a condtional discharge. Since the opening of the FVC, the most frequent disposition is two years' supervised probation and court-mandated treatment; the second most frequent sentence is incarceration. Dispositions that provide for ongoing monitoring and counselling interventions have been actively promoted by wife-abuse workers and advocates. The sentencing patterns identified in Table 4 suggest that this lobbying has been effective. The intent of the changes introduced in the criminal justice system over the past thirteen years was to provide wife-abuse victims with more protection and to make the court more sensitive to their needs. The higher arrest rate indicates an effort on the part of police departments to provide greater protection; the changing pattern of sentencing suggests an attempt by the courts to be more sensitive to women's needs. While it is not being suggested that all of the problems within the system are solved or that victims are always treated well by the system, it

176 Jane Ursel

can be argued that real changes with beneficial results for women have been introduced. While these changes are not enough, they do provide evidence that the system is moving in the right direction. In this regard, perhaps the greatest success of the battered women's movement is the level of legitimacy that this issue has acquired in the public eye. This legitimacy has led to the high level of public monitoring of the system, which has created the political will to proceed with the new Family Violence Court, the zero-tolerance policy, and the creation of a special Corrections unit on family violence. These developments will be a critical force in ensuring that the changes continue - and that they continue in the right direction. Assessing Change in the Social Service System

In assessing change in the social service system, there are really only two statistical measures available: the number of programs the government funds, and the amount of funding provided. The number of community-based wife-abuse services increased from two in 1982 to twenty-five in 1990, and government expenditure increased from $52,000 to over $4 million in the same time period. By 1995 there were thirty programs in Manitoba supported by $6 million in provincial funding. Since the government's role is largely limited to that of funder, all the other measures of impact lie within the service agencies themselves. The increased number of community-based agencies and the increased funding they receive have led to the development of a broader network of services. While many services have concentrated on crisis response, 24-hour crisis lines, and shelters, there are also second-stage programs and non-residential counselling programs to support women and children in the intermediate and longer-term process of restructuring their lives. In addition, as the funding for services improves, the community-based agencies are less plagued by staff turnover, giving them more time and energy to devote to program development. In recent years, shelters have put a great deal of energy into developing programs for children in their facilities. Most agencies are now reporting an increase in the variety and quality of the services they offer. CONCLUSION

The purpose of this discussion has been to introduce new criteria into a literature that is currently assessing the success or failure of the battered women's movement. The existing assessments have focused on

177 The Battered Women's Movement

the impact of state involvement on the movement itself. In contrast, it has been suggested here that a consideration of the impact of the movement on the state is an equally important criterion. Furthermore, it has been suggested that an assessment of the impact of the movement and the state on the supports and options available to battered women should be the ultimate criterion. With regard to the first criterion, the discussion has included both a history and a statistical summary of changes that have been introduced in the criminal justice and social service systems as a result of the battered women's movement. With regard to the second criterion, the measures are less obvious. It has been demonstrated that, as a result of state involvement, the number of services for wife-abuse victims increased tenfold from 1982 to 1990. It has also been demonstrated that the growth of government expenditures has experienced an even more dramatic increase during a decade when fiscal restraint was the dominant feature of state management. On the basis of this quantitative evidence, one could conclude that battered women and women at risk are better off today, as a result of state involvement, than they were ten years ago. However, critics of state involvement suggest that the most important measure is qualitative. Are the services being run by bona fide feminist agencies? These concerns expressed about ownership of the issue cut to the quick of feminist politics. Does one group of women - the founders of the battered women's movement, who share a specific analysis of patriarchy, a specific political agenda, as well as a specific class and racial background - "own" an issue that destroys the health and lives of many different women of different class and racial backgrounds, who have many different political perspectives and many different views of patriarchy? Can a single-issue political movement realistically expect to be anything more than a movement for reform of that issue? And as the momentum for reform accelerates, involving many more women and many different perspectives, by what criteria do we conclude that the movement has failed? The involvement of the state does result in changes. The increased funding has resulted in more agencies becoming involved, and these agencies are more heterogeneous. While none of the original services have been replaced and all are still operating (with the exception of the Manitoba Committee on Wife Abuse), new agencies with new approaches have entered the field of service delivery. Examples of this diversity are the development of an immigrant women's program and a number of Aboriginal services (a shelter, a provincial crisis line, and a non-residential counselling program). In addition, shelters have been developed in small, rural, religiously con-

178 Jane Ursel

servative communities. While the key actors in these new agencies have not had a historical connection to the battered women's movement, must we conclude that they are anti-feminist? If we find that as a community broader than the women's movement becomes empowered to act on this issue, and in taking ownership uses a language and philosophy fitting to its own community, is it fair to conclude that the issue has been coopted? Broad societal legitimation of an issue does mean that feminists lose exclusive ownership of the issue. However, the recognition by the larger community that wife abuse is a prevalent problem should be taken as a measure of the movement's success. In the case of Manitoba, it is perhaps more accurate to talk about the wife-abuse issue as being democratized rather than coopted. It is true that not all actors and agencies in the field will share the analysis of patriarchy common to the founders of the battered women's movement. However, the work they do does serve to increase the supports and options for women and children escaping violent homes, and assists them in establishing secure, independent living alternatives. In the absence of state involvement, there would have been many fewer agencies involved, although they would undoubtedly have been more explicitly feminist in ideology. In making the choice between many services providing substantive material supports and few services of a more homogeneous feminist substance, it can be argued that in the former, the material benefits outweigh the ideological in these very real life-or-death situations. In conclusion, the different assessments of the "success" of the battered women's movement reflect different strategic approaches to the state, based on different theoretical understandings of the patriarchal character of the state. The first theoretical perspective reviewed in this paper perceives the state as fundamentally and irretrievably patriarchal. The policy implications of this perspective are to approach the state apprehensively, with the expectation that whatever the state touches will be turned to patriarchal purposes. The practice that follows from this policy is the vigilant guarding of the feminist ownership of the issue, which leads to placing value and emphasis on feminist homogeneity in services, and thus to an ensuing attitude of caution and distrust of heterogeneity in services. This has often resulted in bitter divisions and rivalries between agencies and among service deliverers. The alternative view of the success of the battered women's movement, presented in this paper, is based on a different criterion of success that flows from a different theoretical analysis of the state. The alternative theoretical perspective perceives contradictions in the dynamic of patriarchy in the state. It is argued that these contradictions

179 The Battered Women's Movement

create a contested terrain and the possibility of a convergence of state and women's interests on particular issues. The policy implications of this alternative perspective are to approach the state strategically, to select issues in which a potential for convergence of interests does exist, and then to involve the state as much as possible in working towards those changes. The practice that flows from this policy promotes a proliferation of resources and services, and it seeks to involve as many actors in as many ways as possible to confront the crime in all of its different locations and manifestations. This perspective is outwardlooking in both its criteria for determining success and its strategies for change. Strategic decisions to consciously and carefully use the state should be informed by an assessment of the state's interest in particular patriarchal structures or functions. Not all issues are as amenable to useful state involvement as wife abuse. It goes without saying, however, that feminist strategies to use the power of the state, its laws, its money, and/or its legitimacy must always include ongoing monitoring and lobbying to ensure progressive reform.35

CHAPTER FIFTEEN

Inuit Women and Violence MARTHA FLAHERTY

Ce chapitre decrit le travail de Pauktuutit, 1'Association des femmes inuites du Canada, relativement a la question de la violence faite aux femmes et aux enfants de la communaute inuite. L'existence d'une organisation qui represente les femmes inuites indique certes qu'on a accompli des progres depuis vingt ans, mais il y a encore beaucoup de chemin a parcourir avant qu'on puisse dire que 1'Etat canadien repond aux besoins des femmes inuites.

The objective of this paper is to discuss the work of Pauktuutit, the Inuit Women's Association of Canada, regarding the issue of sexual violence against Inuit women and children. I will begin my remarks by briefly acquainting you with our organization and the people we represent. In Canada, there are approximately 38,000 Inuit, living primarily in fiftytwo communities in the northern and eastern portion of the Northwest Territories (NWT) , the Hudson and Ungava Bay regions of Quebec, and along the north coast of Labrador. Pauktuutit represents all Canadian Inuit women, and our mandate is to foster a greater awareness of the needs of Inuit women and to encourage their participation in community, regional, and national activities related to social, cultural, and economic issues. In addition, Pauktuutit has been mandated by the Inuit Tapirisat of Canada to represent all Inuit in matters related to health. Pauktuutit was created in 1984. Since that time, issues such as family violence, violence against women, and child sexual abuse have emerged as priority concerns of the organization. Family violence and child sexual abuse have been topics of workshops at annual general meetings, and over the years numerous resolutions have been passed calling for action on these issues. The 1990 annual general meeting re-

181 Inuit Women and Violence suited in three resolutions being passed on the subject of child sexual abuse and family violence. The first called on the government of the Northwest Territories to commission a full public enquiry into the treatment of women and children as victims of violence; the second called for the creation of community-based programs for family violence and child sexual abuse offenders and for offenders to be referred to these programs as part of their sentencing; a third resolution directed Pauktuutit to lobby all levels of government, the judicial system, and Inuit communities to initiate culturally relevant treatment services and programs for the victims of child sexual abuse, the offenders, the families, and the communities. Pauktuutit's work in this area involves continued efforts to raise public awareness of family violence and child sexual abuse, and to participate in a network dedicated to alleviating the problem. To this end, we have just published an Inuktitut translation of the Department of Justice publication, "What to Do if a Child Tells You of Sexual Abuse." We are in the process of updating and translating a booklet produced by the Native Women's Association of the Northwest Territories entitled "Does Your Husband or Boyfriend Beat You?" And we are conducting research aimed at uncovering the magnitude and extent of child sexual abuse in Inuit communities. A report on the child-sexual-abuse research will be published in Inuktitut and English. Since this presentation was originally made, Pauktuutit has completed the projects mentioned and moved on to other activities. In particular, the author of this paper represented Inuit women on the Canadian Panel on Violence Against Women, and Pauktuutit's justice project is addressing issues related to violence against women in the justice system. It has issued a report entitled Inuit Women and Justice: Progress Report, 1994. While Pauktuutit has been actively engaged in public education and awareness campaigns aimed at reducing the levels of violence against women and children, recent events have led us to embark on a radically different course of action. When the northern judiciary consistently gives lenient sentences in cases of major sexual assault based on cultural and sexist mitigating factors that discriminate against Inuit women, the constitutional right of Inuit females to security of the person and to equal protection and benefit of the law is infringed. The issue of lenient sentencing in the Northwest Territories has a short but complex history. The imposition of the Canadian judicial system on Inuit in the Territories is relatively recent, for Inuit only began moving into newly established, permanent settlements during the 19505. While the RCMP have been present in the North for a much longer period, they, and later the courts, have made attempts to take

18 2 Martha Flaherty

Inuit cultural practices into consideration when laying charges and in sentencing. The problem with this is that only particular aspects of Inuit culture have been taken into consideration and the interpretation of culture accepted by non-Inuit judges is, in a number of instances, certainly debatable. Overall, this practice of the courts tends to result in an increased sensitivity to offenders, while the needs of the victim and her right to equal protection and benefit of the law tend to be ignored. A much discussed example of this took place in 1984, when a territorial court judge sentenced three men to one week in jail for taking sexual advantage of a mentally impaired thirteen-year-old girl. In sentencing, Judge R. M. Bourassa stated: "For the people of the eastern Arctic, there is no prima facie age restriction when it comes to sexual intercourse. The acculturation process of children does not include the terms 'statutory rape', 'jail bait', or other terms suggesting prohibition. Rather, the morality or values of the people here are that when a girl begins to menstruate she is considered ready to engage in sexual relations." Teressa Nahanee has conducted research on the impact of race, judicial discretion, and disparity on sentencing in major sexual-assault cases in the Northwest Territories. Her research reveals that when the victims of sexual assault and the accused are both Inuit, sentences for the crime tend to be relatively short. An additional factor in lenient sentencing involves a reluctance on the part of the judiciary to send Inuit men to federal penitentiaries located outside of the Territories. This is the only option currently available for offenders sentenced to terms over two years. There are other examples of lenient sentencing. In 1986, an Inuk man was sentenced to ninety days for major sexual assault against a fourteen-year-old girl. Upon appeal, the sentence was raised to eighteen months. In 1984, a sentence of six months was imposed on a man who had violently sexually assaulted his daughter over a lengthy period of time. In sentencing, the judge stated: "I can take into account that [the accused] has no criminal record; he has never broken the law before; he is a hunter and provides for his family in the traditional way. I have nothing before me to indicate that he is anything but a good hunter and a competent provider for his family." In 1989, an Inuk man convicted of sexually assaulting his nineteenyear-old babysitter was sentenced to twenty months' imprisonment and was prohibited possession of firearms for five years after serving time. That same year, a man who pleaded guilty to four counts of sexual assault involving fondling girls aged between nine and twelve years received a suspended sentence and was ordered to do 300 hours of community work. Judicial comment included the following: "I am going to

183 Inuit Women and Violence

take a chance with him and not send him to jail for these minor sexual assaults." Politically, the issue of lenient sentencing in sexual-assault cases came to a head in December 1989, when the Edmonton Journal reported the following comments made by Territorial Court Judge R. M. Bourassa: "The majority of rapes in the Northwest Territories occur when the woman is drunk and passed out. A man comes along and sees a pair of hips and helps himself." The article continues with another quote: "That contrasts sharply to the cases I dealt with before (in southern Canada) of the dainty coed who gets jumped from behind." The northern public responded to these comments with calls for the judge's dismissal. Pauktuutit, the NWT Native Women's Association, and the NWT Status of Women Council issued a joint press release echoing the public's call for dismissal and pointing to the need for a review of the entire justice system in the Northwest Territories. In March 1990, the commissioner of the Territories appointed Madam Justice Carol Conrad of Alberta to conduct an inquiry into Judge Bourassa's conduct. Madam Justice Conrad's report, issued on 28 September 1990, found that the judge's conduct "falls far short of constituting misbehaviour" and recommended that he "not be disciplined by way of removal, suspension or reprimand" and that his legal costs be paid. In the "Summary of Decision," Madam Justice Conrad stated: "I am satisfied that Judge Bourassa is not biased against natives, women, northern Canadians, victims or intoxicated persons." Pauktuutit strongly disagrees with this decision. In a press statement issued on 29 October 1990, then-president Mary Silett stated: Madam Justice Conrad's decision to clear Judge Michel Bourassa of misbehaviour and find him fit to continue on the bench in the Northwest Territories should be condemned by all Canadians who believe in sexual justice and equality. Pauktuutit is asking for a full review of Madam Justice Conrad's decision. In our view, allowing Judge Bourassa to remain on the bench brings the administration of justice in the NWT into question. The lenient sentences in rape and sexual assault cases handed down by Judge Bourassa from 1984 to 1989, as well as those by other northern judges, have done nothing to ensure the rights of Inuit women to personal security and equality, under the law. Pauktuutit challenges statements made by Madam Justice Conrad to the effect that she found no record of lenient sentences. Not only has Judge Bourassa handed down lenient sentences for major sexual assault, but these decisions have not been "neutral." We believe there is evidence of racial bias contrary to section 15 of the Charter of Rights and Freedom when culture is considered as a factor in sentencing. In 1984, Judge Bourassa handed down a one week sentence to three Inuit men who raped a mentally impaired 14 year old Inuk girl. That girl had section 15 equality rights too! She was entitled to

184 Martha Flaherty "equal benefit of the law," which includes protection, despite her mental disability. Judge Bourassa gave a six month sentence in an incest case where there was violence for years by a father against his daughter. Another Inuk male received one month imprisonment for sexually attacking a sleeping victim. We believe there is sufficient evidence from the lenient sentencing by Judge Bourassa and other judges to bring a Charter case against the Attorney General of Canada and the territorial Minister of Justice for failing to enforce our equality and personal security rights ... We are undertaking a court challenge aimed at showing that Inuit females have not received equal benefit of the law because of lenient sentences. The federal Justice Minister has responsibility for amending the Criminal Code if it fails to accord us our Charter rights. In the NWT, both Justice Ministers share responsibility for enforcing the Criminal Code; for ensuring victim participation in sentencing; and for protecting Inuit women in their communities. Pauktuutit demands that the judiciary recognize that rape is a crime deserving of deterrence and denunciation regardless of the race or culture of the victim. Professor Elizabeth Sheehy ... writes that "the criminal justice system ... encourages and tolerates violence against women." She adds that "one of the more recent studies argues that longer prison sentences do deter further criminal activity both of the individual offender and others, and that the deterrent effect is strongest for rape and assault." In conclusion, Pauktuutit calls for a full, public inquiry into the administration of Justice in the NWT. We are concerned about Inuit females and their children as victims of violent crimes. We want to see the government appoint a Commission of Inquiry to examine: judicial appointment; discretion of crown attorneys; policing; sentencing (particularly sexual assault and incest cases); victim participation in the justice system; and the role of culture in law enforcement. We share the concern of all Inuit people and the judiciary that offenders serve their sentences in the NWT, even if their sentences are over two years. The public inquiry should also address this aspect of sentencing as well as the question of access to counselling and treatment services while in prison. In conclusion, we believe that in addition to a full public inquiry into the administration of justice in the Northwest Territories, the state must be confronted for failing to seriously address crimes of sexual violence against Inuit women and children. Twenty years ago, when the report of the Royal Commission on the Status of Women was released, Inuit women did not have a national voice and we were unable to publicly address questions such as the one posed by this conference namely, Has the state successfully responded to the needs of Canadian women? Real progress has been achieved in that Inuit women now have an organization to represent our interests and concerns, but as my remarks have made clear, we have a long way to go before we could say that the state is responding to the needs of Inuit women.

CHAPTER

SIXTEEN

Reminiscences of the Commission Chair FLORENCE BIRD

Dans ce chapitre, la presidente de la Commission royale d'enquete sur le statut de la femme examine 1'organisation et le fonctionnement de la commission et se rememore certaines des personnes qui ont participe aux audiences. Elle rappelle egalement 1'impact considerable qu'ont eu les audiences publiques sur les commissaires, sur les groupes et individus qui ont presente les memoires et sur le public en general.

The impact of the recommendations of the Royal Commission on the Status of Women has already been discussed in depth at this conference. Tonight, I want to look back and talk about some of the problems involved in producing the report and to explain the way we handled the assignment. Well do I remember the first meeting of the commissioners when the seven of us discussed our terms of reference and became fully aware of the magnitude of the task ahead. We were instructed to "inquire into and report upon the status of women in Canada, and to recommend what steps might be taken by the Federal Government to ensure for women equal opportunities in all aspects of Canadian society." After talking for three days, we decided that in order to fulfill our mandate we should write a well-documented sociological study of the present and what we hoped would be the future status of women in Canada. It didn't take us long to realize that in order to have any visible effect on the society of the future we would have to make recommendations to the governments of the provinces, territories, and municipalities, as well as to the private sector. It was also obvious that we would need four directors of research, instead of one as is usual for commissions. It took time to find suit-

i86 Florence Bird

able people. After some trial and error, we ended up with an excellent, dedicated team. Monique Begin took on the arduous job of executive secretary as well as the responsibility for the important section on sociology. Dorothy Cadwell dealt with the complexities of economics, labour legislation, and taxation. Grace Meynard tackled education. Monique Coupal arranged the research studies on the Criminal Code, English Common Law, and the Quebec Civil Code. After the public hearings made us understand that too many women, especially older women, are poor, we asked Doris Shackleton to write the section on poverty. Each research director employed her own secretary and research staff after we had prepared our budget for the year ahead. Expensive, external studies had to be approved by the commissioners. I think that not enough credit has been given to the great contribution the women in the secretariat made to the report. They were indefatigable, highly professional, and essential. The four research directors attended all of the commissioners' meetings and their advice was invaluable. Patiently, they fulfilled our demands for more and ever more information. Without complaint, they wrote and rewrote the drafts of the report. The commissioners decided to condense the material into one volume so that women could afford to buy it, as indeed they did since the first printing was sold out in three weeks. It is again out of print, having gone into three printings in French and four in English. We wanted it to be written in plain, jargon-free language that would be understood not only by academics, public servants, and politicians, but by the public as well. The drastic editing made it a tough job for all of the editors - and in particular for Helen Wilson, the long-suffering senior editor responsible for the English edition that, when it was completed, had to be translated for the French edition. We worked for many months before the commission became an efficient, smoothly functioning organization. Slowly, we built up a secretariat of about fifty women. We also had to cope with external problems that were out of our control. We had been appointed unexpectedly at a time when no office space was available. For six months, I had to share the office of the commissioner of the Royal Commission on Farm Machinery. It was like the Gilbert and Sullivan opera Cox and Box. When he was out of town, I was at his desk. When he was in Ottawa, I worked at home. The office building was being made over, and the construction workers turned off the heat in April. On a bitterly cold day, the place slowly turned into a refrigerator. The next morning, the secretaries arrived carrying little stoves, and we all worked in sweaters and slacks, but we

187

Reminiscences of the Commission Chair

were chilly and uncomfortable, and it slowed us down until the weather warmed up several weeks later. During that transition period, a public servant brought me blueprints of the offices that were being prepared for us in another federal building. I was expected to decide how much space we would need and how it should be divided. The offices turned out to be adequate more by good luck than by good management on my part, because at that stage I didn't know how many people we would need for the work. When, after six months, we moved in, the builders were still painting and hammering. All of the files had to be packed, unpacked, and sorted - and that took time. During the first and second summers, we employed university students, who had just received their BAS and MAS, to find out what research had already been done on the status of women, not only in Canada but in other countries. We did that to avoid duplication of effort. The material they unearthed educated the commissioners. We read a great deal so that we would know what further research studies would be needed to give us the information required for an in-depth report. Jeanne Lapointe read fifty books during a period of three months and became a feminist, which she had not been before. During the first year, we not only studied the available research but also made plans for the public hearings. I'm going to talk at length about the public hearings tonight because they made us fully aware of the importance in business terms of what we were trying to do. But first, I want to mention one of the most useful things we did. We commissioned distinguished consultants to assess the final drafts of the chapters and recommendations relevant to their disciplines and expertise. I remember Sylvia Ostry came to the commissioners' meetings for three days. She raised a number of questions about the side effects of some of our recommendations regarding labour legislation, and she helped us to clarify our thinking about the chapter on economics. The other consultants were also a tremendous help. As you can well imagine, the socalled "final" drafts that we sent them needed a good deal of working over before they went to the printer. Those extra weeks of work were worthwhile because they added greatly to the authority of the report. The public hearings were given a great deal of thought. We decided to do more than merely call for briefs in newspaper advertisements, as most commissions did. We wanted to hear from women themselves about their problems, rather than only from associations, governments, professional people, and businesses. The secretariat, therefore, prepared a pamphlet that explained how to go about writing a brief and gave a list of the subjects we wanted to cover. We suggested that women might meet in groups to discuss their needs before they started

i88 Florence Bird

to write. We distributed the copies of the pamphlet in libraries and supermarkets. We hoped that they would have a useful educational effect as we believed that the Commission should do more than merely produce a report to guide governments. We allowed several months for women to write the briefs and for us to read, bit by bit, the 468 of them that eventually arrived at our office. We started the public hearings in April 1968. We held them in places such as church basements, shopping plazas, and school auditoriums rather than entirely in large hotels. We did not sit up on a high dais the way royal commissions usually do. The seven of us sat at a table with the witnesses right across from us. Each of us had a microphone, and there was simultaneous translation of French and English, with earphones available for everyone. I have memories of many women coming in, shaking with nervousness, and I would say quietly: "You are with friends. Don't be worried by all these lights and all the people. Just talk to me as if you were telling a friend about what is in your brief. Some of us will ask you questions and I'm sure you can answer them. Please, don't be worried. You are among friends who need your help so that we can help you and other women." We could often see their nervousness melt away as they began to talk about what was on their minds. There were so many briefs that often in the big cities we sat right through the lunch hour. One of us would slip out to eat a sandwichand-glass-of-milk lunch and then come back so that others could eat in turn. All of the thirty-three days that we spent on public hearings were long days. We met in the mornings, afternoons, and evenings. Usually between 300 and 500 people came to listen, the majority of them women. In the evenings, after the briefs allotted to that period had been presented, we threw the meeting open for public discussion from the floor. There were always many women who had information that they thought was important for us to hear. We opened the hearings in Victoria, B.C. They turned out to be a remarkably enlightening experience for all of us. They showed us where more research was needed in order to be sure of the validity of the information we had received and to find out where Canadian society seemed to be going. As a result, we commissioned forty studies. Eleven of them have been published. The others are available for serious students in the Archives of Canada. One of the great values of the public hearings was that statistics came to life. The faces of the men and women who testified before us come back to me even after twenty-two years. In addition, the hearings had a significant side effect. Travelling across Canada made us aware of the power of the land, and the shared experience drew us together as commissioners.

189 Reminiscences of the Commission Chair

Before we started on the hearings, the CBC requested permission to send a camera crew and producer with us to cover the proceedings. Some of the commissioners were not happy about the thought of sitting under bright lights for so many hours and wondered if the coverage might do more harm than good. We finally agreed that the publicity would be of value because the briefs contained so much good material that could not help but influence government as well as the public. The camera crew consisted of four young men, including a producer - a sensitive and intelligent person who had often worked with me when I was doing commentaries for the CBC. When they heard that they were scheduled to travel with the commissioners, right across the country, they were absolutely disgusted. They thought it was going to be the most boring assignment imaginable. At first, the crew made fun of us. The camera concentrated on women knitting intently, like Madame LaFarge in A Tale of Two Cities; on an old woman sound asleep, with her mouth open and falling over; and on hats. Twenty years ago, hats were the in thing, and there were some incredible hats adorning the tops of grey-haired heads. And there were hippies with unbrushed hair standing on end. The hearings were shown night after night on the CBC news. If we managed to return to our hotel rooms by eleven, I would turn on the news, and my own hair would stand on end. It was pretty trying to watch. Eventually, those young men became converts to our cause. They saw what we saw. They heard what we heard. And they changed their minds about the needs of women and discrimination against them. As a result, the crew asked if they could present us with a confidential brief. We were delighted, of course. As I remember, we heard the news in my hotel suite in Regina, and we invited them to a buffet supper there. From that point on, we received very fair coverage. I can still remember some of the unexpected, even ridiculous, proceedings that they showed in the early days of the hearings. For example, there was a woman in Vancouver who put a candle on the table beside her, lit it, and said, "I am burning this candle in honour of the Great God Television who looks after my children for me." I think she was asking for daycare centres, but all I can remember is that candle and the grin on her face. I see many other faces in the mirror of memory held up to those weeks of public hearings. One of the presentations in Vancouver was from a small group of seventeen-year-old girls. They were high school students and they presented a brief prepared by thirty-five different ethnic groups. They were speaking on behalf of their mothers, who were immigrants and could not speak English.

190 Florence Bird

Those girls were exceedingly eloquent. They were the first generation of Canadians by birth, educated in public schools in British Columbia. I remember being very moved when they said, An immigrant woman is like a bird in a cage. If you let it out, it would not be able to survive. Our mothers cannot read English, and if they go into a store they do not know what to buy, what cans or what packages, and they are afraid of being laughed at. They cannot read the street names, or understand how to pronounce them. Something should be done to teach them the language when they arrive in Canada because they are perfectly intelligent, but they have to stay in the home and they know nothing about the customs of this new country which is going to be their country.

I find it astonishing that it is only now that the federal government is providing enough money to teach one of our languages to the wives of immigrants. The men have been given language training, as have the women who come in under their own steam, but the wives, until recently, have not. The other thing that those young students told us was that immigrant children learn to speak English very quickly from their Canadian peer groups. Since their mothers cannot speak the language, they became ashamed of their mothers. That is not the way to build a society. I think also of four sole-support mothers from Edmonton. All were career women. They told us that if they became ill, they would have no choice but to go on public assistance, which would not give enough money to enable them to sufficiently support their children. Although they had good jobs, they needed a subsidized day-care centre for their pre-school children because they could not afford a permanent, fulltime sitter in their homes. Again and again, we heard that same message from young women and men. (Don't forget that some men are also sole-support parents.) Those single parents wanted well-supervised, high-quality day care centres so they would not have to worry about their children and so the children would be given the intellectual and psychological support they needed. That is the sort of centre we recommended. I remember the women, all over the country, who wanted to plan the size of their families and to space their children effectively. They were upset and angry because, at that time, it was illegal to disseminate contraceptive information. Doctors were not allowed by law to tell their patients how to avoid an unwanted pregnancy. That law was broken quite often. For example, there was a remarkable woman in Winnipeg during the 19405 who organized a family-planning brigade. She was the wife of the city coroner. She had a hundred helpers who visited

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women who were exhausted with child bearing and unable to afford another baby, let alone feed and clothe those they had. These women were taught how to use a diaphragm, which would ideally be fitted by a doctor. I greatly admired this woman called Mrs Speechly, and I am sure her efforts were appreciated by the women who came under her care. I am quite sure that the publicity during the public hearings about the need for contraceptive information influenced the federal government because, in 1969, it amended the Criminal Code to legalize the dissemination of birth-control information. We did not hear about reproductive technology - I guess not much had been done at that time. But we did hear a great deal about the usual system of reproduction. For example, when in Vancouver we opened the meeting to remarks from the audience, a young women stood up. I don't think she could have been more than sixteen. She said, "I have come down from Prince George, five hundred miles, just to say, Don't make a girl of thirteen get married just because she is pregnant - it's not fair to her. It's not fair to her husband. It's not fair to the baby." I also remember the Aboriginal women from the reserves, because they were so eloquent. Aboriginal people have maintained an oral tradition for centuries and have the gift of words. One Aboriginal girl who was in grade twelve talked about the importance of education for Aboriginal girls, and how inadequate it was on the reserves. After she had finished reading her brief, I asked her, "What do you want to do with your education?" And she said, "I want to go back to the reserve and teach the children." Another Aboriginal woman told us the clear and poignant story of her life. She had left her reserve to look for a job in a western town. She had very little education and no saleable skills. She had never even used a telephone. She had only three dollars in her pocket and did not know where to go for help. That statement made us recognize the assistance that Friendship Houses and similar places offer to women coming in from reserves. That particular young woman said it was very important for women to have a safe place to go to. Our research found that indeed Friendship Houses make a great difference. Soon after our report, this need was recognized in many places. I think it is necessary, not only for Aboriginal women, but for any woman coming from the country to the city. Imagine yourself in the same situation with very little money, no skills and no friends. I remember another girl who came alone. She was quite calm and presented a well-written brief. She said, "I want to explain that the

192 Florence Bird

counselling in the schools is not all it should be. I want to be a veterinarian. Every time I told that to the school counsellor she put down 'nurse' on my form." As a result of our research, we found that some counsellors were telling girls that women were no good at sciences or maths. They were saying things like, "You should not try to be a vet because it's not a nice job for a woman." Attitudes have changed for the better since then. The other day, I reviewed some statistics about education in Ontario. In 1968, when the girl told her story, only 6 percent of veterinarians in the province were women. Today, that figure is 49 percent. Maybe our recommendations helped. I will never forget what happened when the Canadian Labour Congress presented its brief. One of the vice-presidents of the CLC was Huguette Plamondin. The opening remarks were made by Donald MacDonald, at that time the president of the CLC, who gave the impression that the Congress was run by women for women. Huguette Plamondin spoke next. Eloquently, she said, "Our president has talked so much about all the things that the unions have done for women. Well, I want you to know that they have not done nearly enough. I am one token woman vice-president out of thirty-seven other vice-presidents. I wanted you to know that they should do more. They should get more women to join unions. They should help them more." I looked at MacDonald's face while she was talking, and his jaw literally dropped for a few seconds. Then he adopted a deadpan poker face and listened impassively. I saw him a few days later and mentioned my observations to him. He said that he had been completely astonished, and had had no idea that she was going to speak up like that. Speaking of poker faces, I must tell you that there are moments when the chair of a royal commission needs to put one on just as the president of the CLC did. I recall a huge man dressed in a black suit, who sat in the front row of the audience. Suddenly, he sprang to his feet. He seemed to be about eight foot tall, and he shouted, "Any woman that smokes should be burned alive." I was worried because I knew that one of the women on the Commission smoked during the hearings, so I put on my poker face and said, "You are out of order, but if you come to me after the hearings are over we can discuss it privately, because it is such an important matter." Fortunately, by the time he came to speak to me, he was soothed down and did not cause trouble. I remember another woman who was responsible for poker faces from all of us. She started by saying, "I just want you to know that no royal commission can give a woman what a man has inside the crotch of his pants." It was funny, but no one laughed, I didn't say anything, and she became embarrassed.

193 Reminiscences of the Commission Chair Then there was a group of youngsters in Toronto who began by saying, "We think you all should resign." I responded, "Why do you think that?" and they said, "Because you are all too old." "Well," I said, "I think that perhaps it's a little bit late to resign now, but would you just let us hear your brief." We had read it before, and there was nothing in it that we objected to. For the young, the generation gap always seems wider than it really is. I remember three young men, hospital interns from Montreal, who came before us. They said, We thought of marching on Parliament Hill, but since you are here we decided to come to you instead. We want to tell you about what happens to women who have committed abortions on themselves. They tear themselves with knitting needles and coat hangers and, sometimes, they injure themselves so badly that they can never have a child, or they have terrible infections and they die. And that happens often too if they go to an abortionist on a back street. We also want to tell you about some of the women approaching menopause, which is often a time when a woman thinks that she is going through change of life, but she is not, she is pregnant. Her children are grown up. She is perhaps going back into the labour force, and she isn't expecting ever to have a child again. Those women are in despair when we see them at the hospital while they are in labour. So please do something about it so they can have legal abortions by doctors in a hospital. Someone in the government may have seen that interview on television because in 1969 the Criminal Code was amended so that it became legal for a hospital committee of three physicians to order a therapeutic abortion to take place in a hospital if they believed that the life or health of a woman was in danger. I also have a very lively memory of a group of Aboriginal women who came to us from a reserve across the St Lawrence river from Montreal. Therese Casgrain, that marvelous fighter for women's rights who did so much to get women the vote in Quebec in 1940, came with them. They told us that the Indian Act should be amended so that a woman who married a non-Aboriginal would be able to keep status for herself and her children, and continue to live on a reserve. At that time, the non-Aboriginal wives of Aboriginal men were given status under the act and so were their children, while an Aboriginal woman upon marriage to a non-Aboriginal was forced to sell her property on a reserve and leave forever within thirty days of her marriage. After fifteen years, thanks to the Canadian Charter of Rights and Freedoms, the Indian Actwas amended in 1985, as we recommended, to correct the gross injustice to Aboriginal women. (About fifty federal laws

1Q4 Florence Bird were amended in 1985 to meet the deadline for implementation of the Charter.) From time to time, the Commission has been criticized because we did not do more research and make more recommendations about violence against women. The commissioners were, of course, well aware of the physical suffering that has been endured by women since time immemorial, because they are sometimes not as strong as men and were not legally protected against sexual and other assaults from their husbands. We did not, however, hear as much about violence as people do today because it was not a subject that was discussed as openly as it is now. I myself, at a private, confidential meeting, heard a shocking story about violence against Inuit women perpetrated by men working on the Dew Line. After I told the commissioners about this, they decided that they had some doubts whether our terms of reference would justify our undertaking the study of such a complicated legal and moral issue. We also wanted to get the report out as quickly as possible while the subject of women's rights was still a well-publicized issue. We decided, therefore, that the subject could be dealt with by the Advisory Council on the Status of Women that we recommended be appointed to do what we had been doing, on a continuing, long-term basis. Today, the Council has continued this work, and I am hopeful that the government continues to give it the funding it needs to carry on the good work. The public hearings did more than increase the knowledge of the commissioners. The shared experience made us aware that the wisdom and good will demanded by our mandate made it necessary for us to work together as a team. Seven strong-minded individuals from very different backgrounds became united in purpose by the power of the land; by the immense, physical power of the country itself; and also by the force of the simple human needs of the people who appeared before us. We did not all agree on the final report or on some of the recommendations, but the majority did. And each of us worked very hard for nearly four years to this end. Those hearings had a profound, lasting effect on me. When I was in the Arctic, I had an experience that made me fully understand, as never before, the universality of human emotions. What happened is this. In 1968, William Murrow, an enlightened and intelligent man, at that time Chief Justice of the Northwest Territories, invited me to accompany him when he went to the Arctic on an Adoption Court circuit. Some time before, he had persuaded the federal government to agree that if an Inuit child is adopted according to the laws of its tribe, it is a legal adoption and the adopting mother is el-

1Q5 Reminiscences of the Commission Chair

igible to receive family allowances. The Adoption Court was responsible for finding out if the laws of the tribe had been obeyed. I was delighted when the commissioners agreed that I should accept the invitation. The CBC asked if a camera crew could cover the proceedings. The judge agreed, and switched planes from his usual Otter to a DC-3 that was big enough to carry the equipment and extra passengers. There was room for one more person, and the commissioners decided that Lola Lange should go too. On a bright morning in August, we flew from Yellowknife across barren lands for eight hours to Coral Harbour on Southampton Island, at the top of Hudson's Bay. The people who ran the bunk house where we were to stay had been told that the chair of a royal commission was coming. They took it for granted that this was a man because no woman had ever been a chair of a federal royal commission. They were shaken when I came walking in. They had arranged a private cubicle for Lola Lange, but they didn't know where to put me. A great deal of desperate discussion went on until someone remembered that the cook was on leave and so I could have his room. I carried my suitcase down a corridor and into a room. I was fascinated to see that the walls of the room were plastered with pin-up art. Maybe it was cut out of Playboy. It was very sophisticated, although I'm not sure "sophisticated" is the right adjective to describe it. Certainly it was very educational for anyone concerned about the status of women. The Adoption Court was held the morning after we arrived. Lola Lange and I walked one hundred or so yards from the bunk house to a small community hall. As we approached the door, a Mounted Policeman jammed a flag staff into the hard earth. The Maple Leaf flew out in the chill Arctic wind, and the community hall became a court house. It was the month of August, but it was cold in that room. Mr Murrow had found me a wonderful red parka. I was wearing ski underwear, a flannel shirt, and a Grenfell cloth jacket. My legs were covered with heavy woollen pants, Royal Mounted Police felt boots, and two pairs of woollen socks. And the chill was into my bones. There were about twenty Inuit women sitting there already when Lola Lange and I slipped into the back row. The men had all gone fishing. Those women were very, very nervous. They talked in low voices. After a while, the judge came in with his law clerk and a lawyer. They removed their gowns and small white ties from a suitcase. There was an Inuit interpreter present, and the lawyers and the clerk sat in a far corner. The judge sat in the centre of a raised platform, with the interpreter beside him. There was a table in front of him and a chair facing him. By the time he was dressed in his gown and tie, the room had become silent and you could feel the women's tension and worry. When

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the interpreter called out a name, one of the women came forward and sat down. The judge asked her a number of questions that she answered with the interpreter translating each in turn. After about fifteen minutes, the judge said, "The court is convinced that your elevenyear-old son has been legally adopted according to the laws of your tribe." After the judge's words had been translated, the woman stood up, and turned to the other women. Her face was beautiful, radiant with relief and joy. She spread her arms wide in a sharing gesture of happiness. As I looked at her, tears in my eyes, I understood with my mind and my heart that there is no difference in essential humanity between any of us who are women.

CHAPTER SEVENTEEN

The Machinery of Women '5 Policy: Implementing the RCSW MAUREEN O'NEIL AND SHARON SUTHERLAND

Ce chapitre examine, d'abord theoriquement et ensuite par un survol historique, la question du choix des outils et des structures d'intervention de 1'Etat dans le contexte des recommandations de la Commission royale. Les auteures soulignent 1'importance de la coalition entre les groupes et les personnes qui evoluent a 1'exterieur de 1'Etat et les groupes et personnes qui ceuvrent de 1'interieur. L'affaiblissement de cette coalition, conjuguee a la nouvelle donne economique, explique pourquoi on assiste a une certaine remise en question des acquis des Canadiennes depuis la publication du rapport de la Commission.

INTRODUCTION

The first task of this paper is to bring some order to our own ideas about three questions that were put to us to direct our thinking about the state of progress on the twentieth anniversary of the report of the Royal Commission on the Status of Women. What is the role of organizational form in terms of making changes in substantive policy? In seeking change, is it better, for example, to name advisory councils or royal commissions, to establish "bureaus" inside departments, to create publicly funded but independent institutional monitoring bodies that report directly to Parliament, or to fund interest groups? Next, what are the limits of government action? What are government's capacities as we approach the turn of the century? Finally, and on a related theme, were there major structural events that affected the state's ability to bring about an agenda of social change? Our hope is, of course, to make an attempt at suggesting how women can generate and sustain a third wind in our attempts to bring about

198 Maureen O'Neil and Sharon Sutherland

broad-based improvements in the conditions of women's lives and work in Canada. The report of the Royal Commission on the Status of Women was the first comprehensive and concerted attempt to make changes in the lives of Canadian women, of the female half of the population: it contained opportunities of all magnitudes, from incremental to revolutionary. The second wind to keep up the pressure after the first wave of reform brought about by the Commission was, in our view, the National Action Plan of 1978. Even though many women's groups criticized it at the time as too little, it provided a medium-term agenda that was manageable by the structures in place in the government system at that time. It coordinated energy and focused attention because it built on the contemporary political consensus. In any event, twelve years later we find ourselves with no plan, for many kinds of reasons. The Royal Commission on the Status of Women (RCSW) brought progress in a number of areas - without begging the question whether the change was enough or even all that could have been hoped for in the context - because it did manage to bring about a strategic "marriage" between the interests of women's groups outside government and the forces inside government, both political and bureaucratic, that were ready and well situated to push for change. The report provided policy content and policy goals, and the partial implementation - for the government did not endorse the whole report as its own policy - found a method that could generate and sustain movement for a number of areas. The ideas on organizational forms, what we call "machinery," were not orthodox, but whether that mattered at the time is a different question. To anticipate somewhat, our view is that it is rare that machinery questions would be of major importance in the context of policies of the scope anticipated by the RCSW. The plan of the paper is to break up the guiding questions into a number of narrower questions: - What are the tools that are in principle available to a government to bring about social and economic change? - Which of these tools or instruments of government were implied or presumed by the Royal Commissions's report? That is, which tools did the Commission think that the government could or would use? - What do we know about the actual capacity of governments to wield these tools? That is, which were even potentially available for the implementation of the report? - What was done in "machinery" terms to set up the structures that would try to implement the Commission's recommendations? How have structural changes and policy intervened? - What does it make sense to try next?

1Q9 Implementing the RCSW

In the course of the paper, we want to make and respect (this being harder) a number of distinctions in the language of the "what" and the "how" of trying to make changes in social and economic life through government action. Beginning with the "what," it is simple and useful to distinguish between, first, the government's ability to implement policy that affects the lives of large numbers of women and, second, its own ability to create and maintain a workforce in keeping with its own equity goals. In the first category are the big issues of concern to women - the burdens associated with reproduction, including day care and health and fertility issues; questions of the equal status of women before the law in all of its aspects; the distribution and progress of women in the national labour force; and the conditions of native women and particular disadvantaged groups of women. The face of the government's own workforce and even that of the political elite is a very much narrower question. The civil service can serve as a demonstration project for other major employers. Thus its composition has importance in symbolic and motivational terms. This is true also for the House of Commons and even cabinet. But there is no necessary spillover into society-wide policy, no necessary association between the government as a model employer of women and what the government will try to do to assist women in society in general. Moving to the "how" or the means of implementing policy changes once the goals have been agreed upon, it is important to be clear that the structures that are part of government, attached to or associated what is often called the "machinery of government" - are not the same thing as policy instruments. Policy instruments are the tools of government, a small number of very imperfect means of getting some movement in the right direction in a policy area. The policy instrument has to be suited to the goal, the times, the resources available, and the importance or degree of change that is wanted. Although it is often attempted, you cannot choose a policy independently of the means that are available for putting it into effect. Machinery of government is, on the other hand, the question of mandating and situating an organization so that it can do an adequate job of controlling, monitoring, or prodding whatever momentum has been started through the choice of substantive policy goals and instruments. These modality questions are secondary only to the content of policy and the method of implementation. TOOLS OF GOVERNMENT

What do governments do? Christopher Hood is one of a handful of scholars of government and public administration who has systemati-

2OO Maureen O'Neil and Sharon Sutherland

cally approached the question from the perspective of the tools that governments use. In two seminal books, he describes the tool kit that government has at its disposal for shaping our lives.l Hood identifies four basic instruments - "nodality," through which government learns about society and then makes use of its information and central position to bring about change by communicating with the population; "treasure," whereby government takes in revenue from the society and, in turn, seeks public goals by making payments to individuals or groups; "authority," whereby government makes laws and rules, and provides in operational terms for their enforcement; and "organization," whereby government sets up the structures (hospitals, schools, transportation infrastructure, administration of taxation and policing, and so on) to act directly on society to bring about a changed state of affairs or to hold it at a particular status quo. Hood characterizes each tool or instrument on several dimensions, of which we can mention a few. First, how does it work, or what exactly is traded between the government and the population? Factual information is different from exhortation, which is different again from transfers of money according to different criteria, and from buildings and staff that might create a product or a service. Second, what is the level of constraint that is exerted in making use of the particular tool? Publishing a government report on causes of degenerative diseases is different from the printed message on the cigarette boxes, and different again from regulating tobacco advertising or forbidding smoking in public buildings. Finally, what are the factors inherent in the instrument that limit its utility? Can the tool be targeted precisely on a particular population, for example? Is it credible in relation to the size and type of problem for which it is proposed as a solution? Taking a few liberties with Hood's terms, one can summarize the tools as follows: A Nodality or messages: governments persuade, give advice or information 1 lowest constraint; 2 wide variety of modes, strategies from narrow responses to queries, to propaganda; 3 limiting factor is credibility. B Treasure or payments: governments raise revenue through many forms of taxation, and use wealth in cheque-book government; 1 moderate constraint; 2 variety of modes including payments for services, or payments to groups, bounties, grants; 3 limiting factors are social consensus, clarity, and control of entitlements, and affordability: the treasury must be replenished.

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C Authority or laws: governments demand, forbid, guarantee, adjudicate; 1 potentially high constraint; 2 variety of modes from licenses to allow particular individuals to do certain things, to blanket rules applying to everyone; 3 limiting factor is size of population affected and thus the government's capacity to police its instructions, as well as the legal standing of the order. D Organization: government uses its own organization (people and equipment in government settings) to act directly: "programs" within departments and agencies; 1 high constraint; 2 most basic or essential "tool" because it is through organization that government monopolizes the activities that define the state; a) individual treatment, where government acts directly on the persons or property of particular persons or organizations 1) sorts, classifies, inspects, marks ...; 2) storage and custody (asylums and prisons); 3) transportation and distribution; 4) "processing" (controlling or marking stages); b) group treatments (transportation ... crowd control ...); c) control of or alteration of the environment ... including public works; 3 limiting factors are capacity of state, size of population to be affected, social acceptance, affordability ... must be replenished, serviced. A basic lesson is that constraint - the use by government of its own employees and equipment in its own organizations - is the necessary companion of certainty. As in the rest of life, the best thing is to do it yourself if you must be certain that the thing will be done. The second lesson is that certainty and constraint both cost heavily in terms of money and social tolerance. A former Liberal minister has spoken of the invisible hierarchy of cabinet ministers as a ranking founded on whether the portfolios deal with macroeconomic and typically masculine endeavours as opposed to areas that are extensions of domestic activity. One could equally well, and in a complementary way, describe a hierarchy in terms of the potential access of the minister to the range of policy instruments. One can summarize what governments do empirically tend to do in the matter of instrument choice from the research and analysis of Renate Mayntz (as reported in Hood's Tools of Government) and Christo-

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pher Hood. They talk about typical instrument choice independently of the ideology and style of particular partisan governments. Hood brings to the forefront the fact that in making policy in any area, the size of the potential clientele or target group is perhaps the most crucial factor. The larger the clientele, he says, the more the necessity to limit government action to passive and general instruments (primarily persuasion) because of affordability, and the capacity of government to deliver, and thus credibility. This criterion in fact flags the limits of state activity in any particular policy environment. Hood places heavy emphasis on the importance of social consensus within any policy environment, both as to the priority of a particular issue and on the acceptability of particular tools. People can agree enthusiastically on what ought to be done in a given policy environment while disagreeing sharply on a problem's relative importance in the whole agenda, and on the amount and kind of coercion they will accept to reach a desired goal. Overall, Hood notes, governments have moved from an emphasis on regulation in the nineteenth century, through direct action in the twentieth century, to a current reliance on "cheque-book" government through payments and entitlements. The capacity of government to use the full range of instruments in any given policy area is now more in doubt than ever, whether from an objective or only felt lack of affordability. Mayntz' "rules of thumb" of the empirical regularity in use of instruments are as follows: - Where government is dealing with networks of organizations, it will tend to avoid direct action or any high-coercion tool in favour of persuasion. - Rules and laws alone will not move people to comply if there is any element of real freedom of choice. - Redistribution of income or of access to any social good will require direct constraints and enablements through the use of government organization. - There is a law of diminishing returns from adding instruments and initiatives rather than substitution: fewer and clearer initiatives are better than action on a multitude of fronts. In effect, the Hood and Mayntz precepts would predict that, in terms of taking action to radically improve the status of more than half the population in an environment characterized by felt scarcity, diversity, conflict, and a variety of forms of organization embedded in the client environment, the feasible range of state initiatives could not be very im-

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pressive. In a democracy, it will be very difficult to lead a population through a contested strategy with its own pocketbook. It is, therefore, a tribute to the dedication of the players to be described below that on several issues this was in fact achieved - maternity benefits, sexual assault legislation, employment equity, and pay equity among them. WHAT TOOL KIT DID THE ROYAL C O M M I S S I O N HAVE IN MIND?

The commissioners believed that the advancement of women was foundational to the amelioration of society: if the position of women could be made more secure and autonomous through equal participation in educational and economic opportunities, people would in general postpone mating and child rearing until they were quite certain that they could form a long-term couple and family unit.2 The family unit would not be threatened by the emergence of women into public life but would be strengthened in all its aspects. The approach adopted in the report was three-pronged: 1 to comb and review substantive policy in areas important for women - family law, employment, child care - to analyze the general direction, and to look for anomalies creating or perpetrating inequalities; 2 to find a way to redistribute the opportunities for interesting and well-paid work as a good in itself and as the motor for bettering the lives of women; and 3 to take opportunities for changing attitudes through the symbolic representation of women and also through directly addressing stereotypes in government and educational documents. The report's model for redressing substantial inequalities is consistently that of providing equal opportunity. Assumptions are that: - the choice of whether to take employment in the paid labour force should be available; - affirmative action will be necessary for a time; - child care is a social responsibility; - women have some special needs as bearers of children that society has a responsibility to alleviate, but social supports to the reproductive function are to be understood as wholly separate from the right of the individual to control her own body (fertility and abortion). In short, equal status for women will come about through providing entry for women to the work world, while also providing for so-

204 Maureen O'Neil and Sharon Sutherland

cial sharing of the burden and costs of reproduction and child rearing.3 The report's recommendations fall into the following categories: women in the Canadian economy (employment, etc.); education; women and the family; taxation and child-care allowances; immigration and citizenship; and criminal law and women offenders. The "plan for action" provided that: - each Canadian government should establish a committee of administrators to oversee implementation of the report; - each Canadian government should establish a Human Rights Commission to oversee its own legislation; - the federal government should establish a Status of Women Council, reporting directly to Parliament, to advise, propose legislation, conduct research, establish programs to change public attitudes; and - each province or territory should establish a government bureau or other agency to oversee programs. The report did not go through a stage of detailed working out, interpreting in political terms, and costing the instruments or modalities that might be available to the implementation team in the various fields of proposed activity. The detailed recommendations were presented within each category as a kind of shopping list. The great majority proposed either single rule or law changes, or asked organizations to review their policies and to find and remove anomalies in order to bring their practice into line with generally understood guidelines of equal treatment of women. But others, particularly in the categories of the economy and the family, were in fact revolutionary, implying massive investment in organizational infrastructure at all levels of government. The Commission hoped to bring about a global social and economic reform in a political system characterized by federalism: the policy jurisdictions interact in unpredictable ways and are sometimes joint. This the Commission, of course, recognized, and it framed its recommendations in terms of the appropriate jurisdiction or in terms of cooperation across jurisdictions.4 Overall, the Commission thought that both levels of government could, and would eventually, use the whole panoply of measures at the disposal of government. It did not shrink from recommending the use of the most expensive and highest-constraint instruments in the area of the economy and the family, while it concentrated heavily on redress of the law and symbolic changes in the areas of immigrant women and women in public life. One can provide some examples of the projected involvement of gov-

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ernment authority, payments, and direct administration by government organization. Recommendations in the area of women and the family (recommendations 102 through 129) concentrated upon payments, although there was important potential use of organization or direct programming as well. Thus it was recommended that the federal government cost-share both capital and operating costs for day-care structures, amend its National Housing Act to provide other funds as well as standards for the construction of centres; that the provinces entice municipalities to provide day care by contributing 80 percent of costs; and that fees be subsidized or redistributed so that they would be proportional to parents' income. Important redistribution was proposed regarding taxation and child-care allowances. Other permanent organizations were to include Child Care Boards, modeled on school boards, and a federal Advisory Council that would, among other things, advise the provinces. A number of other recommendations, technically in the "poverty" chapter but conceptually in the area of women and the family, deal with a guaranteed annual income for oneparent families and with a provincial and territorial system of hostels for transient women that would include counselling services. The Commission did not forget about the realities of the social structure. Another revolutionary recommendation was that each provincial and territorial government establish a Household Workers Bureau to set standards, to regulate, and to protect persons providing paid labour to individual households (recommendation 67): any "housework vacuum" as women left their homes for the labour force should not be allowed to create an underclass of household workers in its undertow. The thirty recommendations in the educational area likewise include some high-resource-use proposals for the establishment of program, that is, organizational, capacities. Recommendations that involve establishing organizations include those to pursue dedicated curriculum review in schools, provide guidance counselling in schools and universities, hire special personnel for Canada Manpower Centres, and provide educational and training programs especially for women on a part-time basis. The commissioners were sensitive to jurisdictional issues in framing their recommendations: the provinces and territories should undertake organizational responses to serve women with families who wanted to continue their education, and to provide programs of education for household workers. Those of us who have worked or who still work in government feel the results of the Commission's attempts to encourage government to be a model employer of women. Recommendations 46 and 61 pro-

206 Maureen O'Neil and Sharon Sutherland

pose the establishment of a woman's program coordinator in each major crown corporation, agency, and federal government department, and specify the creation of a Women's Program "secretariat" in the Privy Council Office (PCO) to deal with the equality of women public servants, including monitoring and reporting. THE M A C H I N E R Y OF THE ATTEMPT TO I M P L E M E N T THE REPORT

The Royal Commission on the Status of Women transmitted these recommendations to Cabinet on 28 September 1970. The Commission's report was tabled in Parliament at the end of December. In its plan for action, as noted, the Commission called for the creation of these new institutional forms: - implementation committees (federal, provincial, and territorial) to coordinate and expedite the recommendations that were essentially accepted in the governments' policy responses to the Commission; - human rights commissions; - status-of-women councils. One can offer some impressions of the machinery that emerged as a result of these recommendations, primarily but not exclusively in reference to the federal government, and some observations about related problems. Implementation Committees and the Minister Responsible

On i January 1971, Freda Paltiel was asked to come over to the Privy Council Office from her position in the Department of National Health and Welfare, to review the recommendations and prepare for the implementation of the Commission's report for the federal government. At the same time, the position of Minister Responsible for the Status of Women was created,5 and the Hon. Robert Andras (Minister without Portfolio at the time, then Minister of State for Urban Affairs from 30 June 1971, and Minister of Consumer and Corporate Affairs and Registrar General from 28 January 1972) was appointed to this responsibility. The role of the Minister Responsible for the Status of Women was to ensure that the cabinet understood the potential impact on women of whatever issue was before it at the time. The Minister was to represent women's interests; to move plans of action forward

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by coordinating the initiatives undertaken by other ministers through their resources of money, organization, and personnel; and to propose alternatives. It was understood that the Minister would carry a significant departmental portfolio (that is, one bringing resources) besides the responsibility for women; thus no real resources were associated with the responsibility. The important attributes of the Status of Women Minister were understood to be the recognized power that is borne in the status of the primary portfolio; an interest and expertise in the issues important to women; and effectiveness in convincing cabinet colleagues to act, which is naturally associated with the access the Minister has to the Prime Minister. (Thus Marc Lalonde is the most powerful minister to have accepted the Status of Women responsibility, because he had access to the Prime Minister, held significant cabinet portfolios, and was central in the party.) It can be noted, then, that the "minister responsible" technique was substituted for the report's desired mechanism - the establishment of a reporting relationship to Parliament. Given that the government had not adopted the RCSW recommendations as its own policy but wished to proceed incrementally, it is difficult to see what else might have been done. The federal approach to preparing for implementation was pragmatic. Essentially, it meant assessing the political and social "doability" of individual recommendations for the Minister and cabinet. In approaching this task, Mrs Paltiel was innovative, encouraging the maximum by bringing together key public servants and private citizens who were the deeply involved experts on the issue. This was a first. To quote Mrs Paltiel, this approach, which was a strategic marriage of public servants from inside and groups from outside, "broke the paradigm." This strategic alliance was a formula that would work to produce incremental change for women over many years. The timing and substance of what was done were also clearly pragmatic. It was often said that the "easy" recommendations were acted on first. This is somewhat tautological and misleading. As Freda Paltiel has said, "We had to first tackle the recommendations that did not rely on winning the debate for a change in philosophy." In effect, implementation did begin in the areas where there was consensus. Sometimes this pragmatism translated into flexibility that brought about immediate gains. Indeed, with the Commission's report in hand, very early on Mrs Paltiel was able to intervene in a discussion about reform of the unemployment insurance legislation. As a result, for the first time Canadian women had access to maternity benefits. This was not a "perfect" solution, but it was a partial solution. More importantly, it was a first step. One can also observe that it is not in the least surprising that many of

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the successes of the RCSW came in the area of law, in bringing it up to date with the best current level of the social consensus. Provincial implementation committees were proposed without permanent staff (organization) or a designated minister through whom communication with provincial cabinets would be channelled. They were simply supposed to "do." Some provinces went this route, but because the implementing committees had no fixed place or status, they were doomed to fail or dwindle away. The idea simply failed to take into consideration how implementable decisions are arrived at in government. Committees of public servants may recommend, but they cannot make policy independently of the political level, let alone start the process of implementation. In fact, it is hard enough for an inside agency with a minister to influence policies for the benefit of women. It was not until the igSos that all the provinces had a machinery in place to track policies and to liaise with the federal organizations. Thus it was not to be until almost ten years later that a new machinery finally "jelled" with the first meetings of the federal and provincial ministers responsible for the status of women. These meetings of course could not take place until the provinces finally had their institutional bases in place. The most important policy changes of the 19805 were to come from this federal-provincial institution. Advisory Council

The Commission clearly saw the advisory council that would be established by the federal government as embracing both federal and provincial issues, since its report contained no reference to provincial councils. While it did refer to the establishment by each province and territory of a government bureau or similar agency concerned with the status of women that would have sufficient authority to make its work effective, the Commission saw these agencies as cooperating with the federal advisory council, which was to be the senior body. This would have been an odd arrangement in the Canadian world of federal-provincial relations. The federal government is not understood to be the senior government, but rather as a government with some parallel functions and responsibilities (whether accepted as legitimate or not), and with the majority of its responsibilities in separate areas. Apart from the federal government, Quebec is the only jurisdiction to have established a well-funded advisory council. One general difficulty with advisory councils is the same as with implementation committees: lack of status within the decision-making hierarchy. A second problem is that the definition of advisory councils shifts or equivocates between expert and "representative." Ministers of government, who

aog Implementing the RCSW have their own theories and constituents, may want to balance the views of those council members who want change (in the direction of making women more autonomous) with other appointees who want to maintain the status quo or even to adopt the REAL Women program. Human Rights Commissions Human rights commissions6 and related bodies have certainly resulted in legal breakthroughs. However, we still do not have an example of a really effective systemic approach to discrimination against women. The federal Human Rights Commission arguably has "power" to take a systemic approach under the Federal Employment Equity Act. Even though legislation may apparently provide for a broader approach, its activities, as those of the provincial commissions, are overwhelmingly based on individual complainants' bringing forward complaints.7 Women's Voluntary Associations The true "second front" came about as a result of the Commission's recommendation that all levels of government make greater use of women's voluntary associations and increase their financial support both to women's voluntary associations engaged in projects of public interest, and to voluntary associations working in fields of particular concern to women. Thus, although it was not mentioned in chapter 10 of its report as part of the package for ensuring implementation, the Commission explicitly recognized the importance of women's activism as part of the machinery for achieving positive changes for women in social attitudes and in legislation. As paragraph 150 states: Much of the credit for equal pay legislation is due to women's associations which tenaciously solicited provincial and federal governments. They have urged Canadian ratification of United Nations and International Labour Organization conventions relating to women ... Not only have they been instrumental in bringing about reform, but they have served the role of keeping governments informed of women's views on current affairs. From this was born the Secretariat of State's Women's Program, the key to supporting groups that work for change across the country. Only since the early i g8os has there been a substantial political disaffection with the Women's Program grant recipients, and an associated political pressure to scale down or even shut down the program.

2 io Maureen O'Neil and Sharon Sutherland The Public Service Equity Machinery

A final machinery element in the Commission's report was a proposal for a Women's Program Secretariat in the Privy Council Office. This secretariat would be the senior body to receive the reports of coordinators in all departments, crown corporations, and even the Senate and House of Commons. A requirement was provided for annual reports addressed directly to Parliament. Again, the modality was flawed in the government context. It is the Public Service Commission (PSC), not the Privy Council Office, that manages employment of all public servants other than the top positions of deputy and associate deputy heads. Machinery: Summary

When the Commission reported in 1970, the only organization that pursued women's interests in a concerted way in the federal government was the Women's Bureau in the Department of Labour, set up in 1954. Between 1970 and 1990, there was considerable evolution in terms of policies and the creation of machinery: Machinery

1971 - Creation of the position of a Minister Responsible for the Status of Women at the federal level. - Creation of the Office of the Coordinator of the Status of Women8 (within the PCO), reporting to the Minister Responsible for the Status of Women. Since 1976, that Office has been situated outside the PCO, established as an independent body reporting to the Minister. 1972 - Creation of the Office of Equal Opportunities in the Public Service Commission, succeeded in 1983 by the machinery associated with the Affirmative Action Policy. This is the Women's Career Counselling and Referral Bureau, part of the Management Category Programs Branch of the psc. 9 With this change, women are dealt with along with the disabled, native people, and visible minorities in the PSC Program Development (Employment Equity) Directorate. 1973 - Establishment of the Women's Program in the Department of Secretary of State. 1976 - Status of Women Canada established as a self-standing organization (formerly the Office of the Coordinator in the PCO). - Adoption by the cabinet of a policy aimed at integrating the impact on women of the policies of all ministries.

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1981 - First meeting of federal, provincial, and territorial ministers responsible for the status of women. 1985- Establishment in the Treasury Board Secretariat of employment equity and equal pay machinery. Advisory Bodies 1

973 ~ Establishment of the Canadian Advisory Council on the Status of Women. 1984 - Creation of the Women's Advisory Committee on Employment Equity, reporting to the President of the Treasury Board. Because it may be the inspiration for the next wave of change for the equity concerns of women employed in the federal public service, one should probably also explicitly flag the Task Force on Barriers to Women in the Public Service. The task force submitted its report in 1990.'° Analysis

This looks like a lot of action. It is important, therefore, to acknowledge that the total resource base of the whole machinery as it has developed is very light, given the scope of the tasks described by the policies. One can take just the goal of providing equity for women public servants - the most easily achievable side of the task - as an illustration. Sources inside government estimate that the comparative weight of the bureaucracy that monitors official languages policy is more than ten to one. That is, to make and administer policy concerning the use of language in government is more than ten times as resource-intensive as to make and monitor policy relating to equal treatment for women. One simply cannot claim that a counselling, inspection, or monitoring function exists if resources are totally inadequate to the scope of the task. One can also say something about the effectiveness of the federal Office of the Coordinator of the Status of Women. The Office has a continuing budget, reports to (and is the staff for) the Minister, and plays a role in policy. But its ability to influence policy depends on its ability to coordinate, which is to say that it is at the mercy of many other factors, such as the general orientation of the government; the power and credibility of the Minister Responsible within the cabinet; the form of government machinery; and the credibility and effectiveness of the leaders of the key lobby groups such as the National Action Committee. It may also be useful to say something about the associated government machinery for central decision-making, and how its form can ei-

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ther facilitate the work of bodies like the Office of the Coordinator of the Status of Women, or shut it out. The period 1978 to 1984 was a kind of golden age for the Office. In 1976, the cabinet decided that the impact upon women of the policies of all ministries had to be taken into account and integrated at the cabinet level. Two years later, the central agency structure was altered, and two new umbrella organizations, called ministries of state, were established to coordinate sectorial policies in two areas - economic and social policy. These agencies operated as secretariats to the cabinet committees in these areas there was a separate secretariat for each policy sector, but the others were housed in existing departmental structures (in the departments of Justice and External Affairs, for example) - and they came to dominate and determine both the agenda and the direction of cabinet discussions on many of issues of interest to them. Relevant policy issues moving from departments to cabinet committees had to go through the process of being summarized in an "assessment note" written by staff and cleared through a shadow meeting of the deputy ministers of the departments concerned. This process was ideal for Status of Women Canada. The Coordinator attended the weekly meetings of deputy ministers at the Ministry of State for Social Development and, when required, at the Ministry of State for Economic Development. On really major issues, the staff of Status of Women Canada worked in advance with the staff of the other departments. If agreement was not reached, it was possible to deal directly with the deputy ministers, soliciting their support at the weekly meetings. In the two fora of the shadow meetings, it was humanly possible (or almost) to comment on any or all of the documents going forward to the cabinet in the sector, and to put forward, argue, and even win with an alternative analysis. INTERVENING VARIABLES

In this section we deal with changes in the central machinery of government, the loss of consensus regarding the direction of change, and the contemporary economic malaise. We also present a short update on employment equity in the federal public service. The disbanding of the ministry of state system in 1984 during the short Turner government was a grave blow to the chances of a truly effective policy role for Status of Women Canada as constituted. This change, compounded by the abandonment of the strategy of multiyear action plans across policy sectors, made the task of the Coordinator several times more difficult. Political rhetoric emerging from the government did not change during that period, judging from what is said at First Ministers' meet-

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ings and from the Prime Minister's opening words at the Commonwealth Women's Affairs Ministers' meeting in October 1990. Nonetheless, the attack on the status quo and the accepted direction of change from the anti-choice and traditionalist REAL Women constituted a serious blow. It has had an effect on the unspoken alliance that previously existed between government insiders and activist outsiders working to enlarge women's options. Although the framework of the Secretariat of State Women's Program still existed as of 1990, substantial reductions to core funding for the change-oriented women's groups along with the legitimation of REAL Women - a form of cultural fundamentalism whose main goal is to oppose the opportunities for variety in women's development in favour of the reproduction role in the nuclear family - has reduced the pro-change, pro-choice agenda.11 Underlying these kinds of factors, by the end of the 19705 and through the 19805 the fiscal crisis of the state was in full view. The economic malaise has resulted in decline in the growth of output and productivity; a reversal of the trend toward greater economic equality; a change in the character of the economy towards service jobs, "bad" or marginal jobs, and part-time work; and, most significantly, diminished feelings of collective solidarity. The general shift to what one could call policy-making on macroeconomic indicators over the last fifteen years has meant that neither the attitudes of policy-makers nor objective circumstances favour substantial new investments in public infrastructure (such as institutions for day care) or increased social benefits. Economic policies in the post-Commission years shifted to an emphasis on measures aimed at stimulating the economy on the supply side - less progressiveness in rates of income tax; more indirect taxation; lower corporate taxes; and accelerated depreciation of capital assets and subsidies, and more capital assistance to business. In the 19805 we saw added the policies on deregulation and privatization, as well as attempts to downsize social security systems. This is clearly not a set of policies destined to improve the economic position of the average woman, nor is it one that is conducive to the kind of government action necessary to improve social benefits for women. The "negatives" have soaked up much of the progress that, had economic conditions remained equal, would have resulted from a number of beneficial social trends. Among these beneficial trends were an improvement in women's ability to control their fertility; improved access for women to higher education, including some movement in disciplinary choices (particularly in the professions); and the "normalization" of the life-long commitment to paid work among women. Thus

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while the Commission was correct about the increasing availability of certain kinds of higher education and the liberal professions to women, the importance of education and training as an entry for women to the full range of good employment opportunities diminished.12 Research has shown that the working poverty of women has grown about five times as much as that of men since the 19705. In effect, one might say that the economy has responded to the mass entry of women into the work force during harder times by giving more people less compensation for more hours of paid work in jobs with less challenge. In fact, that women have made any gains at all through this hard period is heroic. Some other factors tug in the direction of improving legal and human "rights" of women: some new international legal instruments, the strategies of the U.N. Decade, and in Canada the Charter of Rights and Freedoms and a climate of enlightenment towards the ability of women to assume full responsibilities in employment and political life. We say "climate" instead of "reality" with regard to women's political participation because much of their elite political representation is quite symbolic.13 Both economic and social factors mediated the impact of the government's attempts to use its own workforce as a kind of demonstration project. In 1967, women represented 27 percent of the public service, almost all concentrated in the lower-paid jobs. By 1988, women represented 43 percent of the public service workforce, with about 60 percent clustered in administrative support jobs.14 There has been progress, but women public servants do not find themselves in a "just new world." The increased amount of government employment available to women is, of course, a clear good in itself: government work tends to be clean and safe work, full-time, associated with pension entitlements and benefits. (Thus privatization of government functions and personnel is often a regressive policy from the perspective of women, because it generates part-time jobs without benefits at the expense of good ones. Restraint generally means a lower proportion of regular public-service jobs and more insecure term appointments, which have been predominantly the province of women.) The proportion of women in the senior management and executive groups has doubled and tripled in the last few years, although it is to be remembered that base numbers were very small and these kinds of jobs are few and far between in any event. Women deputy ministers have only recently surged onto the scene: until the 19808, only two women had filled such high positions. In 1988, women accounted for 23 percent of all deputy ministers, but there were only seven women at that level. In fact, the increase in the numbers of elite women repre-

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sents an exercise in political will, because these very top jobs are orderin-council appointments made by the Prime Minister. No woman has yet filled a deputy minister position in a major economic portfolio, despite the presence of women economists at the head of Statistics Canada and the major "think tanks": women deputy ministers have tended to be concentrated in the departments of National Health and Welfare, Consumer and Corporate Affairs, and the Secretary of State. There is some question whether the so-called feeder groups to the management and executive levels for women will in the normal course of things be large and qualified enough to provide replacements for star women through the next decade.15

L E S S O N S L E A R N E D : H O W T O STAY IN THE GAME AND DO B E T T E R OUT OF THE S A M E T O O L BOX First, what is the role of instrument choice? The high-constraint and expensive methods, we have seen, are the surest methods for bringing about change. But according to students of government, these are also the least-usable policy instruments in application to large clienteles. Governments administer their populations directly when the function is central to them and there is no other choice. They provide income supports when there is strong social consensus, and when they can afford it. Both the lack of public consensus on policies and policy tools and the proliferation of agendas and agencies give governments excuses for inaction or for resorting to rhetorical approaches. Large populations, differences in viewpoints, large numbers of groups, divisions between them — these are characteristics of women's policy. Thus when one sees the government creating a rich variety of machineries in the area of women's policy, it is useful to look carefully at the structures and players to see what these bodies can do. Do they wield the power tools of government? Do they have the right to engage in anything apart from low-key persuasion targeted at decision-makers and politicians who may not themselves have good access to political power? Are the existing bodies really in the nature of understaffed inspectorates and/or counsellors? If the latter is true - and it mostly seems true in the area of women's policy - one might say that the exact form of the machinery does not matter all that much. The simple fact is that Canadian governments have never created an in-house capacity to deliver policy on women. There is no organization below the Minister Responsible - only a certain amount of good will. A proliferation of small and weak agencies at the margins of policy-making and of central administration will undo in confusion (or just the

a 16 Maureen O'Neil and Sharon Sutherland

need for coordination) what they can contribute in dedication. Inhouse organizations without access to government's authority and administrative base will be mostly epiphenomenal to social and political development. The exception to the above rule is when a small piece of in-house policy machinery is well integrated with the machinery of central agencies and cabinet of the time. Status of Women Canada knew such a moment when the centralized ministry system functioned, in effect, as cabinet secretariat and gatekeeper, and when the "minister responsible" designation was in its original form. Between 1984 and 1990, with this system disbanded and a larger cabinet itself reorganized into a complex hierarchical system of committees, neither Status of Women Canada nor the Minister Responsible were what they were before. The 1984-90 system openly functioned with an "inner cabinet" in the form of one of the committees. Here the question of the loss of the senior portfolio by the Minister Responsible took on significance: it is not very likely that a politically inexperienced minister, whose claim to cabinet rank rests on a junior responsibility, will exercise influence. Thus the membership of the key cabinet committee is very important to a minister who wants money, or who just wants to stop money being "saved" at the expense of a disadvantaged constituency, whether in an attack or as a side effect of savings realized elsewhere. Just to take the idea a little further, one can also speculate that senior ministers must listen to caucus (because there is power in numbers) and not solely to the Minister Responsible. Therefore, although it will be important as always to have a dialogue with the Minister Responsible, activist women cannot take for granted that having convinced the Minister Responsible, they have acquired a significant conduit to power. But it is as true now as it was when the Commission wrote its report that women's lobby groups do bring about change. For one thing alone, they change the social consensus that supports policy, and they change the political stakes in making policy. An organization like the National Action Committee (NAG) can help to provide an inside organization like Status of Women Canada with a medium-term "consensual" agenda to manage - one where there is broad agreement on the issues to be moved ahead by the different ministries. While this does not sound very dramatic, it is a fact of life that it is possible to get less. As noted above, the National Action Plan of 1978 was such an agenda, and it was at the origin of virtually all of the major policy changes of the last ten years. Thus the ways in which women's lobby groups approach government, make their views known to the public, and use and influence inside organizations like the Advisory Council to adopt and push their

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agenda, will determine their effectiveness. Obviously, strategy and tactics must be adjusted so that some progress can be made on a coherent agenda, regardless of which party forms the government. An exemplary failure was the post-ig84 reluctance of the NAC to adjust the lobbying strategy that had worked well to push and encourage the Liberal government - that is, the "lobby day" with the party caucus on Parliament Hill. What had been a welcome spur to a Liberal government became a confrontation with a Conservative government. The instant psychic relief gained by the whistlers and shouters is not matched by progress in substantive policy to benefit all women. That open confrontation, however, did give credence to, and therefore sustained, the attack by the Tory right wing on the Women's Program. Note however that to recommend civility in the approach to potential cooperants is not the same thing as a recommendation for sweet "harmony," "compromise," a servile reluctance to debate, nor for the self-limiting of policy recommendations to what appears to be conveniently available at the moment. Given that by definition any party to a bargain gets less than what it asks for, reform agendas must be defined with large and complex root systems and abundant canopy, so that they can lead to and sustain growth despite seasonal setbacks. In addition, the women who do hold jobs in the "national machinery" should be dealt with by women's groups as allies in the struggle for change. The boundaries of what is possible for them to undertake as public servants should be understood and respected. However, they do understand how government is now working and what is legally and materially possible at the moment. Intelligent incrementalism is not necessarily tantamount to standing still. It is salutary to recall that conquered territory not fully occupied can be lost much faster than it was gained. Women's lobby groups should use all the institutions of government, in short, but not depend upon these institutions to bring about a "sea change." There is also no question that "think tanks" (such as the Institute for Research in Public Policy, the North-South Institute, the Fraser Institute, the C.D. Howe Institute, the now-disbanded Economic Council of Canada) and universities could provide an improved base for policy discussion if only they could be encouraged or funded to undertake research on women's issues or even to maintain sensitivity to women's issues in the course of their regular work. Broad-scope policy work in government was one of the first things to be cut back as restraint took hold, and there is a natural tendency towards clinging to the solutions as they were seen at the time that women's inequality was first closely documented. Where the use of high-constraint and expensive tools is

218 Maureen O'Neil and Sharon Sutherland

implied, it will have to be strategically rejustified in the context of the current political debate. Where can one find the detailed histories of key areas where government has not moved in the last twenty years, such as day care? We need more systematic analysis of what happened to various attempts to get movement and the conditions that prevailed at the time. Perhaps women's studies programs can help us here, although it is our impression that women's studies programs have not, so far, been systematically active in documenting the history of initiatives in women's policy in different institutional contexts. Certainly we need much more detailed and systematic work that takes into account the tools of government: what policy instrument works? in what social contexts? in what configurations of machineries and actors? working through what government jurisdictions? under what rationales? How is it that one woman backbencher, Lynn McDonald, could create a revolution in our smoking habits but not in day care? Those who have weathered the last twenty years are experienced, and women will benefit if that rich experience can also be subjected to systematic reflection. CONCLUSION

Is all hope for change irrational in the midst of the fiscal crisis of the state? We do not think so. Politics is the art of the possible, and what seems possible will be attempted. Even in times of economic difficulty, different mixes of policy are possible because we see that they exist in other countries with broadly similar political institutions and similar wealth. Thus there is an enormous need for a continuing and accelerated development of fact-based material on women's situations and on the benefits to society from bringing about improvement in women's lives. The turn-around in the Ontario public's attitudes on the fairness of equal pay for work of equal value is a good example of where the facts made a difference. Their exposure by the Pay Equity Coalition enhanced the Ontario government's ability to implement legislation that seemed otherwise clearly against the Zeitgeist. Thus there can be political gains from "doing the right thing." Activist women must ensure that the possibility of political gain is recognized and seized each time that the elements for advancement in a policy area are in place. EPILOGUE

Since we wrote this paper, there have been important political and bureaucratic changes. In November 1993, Prime Minister Jean Chretien

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further reduced the importance of the women's portfolio by giving it to a Secretary of State rather than to a cabinet minister. Once held by one of the most important government ministers, it had already been downgraded in the igSos. As the press release announcing appointments to the ministry explained, "for the first time a clear distinction will be drawn between Ministers who are members of Cabinet and 'Secretaries of State', who are not members of Cabinet." Mrs Sheila Finestone was named Secretary of State for the Status of Women and also for Multiculturalism, both responsibilities being within the portfolio of the Minister of Canadian Heritage (Michel Dupuy, at the time). The shift to a two-level arrangement of portfolios means that Mrs Finestone as Secretary of State for Women is not automatically entitled to participate in cabinet discussions. She must make the case that her portfolio is affected by a particular policy proposal coming before the cabinet in order to be given leave to attend. On 14 March 1994, Mrs Finestone announced a number of machinery changes. The Canadian Advisory Council of the Status of Women would be wound up, and its research and information functions were to be absorbed by Status of Women Canada. In addition, the Women's Program of Human Resources Development Canada (which had formerly been housed under the Secretariat of State) was to be moved to Status of Women Canada. The consolidation of these organizations was justified on the grounds that it would improve "focus" in order to better advance women's equality and that it eliminated order-in-council appointments (in this case, appointments to the Advisory Council). The Council's closing date was fixed as i April 1995. While some of the Council's budget was lost to deficit reduction, a significant amount was transferred to Status of Women Canada, a share reserved to fund independent policy research. It is in theory possible that the changes could see a net increase in research funds. However, it is really too soon to tell. The "grants and contributions" budget of the old Women's Program for 1995-96 was left at $8.6 million, which is what it was after the general budget reductions of 1993-94. The Secretary of State announced in May 1995 that she was about to begin consultations with women's groups to determine how Status of Women Canada's resources for policy research ought to be allocated, and through what mechanism.

CHAPTER EIGHTEEN

Institutional Structure as Change Agent: An Analysis of the Ontario Women's Directorate1 NAOMIALBOIM

La Direction generale de la condition feminine de 1'Ontario a ete creee par le gouvernement de 1'Ontario en 1983, suivant ainsi les recommandations du rapport de la Commission royale. Ce chapitre, redige par 1'ex-directrice, explore le role de structures telles que la Direction generale des femmes. La cle du succes est la creation d'une alliance entre les structures internes au gouvernement et les structures externes. L'article examine 1'evolution de la Direction generale entre 1983 et 1990.

The Ontario Women's Directorate was established in 1983 as a central advocacy agency within the Ontario government. Its purpose was to help the government achieve its commitment to economic, legal and social equality for women in Ontario. This paper examines the effectiveness of the Ontario Women's Directorate as an institutional agent of change within the government. The paper begins by defining the mandate of the Directorate and describing how the organization works. The paper also examines the evolution of the Directorate and the ongoing need for such a structure. In the last section, I examine the role of politicians and the wider political context for organizations such as the Ontario Women's Directorate. INTRODUCTION

Twenty years ago, Florence Bird wrote in the report of the Royal Commission on the Status of Women:

221 The Ontario Women's Directorate It has been a common reaction in the past, when the problems of any disadvantaged group in society become known, that too much emphasis has seemed to be given to that group instead of common human problems. The danger of creating ghettos is often mentioned. To consider the needs of women separately raises the same alarm. Such a critical reaction misinterprets our intent since our concern with women is to place her on equal terms with men. Then women's rights will cease to be an issue. Until this is done there is an issue. We want for women no special status, only equal status; no separate realm, only full acceptance in the present human world. To achieve this the disadvantages which now inhibit women must be removed. This can only be done by an agency charged with that task ... We are convinced that the continuing efforts to attain and secure equal opportunity for women require a distinct and specific agency devoted to that purpose.2

She then went on to say that each province and territory should establish a government bureau with sufficient authority and funds to make its work effective. The Province of Ontario followed the Commission's recommendations by establishing various structures, culminating with the creation of the Ontario Women's Directorate in 1983. The Directorate grew out of an amalgamation of the Women Crown Employees' office and the Women's Bureau of the Ministry of Labour. Using the federal government model as a point of comparison, the Ontario Women's Directorate assumes all the responsibilities of Status of Women Canada, the Women's Program of the Secretary of State, and the Women's Bureau of the Department of Labour. MANDATE

The Directorate was created as a central advocacy agency with the following mandate: "Through policy development and review, programme coordination, consultation and public education, the Directorate works to enable the government to achieve its commitment to the economic, legal and social equality of women in Ontario." This mandate outlines the tasks and purposes of the Ontario Women's Directorate. A discussion of each role or function follows. Central Advocacy Agency

A central advocacy agency is not a line ministry. It has no significant responsibility for the delivery of programs or for the enforcement of legislation. Rather, it exists to promote the interests of a particular group.

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In this case, as a central advocacy agency the Ontario Women's Directorate has government-wide responsibility for representing the interests of women in all aspects of their lives. It is interesting to note that the Directorate was explicitly created as an advocacy agency. Other ministries, such as the Ministry of Industry and Trade or the Ministry of Agriculture and Food, are not considered advocacy ministries. Yet, the purpose of these structures is also to promote and protect the interests of particular groups. The notion of advocating on behalf of women is clearly perceived differently in our society and in government than is that of advocating on behalf of small business, for example. Policy Development In policy development, the Ontario Women's Directorate's job is to: -

identify issues and trends affecting women; conduct research on those issues; initiate ideas to solve the problems identified in the research; and develop policies to correct the problems, in consultation with external groups and other ministries.

Some notable examples of policy development work conducted by the Ontario Women's Directorate are in the areas of pay equity, child care, and sexual assault. Policy Review The Ontario Women's Directorate acts as a watchdog within government by: - assessing the policies of other ministries as they relate to women's issues; - determining the potential impact of these initiatives on women, whether that impact is positive or negative; and - intervening as early as possible in other ministries' initiatives to ensure that women's interests are protected. Program Coordination One example of the Directorate's coordination responsibility is the wife-assault initiative. The Directorate coordinates twenty-two programs administered by thirteen separate ministries in this regard.

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Funding for these programs comes directly from the Management Board to the Directorate for allocation to the other ministries. Centralizing the initiatives in this way keeps them alive and ensures consistent policy and program orientation. The Ontario Women's Directorate also administers its own programs in the following areas: community grants, community education workshops, consultation services for employment equity, education equity initiatives; and role modelling programs. Consultation

The Ontario Women's Directorate's consultative role is probably one of its most significant functions. The success of any policy initiative depends largely on support and information from key stakeholder groups outside government. Getting that support and information depends on developing good relationships with the external groups. This is not an easy job since outside groups tend to mistrust government. The task is to overcome these feelings and work toward common goals. The Directorate developed a variety of approaches to involve and include community members in its work. These ranged from establishing community advisory committees on specific issues, as well as grant allocation committees, joint community/government committees, and focus groups; co-sponsoring events; conducting surveys and community-hosted dialogues; and hiring community members to do specific tasks and research. Public Education

Public education is, and always was, a top priority for the Ontario Women's Directorate. There are those who say that only three significant barriers prevent women from achieving equality: attitudes, attitudes, and attitudes. The Directorate undertakes many awareness and promotion campaigns to try and change people's values and attitudes; examples include the recent public-education radio and television campaigns that were produced as part of Wife Assault Prevention Month in Ontario; the televised public-service announcements on sexual assault; the film series on sexuality and responsible decision-making for teenagers; and films on women in non-traditional jobs. ROLE OF THE D I R E C T O R A T E

Twenty years ago, Florence Bird recommended that governments provide structures like the Ontario Women's Directorate with five years'

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funding. The Directorate was created seven years ago and still receives funding and operates as a separate institutional structure. We must now ask ourselves whether a separate structure like the Directorate is still appropriate. Alternatively, should women's issues be integrated into each ministry or department? Isn't the whole point of a change agency to do itself out of a job? There are several examples of individual issues that were conceived and nurtured in the Ontario Women's Directorate and then taken over by mainstream ministries. In some cases, those issues have flourished; in others, the outcome has been less positive. It is not merely a matter of handing over issues once they are developed. The task is to develop sensitivity and awareness - indeed, to change the attitudes - of all staff, in all ministries, across government. The desired result is for staff to consider the entire population, instead of only a portion, when they create or revise policies or programs. And, moreover, they should do so automatically, intuitively. The challenge is to help people to realize that their current point of reference is narrow. The goal is to have policies and programs that reflect all Canadians and not only white, able-bodied, English-speaking, middle-class, heterosexual males. Unfortunately, that realization does not yet exist. Until it does, we continue to need separate structures like the Ontario Women's Directorate - not just to move forward, but also to prevent us from regressing, especially at this time. Having acknowledged the need for such structures, however, we must also recognize the need for better ways to work with line ministries and community groups in order to accomplish our goals. It is not possible for the Directorate to achieve its goals on its own. Success depends on active involvement and commitment on the part of all concerned. THE RELATIONSHIP BETWEEN INSIDE AND OUTSIDE STRUCTURES

In the context of this paper, "inside" structures are agencies that work within government and "outside" structures are not part of government. The best way for the Ontario Women's Directorate to achieve its goals is to form a partnership between the inside and outside structures. When a partnership is formed, the best features of both sides come to bear on a given issue. The strength of the internal group is its knowledge of government process, priorities, and personalities. External groups are independent and are closer to the front-line problems. To-

225 The Ontario Women's Directorate

gether, they add depth, expertise, and direction to any issue. A good example of internal and external forces working together is the development of pay-equity legislation. The Equal Pay Coalition played a central and vital role, without which the introduction and formulation of this legislation would never have taken place. The Coalition represented a wide range of groups, including business and professional women, the Ontario Federation of Labour, and the coalition for Better Daycare. It had been in existence for many years by the time the government decided to introduce the legislation and thus brought additional credibility and visibility to the issue. The range of participants also contributed to spreading the lobbying effort among cabinet ministers, so that this effort did not involve "only a group of women's organizations" lobbying and working with the Minister Responsible for Women's Issues but each constituent member of the coalition lobbying and working with its own minister to garner support for the issues, both internally and externally. For the partnership to work well, there must be a recognition by both parties of their different roles. Having common goals does not have to mean using the same tactics. Both sides must recognize that complementary approaches can be very effective. Most important, there must be an element of trust and mutual respect, an acceptance of the fact that different roles need to be played. The role of the Ontario Women's Directorate is not only to act as a funnel of information, although this is often necessary. It must also act as "cultural" interpreter to translate the needs, desires, and frustration of women in the community into something that the government can respond to, while still giving voice to the women themselves. At the same time, the Directorate must translate and explain the realities of government process and the machinery of government to women outside. The goal is to show them what levers to pull and which buttons to push so that they can be more effective. EVOLUTION OF THE DIRECTORATE

The role of the Ontario Women's Directorate as a central advocacy agency has not changed, but all structures evolve and adapt over time. The Ontario Women's Directorate in 1990 is very different from what it was in 1983. When the Directorate was first created, it seconded staff from other ministries with the intention of rotating staff in and out of the Directorate on a regular basis. Consequently, women with government experience and an interest in women's issues worked for the Directorate for a period of time, became more sensitized to the issues, and then took

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them back to their own or other ministries. The Directorate became an excellent recruiting ground for talented women, with the result that there are Directorate alumnae throughout government, including deputy ministers, assistant deputy ministers, and many directors and senior managers. While the strategy was successful in certain ways, the Directorate paid a price for the constant turnover. There was little corporate memory and the organization suffered from a lack of continuity. In the next phase of its development, the Directorate recruited permanent staff, women from the community with excellent experience and commitment to women's issues. The staff also reflected a broader range of women's interests. The organization began to focus more on the needs of immigrant and racial minority women, aboriginal women, and women with disabilities. Because of their background, the staff eventually became linked to a variety of external organizations. But they had less knowledge of government process and of the ability to influence government from the inside. It is a balance between these two models that is necessary for the Directorate - a balance between the internal and external groups and needs, a balance that is so delicate and yet so important. The Ontario Women's Directorate is a microcosm of the women's movement in many ways. We have a collective obligation to value diversity in the approaches to achieving women's equality and to reflect this diversity in the Directorate. Achieving this diversity is crucial to maintaining the credibility of the Directorate, both in the eyes of the bureaucracy and in the eyes of the community. Without credibility, the Directorate cannot do its job effectively. THE WIDER POLITICAL CONTEXT

Working effectively with outside agencies and with the internal bureaucracy are not the only factors necessary for success. To be effective, the structure must have sufficient authority to achieve its goals. The irony is that the greater the political will to achieve equality for women, the less important the structure is. Institutional structure becomes much more critical when there is less political will in order to ensure that these issues continue to receive the priority attention they deserve. The Ontario Women's Directorate must be recognized for what it is - a government organization that is directed by a minister. This minister is an elected politician who is a member of cabinet, the primary policy-making body of government. How important is the choice of minister to the success of internal agencies like the Ontario Women's Directorate? Generally speaking, it

227 The Ontario Women's Directorate

is better to have a senior than a junior minister responsible for women's issues. It is better to have a senior cabinet minister who is part of the "inner circle" and influential with her/his peers - even if it is the senior minister's third or fourth portfolio. This way, women's issues have an effective spokesperson at the table where all policies are discussed. CONCLUSION

The Royal Commission on the Status of Women called for the creation of internal institutions to advocate on behalf of women's issues. The Ontario Women's Directorate is such an agency. By working within government and also with outside groups, the Directorate has had some success in improving the status of women in Ontario since its inception. The work of the Directorate is not done. To quote Florence Bird again: "The magnitude of the changes that must be introduced does not dismay us but we are dismayed that so much has been left undone."3

CHAPITRE DIX-NEUF

Structures institutionnelles en condition feminine — le cas du Conseil du statut de lafemme du Quebec1 MARIE LAVIGNE

Marie Lavigne examines Quebec's Conseil du statut de lafemmeand its role in Quebec society. Created in 1973 in response to pressure from the Federation des femmes du Quebec, following the Bird Report, and in the context of the Quiet Revolution in Quebec, the Conseil adopted a number of strategies aimed at influencing the state. These included policies for specific government departments, education of the Quebec public on women's issues and on the impact of government policy on women, the launching of programs, lobbying to change the legislative agenda, and influence on public opinion. She argues that the current trend towards decentralization and partnerships by the state could have a negative impact on the ability of women to influence government policy at the same time as it enhances the ability of women's groups to influence policy from a local perspective.

En 1970, etait public, apres de nombreuses consultations et 1'examen de plus de 400 memoires, le rapport de la Commission royale d'enquete sur le statut de la femme au Canada, mieux connu sous le nom de « rapport Bird». Get evenement marque le debut d'une prise de conscience de 1'Etat, federal aussi bien que provincial, de son role dans 1'amelioration des conditions de vie des femmes. Dans les annees qui suivent vont se succeder, souvent pour repondre aux pressions exercees par le mouvement des femmes, diverses reformes et modifications legislatives, ainsi que la mise en place de nouveaux programmes. Vingt ans plus tard, il est legitime et utile de faire le bilan de cette activite gouvernementale et d'evaluer les reussites, les echecs et les limites de 1'intervention etatique en ce qui a trait aux besoins des femmes. Plus precisement, qu'en est-il des structures institutionnelles creees par les gouvernements pour les conseiller et les guider dans le choix

229 Le Conseil du statut de la femme du Quebec

des politiques et des reformes en matiere de condition feminine? Les conseils consultatifs mis sur pied dans la plupart des provinces dans la foulee du rapport Bird ont-ils joue le role qu'on leur destinait? Le « feminisme d'Etat» 2 , ou «feminisme institutionnel», a-t-il etc utile?3 Quels ont etc les rapports de ces institutions avec 1'Etat? Avec le mouvement des femmes? Les reponses a ces questions different probablement selon le contexte social et le milieu particulier qui a vu naitre 1'institution, selon la loi qui 1'a creee et selon les modes d'action empruntes au cours des annees. A de nombreux egards, 1'experience du Conseil du statut de la femme du Quebec parait differente de celle d'autres organismes provinciaux, ne serait-ce qu'en raison de sa taille, puisqu'il est le plus imposant des conseils consultatifs sur la situation des femmes, ou encore ne serait-ce qu'en raison de sa conception de 1'Etat. Le Conseil du statut de la femme se considere en effet clairement comme un organisme de nature provinciale, qui n'a de role direct a jouer qu'aupres de son gouvernement. En ce sens, 1'Etat par rapport auquel il faut evaluer 1'action du Conseil du statut de la femme est, bien entendu, 1'Etat quebecois et non pas 1'Etat canadien. LE CONTEXTE QUEBECOIS

Pour bien comprendre 1'experience quebecoise, on ne peut la dissocier du formidable bouleversement social qui s'est amorce au debut des annees 60. Le Quebec vit alors ce qu'on a appele la « Revolution tranquille », qui le fait acceder a la modernite sur de nombreux plans et entraine, avec la croissance economique, le developpement de politiques sociales majeures. L'Etat s'accroit, multiplie ses champs d'action et ses modes d'intervention. On assiste aussi a 1'epoque a une renaissance du mouvement des femmes, qui s'alimente aux grands courants du feminisme contemporain. Toute une kyrielle de nouveaux groupes de femmes s'ajoutent alors aux grandes associations feminines existantes. Ces annees voient egalement 1'emergence d'une action militante des femmes a 1'interieur des structures syndicales et politiques. C'est dans ce contexte en ebullition et sous la pression d'une des grandes associations feminines, la Federation des femmes du Quebec, que le gouvernement du Quebec creait, en 1973, le Conseil du statut de la femme (CSF). LE C O N S E I L DU STATUT DE LA F E M M E

Le mandat donne par la loi au Conseil, comme a tous les organismes a fonction consultative, est principalement d'aviser le gouvernement.

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II est compose d'une presidente, nommee pour cinq ans, et, pour assurer un objectif de representativite, de dix membres provenant de divers milieux: associations feminines, universites, syndicats et groupes socio-economiques. Pour mener a bien son role, le Conseil detient un pouvoir de recherche: il peut entreprendre des etudes, sollicker les opinions du public, former des comites, recevoir des propositions. Par ailleurs, le Conseil a herite egalement d'un mandat d'information tres large. Non seulement peut-il informer la population au sujet de ses etudes, recherches et avis, mais il peut aussi fournir de 1'information au public sur «toute question individuelle et collective concernant 1'egalite et le respect des droits et du statut des femmes 4 ». Double mandat qui a etc, a travers les annees, abondamment exploite par le Conseil et realise par son personnel permanent5. En plus des services de recherche et d'information qu'on retrouve habituellement dans les organismes consultatifs, le CSF a mis sur pied d'autres services et outils d'information originaux au cours des annees. D'abord, un service de renseignement telephonique sur les droits des femmes, accessible de partout au Quebec sans frais d'appel, qui leur permet de connaitre les lois et les programmes qui les concernent, ou d'entrer en contact avec les nombreux organismes gouvernementaux ou communautaires susceptibles de les aider. Depuis plus de quinze ans, le Conseil public une revue trimestrielle gratuite, La Gazette des femmes, dont le nombre d'abonnees oscille autour de 100 ooo. Chaque numero presente, sous forme de dossier, des questions centrales aussi variees que 1'equite salariale, 1'inceste, la situation des immigrantes, les loisirs, etc. Chaque parution renferme egalement des articles d'information sur des projets ou realisations de groupes de femmes, sur les lois qui les interessent ou encore sur la situation des femmes dans le monde. Le centre de documentation du Conseil accueille chercheuses, etudiantes et journalistes. II est considere comme le plus important centre de documentation feministe en langue frangaise en Amerique du Nord. En 1976, le Conseil a cree des bureaux regionaux, qui, en coordination avec les groupes de femmes au sein de chacune des regions, fournissent un eventail impressionnant de prestations aux groupes de femmes et ont joue un role important dans la structuration et la consolidation du mouvement associatif au Quebec. Ces bureaux apportent, encore aujourd'hui, un soutien majeur aux efforts des groupes de femmes regionaux pour rester en contact, notamment en fournissant aide et appui aux instances regionales de concertation, qui reunissent les groupes de femmes d'une region autour de problematiques communes.

231 Le Conseil du statut de la femme du Quebec

L'INFLUENCE DU CONSEIL SUR L'ETAT: UNE PLURALITE DE STRATEGIES Comment s'est exercee 1'influence du Conseil sur 1'Etat quebecois? Quelques exemples serviront a illustrer la pluralite des strategies utilisees par le CSF au cours des annees. La definition des priorites de I'Etat

Le premier de ces exemples est celui de la politique d'ensemble sur la condition feminine proposee dans Pour les Quebecoises: egalite et independance6. Apres quelques annees d'existence, le CSF avait acquis la conviction que seule une volonte politique elaboree a partir d'une approche globale de la situation des femmes du Quebec et d'une analyse de leurs problemes pourrait amener les changements souhaitables. Arme d'un mandat du Conseil des ministres, le CSF s'est attele a la tache. Au terme de nombreuses consultations des groupes de femmes et des responsables de differents ministeres, et grace a une collaboration de plus de 500 personnes, il proposait une politique d'ensemble sous la forme de quelque 5 300 recommandations s'adressant aux differents ministeres et organismes gouvernementaux dans tous les secteurs - education, travail, sante, justice, culture et pouvoir. Adoptee d'emblee par le gouvernement, qui en a fait sa politique officielle, la politique d'ensemble a oriente pendant plusieurs annees les actions des ministeres. En 1979, elle amenait la mise sur pied d'une structure de coordination, le Secretariat a la condition feminine, pour donner suite aux recommandations. La sensibilisation de partenaires

La lutte a la publicite sexiste est un exemple d'intervention de sensibilisation. Le Conseil a suscite, en 1978, la formation d'un groupe de travail forme de representants des industries publicitaires, des groupes de femmes et de divers organismes gouvernementaux. Misant sur 1'auto-reglementation de 1'industrie plutot que sur une loi coercitive, les participants ont convenu d'une definition commune du sexisme et de 1'adoption d'un code ethique. L'action du Conseil a egalement mene a la creation d'un nouvel organisme, la Confederation generale de la publicite, mis sur pied par 1'industrie elle-meme pour assurer 1'auto-reglementation en matiere de sexisme aupres des entreprises et des medias. Le Conseil a cree egalement le concours Emeritas-Demeritas, octroyant chaque annee, des mentions a la publicite jugee la plus

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et la moins sexiste. Avec la collaboration des medias, ces concours, allies a la sensibilisation croissante des publicistes, ont aide a modifier considerablement le paysage televisuel et mediatique en general. L'incitation a la creation de programmes

L'action du Conseil en vue d'eliminer le sexisme dans les manuels scolaires merite d'etre relatee. Une etude du Conseil avail demontre que les instruments didactiques utilises a 1'ecole presentaient des images fort stereotypees des sexes7. Le role parental et domestique etait assume par la mere de deux a huit fois plus souvent que par le pere; les emotions et les attitudes comme 1'affection, la peur, la dependance, etaient presentes comme feminins, tandis que la colere, 1'agressivite, le leadership etaient reserves au caractere masculin; 73% des personnages centraux des manuels etaient des hommes ou des gargons. Les pressions du Conseil amenerent finalement le ministere de 1'Education a creer un programme d'approbation des manuels scolaires en vertu duquel tout ouvrage destine aux ecoles primaires et secondaires devait au prealable etre examine selon une grille concue pour presenter une image plus representative de la societe. L'action du Conseil entraina meme un effet positif pour d'autres groupes, comme les minorites visibles ou les handicapes, pour lesquels on appliqua egalement le programme afin de leur assurer un traitement juste et approprie. L'influence sur les modifications legislatives

Au cours des annees, la pression du Conseil, alliee ou conjuguee a celle de groupes de femmes, a reussi plusieurs fois a convaincre le gouvernement de la necessite de legiferer dans un domaine precis ou de modifier des textes existants pour mieux proteger les interets des femmes. On peut citer a cet egard la reforme du droit de la famille, la loi creant un service de perception de pensions alimentaires, les modifications a la Charte des droits pour inclure certains motifs de discrimination et la loi instituant un patrimoine familial. II est certes difficile de mesurer la part exacte de 1'influence du Conseil sur ces modifications legislatives puisqu'il a mene son action parallelement a celle des groupes de femmes. On peut neanmoins supposer que la diffusion systematique des recherches, des etudes et des avis du Conseil, de meme que 1'organisation ou le soutien a d'innombrables sessions d'information sur ces questions, ont donne aux groupes de femmes certains des outils dont ils avaient besoin pour influer sur le processus legislatif. Signalons enfin qu'il est arrive que le Conseil joue un role preponderant, comme ce fut le cas lors de la preparation du reglement sur les

233 Le Conseil du statut de la femme du Quebec

programmes d'acces a 1'egalite. Sollicite par le ministere de la Justice, le Conseil a redige un projet de reglement8 dont les modalites ont etc largement integrees dans le reglement gouvernemental qui est entre en vigueur en 1986. La contribution aux debats de societe

Le Conseil du statut de la femme du Quebec contribue egalement aux debats sociaux qui concernent les femmes et, dans certains cas, il est meme 1'initiateur de ces debats. La question des nouvelles techniques de la reproduction (NTR) en offre un exemple typique. Des 1984, le Conseil lancait un vaste programme de recherches sur cette question, qui devait deboucher notamment sur un colloque international, sur la production de videocassettes, sur la publication des resultats des recherches, sur la formulation d'avis au gouvernement et sur la creation, au sein du ministere de la Sante et des services sociaux, d'un groupe de travail charge d'examiner la question des NTR. L'apport du CSF a etc tel que 1'integration d'une perspective feministe au debat sur les NTR est devenue inevitable. Enfm, le Conseil a reussi non seulement a susciter une intervention etatique au Quebec, comme en temoignent les modifications au Code civil actuellement a 1'etude, mais il a exerce un rayonnement assez important sur les autres provinces canadiennes par 1'entremise des conseils provinciaux et du Conseil consultatif canadien sur la situation de la femme. Les publications du CSF, largement diffusees et traduites en anglais, ont cree et soutenu un interet pour la question. L'une d'elles, Enjeux (Dilemmas), fait meme partie de la pochette distribute par 1'Institut canadien de recherche pour 1'avancement de la femme aux femmes et groupes de femmes du Canada avant les audiences de la Commission royale d'enquete sur les nouvelles technologies de la reproduction. La creation de consensus sociaux

Un exemple plus recent illustre une autre strategic utilisee par le Conseil pour influencer le gouvernement, cette fois-ci sur la question des conges parentaux. En 1989, le CSF a elabore une proposition precise et originale pour une nouvelle politique de conges parentaux au Quebec. Cette proposition prevoyait notamment la remuneration a 90% de toutes les travailleuses quebecoises lors de la naissance ou 1'adoption d'un enfant et pour les travailleurs qui se retirent temporairement du marche du travail pour s'occuper d'un enfant. La proposition du Conseil impliquait plusieurs decisions majeures, comme la recupera-

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tion des sommes d'assurance-chomage versees au federal et la fusion de divers programmes quebecois d'allocations a la naissance. Au cours de la preparation de sa proposition, au gouvernement, le Conseil a systematiquement consulte et sensibilise un ensemble de partenaires importants: associations feminines et familiales, syndicats, regroupements professionnels et milieu patronal. II a pu ainsi faciliter la naissance d'un consensus de groupes d'interets divergents autour des grands axes du systeme propose. Ces exemples montrent que 1'influence du Conseil s'exerce de facon variee et multiple. Dans de nombreux cas, les pressions qu'il exerce se conjuguent a celles des groupes de femmes et d'autres intervenants, de plus en plus nombreux, qui interpellent 1'Etat. Comme le demontrent certains des exemples cites, bon nombre des actions du Conseil ne s'adressent pas directement a 1'Etat mais cherchent plutot a informer et sensibiliser les femmes et la societe en general. Ces gestes sont tout aussi importants pour permettre aux femmes de connaitre et d'exercer leurs droits et faire avancer les debats de societe. Eventuellement, ils influent aussi sur 1'Etat. LES RAPPORTS

DU C O N S E I L AVEC

LE MOUVEMENT DES FEMMES

Le Conseil entretient avec les groupes de femmes du Quebec des rapports constants. Ces groupes sont systematiquement informes de tous les travaux du Conseil et sont le plus souvent consultes avant la production des avis ou au cours des recherches effectuees. Les groupes profitent de certains services de soutien du Conseil par la voie de ses bureaux regionaux. Des rencontres formelles ou informelles entre les responsables des groupes et le Conseil se tiennent chaque annee. Tout en etant solidaire des actions des groupes de femmes - dont le nombre au Quebec, rappelons-le, est d'environ i 500 -, le Conseil ne se considere toutefois pas leur porte-parole. Les groupes de femmes ont en effet leurs propres mecanismes ou structures de pression aupres du gouvernement, qu'ils utilisent d'ailleurs de facon constante. De plus, meme s'ils partagent la meme vision globale d'autonomie des femmes, les perspectives et les pratiques sont multiples et les situations differentes vecues par les femmes qu'ils regroupent sont tout aussi diversifiees, parfois meme divergentes. Les sages-femmes peuvent representer une certaine concurrence pour les infirmieres, les interets des femmes au foyer peuvent differer de ceux des travailleuses salariees, les regroupements de femmes d'affaires ou entrepreneuses peuvent ne pas poursuivre des objectifs similaires a ceux des comites de la condition feminine au sein de syndicats. Le Conseil doit etre particuliere-

235 Le Conseil du statut de la femme du Quebec

ment sensible a ce pluralisme et viser, dans ses avis au gouvernement, un bien-etre commun.. Le Conseil ne doit pas se substituer aux groupes de pression feminins, qui ont des perspectives multiples et des tendances diversifiees, et il doit conserver intacte la marge de manoeeuvre qu'il possede par rapport au gouvernement pour pouvoir poser le regard critique qui s'impose sur Factivite de 1'Etat. En fait, c'est la un defi que le Conseil doit relever constamment: preserver son autonomie par rapport a ces deux poles dans 1'ensemble de son travail de defense des droits et interets des femmes. AU-DELA DU POUVOIR D'INFLUENCE La fin des annees 70 a marque un point tournant dans 1'organisation du dossier de la condition feminine au gouvernement. Le pouvoir d'un organisme tel que le CSF etant d'abord et avant tout moral, il importait que se developpent de nouvelles instances dotees de pouvoirs formels et d'outils capable de reorienter Faction gouvernementale. Le gouvernement a done cree en 1979 le poste de ministre deleguee a la condition feminine, ce qui a mene a 1'instauration de divers moyens concrets pour assurer une meilleure concordance entre Faction de 1'Etat et les besoins des femmes. Ainsi, la ministre produit les orientations endossees par le Conseil des ministres, de meme qu'un plan annuel des actions des ministeres en regard de la condition feminine. La coordination de Faction des ministeres incombe au Secretariat a la condition feminine. Ce dernier, qui n'etait a Forigine qu'une structure de coordination, gere maintenant certains programmes destines aux femmes, tels les projets pilotes des programmes d'acces a Fegalite dans les entreprises privees9. Essentiellement, le gouvernement provincial a privilegie la responsabilisation de chacun des ministeres charges de realiser ses objectifs plutot que la creation d'un ministere centralise de la condition feminine. C'est ainsi que des structures se sont developpees au cours des annees dans les ministeres. Plusieurs ont nomme une personne responsable, au sein de leur administration, du dossier de la condition feminine10. Le role de ces repondantes est de veiller au developpement et a la coordination des mesures et politiques liees a la condition feminine, et de veiller aussi a ce qu'elles soient conformes aux droits et interets des femmes. Certains ministeres plus importants ont mis sur pied un bureau de la condition feminine, qui emploient cinq personnes, en moyenne. C'est

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le cas des ministeres de 1'Education, de 1'Enseignement superieur, de la Sante et des services sociaux, de la Main-d'oeuvre, de la securite du revenu et de la formation professionnelle, ainsi que de 1'Agriculture. Ce modele de «repondantes» ou de bureaux conseils a aussi etc adopte par de nombreuses institutions du secteur para-public, tant dans le domaine de la sante que dans celui de 1' education, ainsi que par diverses societes d'Etat. Somme toute, meme si elles sont souvent isolees et que leur marge de manoeuvre est mince, le nombre de « responsables de condition feminine » dans tous les domaines de la structure publique n'est pas sans rappeler sans cesse aux decideurs qu'ils ne peuvent faire fi completement des interets des femmes. A U T R E S O R G A N I S M E S DE I/ETAT

Enfin, il faut mentionner 1'existence d'autres organismes dans 1'appareil etatique quebecois qui travaillent sur des questions touchant les femmes. L'Office des services de garde, cree en 1979, veille a la planification et au developpement des services de garde d'enfants. La Commission des droits de la personne recoit les plaintes de discrimination touchant les femmes, et s'occupe d'equite salariale et de programmes d'acces a 1'egalite. Divers autres organismes consultatifs peuvent aussi jouer un role secondaire mais neanmoins important. Signalons, par exemple, les conseils qui s'occupent des questions relatives a 1'education, aux affaires sociales, aux communautes culturelles et a l'immigration, ainsi qu'a la jeunesse et a la famille. Ces derniers ont produit ces dernieres annees des avis ou des travaux sur les femmes immigrantes parrainees, les sages-femmes, les conges parentaux et les mesures de soutien a la famille. II arrive parfois que le Conseil du statut de la femme se joigne a certains d'entre eux pour des actions concertees - une conference de presse conjointe, comme celle qui a eu lieu en 1989 pour presser le gouvernement d'agir plus rapidement dans le dossier du projet de loi sur les sages-femmes, attendu depuis tres longtemps. La Commission des droits de la personne du Quebec entreprend, quant a elle, une vaste consultation sur 1'equite salariale. Ainsi, le Conseil n'est plus le seul acteur en matiere de condition feminine. Au contraire, le nombre d'intervenants est tel que le Conseil se voit plutot force de defmir avec soin ses creneaux et ses specialites pour eviter la redondance. La multiplicite des structures institutionnelles entraine la specialisation et la professionnalisation des dossiers de la condition feminine, phenomene qui louche aussi les pratiques des groupes de femmes.

237 Le Conseil du statut de la femme du Quebec LES F E M M E S DANS LES POSTES ELECTIFS

Enfin, au niveau politique, la presence croissante des femmes dans les postes electifs contribue egalement a la promotion des preoccupations des femmes. En 1989, les femmes formaient 20% du Conseil des ministres et 18% de la deputation. C'etaient la des nombres encore largement insuffisants mais qui permettaient neanmoins d'elaborer des strategies communes et d'atteindre un consensus efficace sur certains projets de loi, tels le partage du patrimoine des epoux ou celui sur les sages-femmes. Au niveau municipal, et notamment a Montreal et a Quebec, les nouvelles administrations sont formees d'un pourcentage appreciable de femmes, ce qui permet, la aussi, de faire bouger des dossiers qui stagnaient depuis longtemps. LES ECHECS ET LES L I M I T E S DE L ' E T A T Nous devons cependant constater que, malgre la sensibilite accrue des milieux politique et administratif aux question liees a la condition, et malgre la synergic decoulant des actions des femmes tant dans les structures etatiques que dans les instances politiques et dans le mouvement feminin, les resistances sont encore nombreuses. Resultats decevants et actions mitigees

Certains ministeres ou certains secteurs de 1'appareil gouvernemental, notamment ceux qui ont une vocation economique, semblent peu permeables aux demandes des femmes. Ainsi, les reformes reclamees en matiere de fiscalite et de politique familiale se font toujours attendre. Aux deux paliers de gouvernement, les modifications aux lois fiscales repondent a une partie seulement des attentes: elles maintiennent la conjointe au foyer dans un etat de dependance economique et associent toujours sa decision d'emploi a la perte d'un avantage fiscal pour son conjoint. De plus, Faction de 1'Etat en matiere de soutien a la famille a etc poursuivie de facon incoherente et sans objectif clair ces dernieres annees, et la perte de revenu subie lors d'une naissance n'est pas encore adequatement compensee. En ce qui concerne 1'emploi, de facon generate TEtat semble particulierement inapte a relever le statut de travailleuses de seconde zone qui caracterise la plupart des femmes sur le marche du travail. Soussyndicalisation, concentration dans un nombre limite d'emplois souspayes ou mal proteges, remuneration systematiquement inferieure a celles des hommes sont encore le lot de la plupart des femmes. La

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montee du travail precaire et les effets de la technologisation posent de nouveaux defis qui restent entiers11. Enfin, 1'Etat, semble peu capable de trouver des solutions, par le biais de la securite du revenu ou de la fiscalite, a l'appauvrissement de certaines categories de femmes, notamment celles qui sont a la tete d'une famille monoparentale. Voila pour certains des echecs qu'on peut constater. L'ETAT: UN ACTEUR DU C O M P R O M I S L'Etat, on le sait, n'est pas percu et ne percoit pas comme un outil de revolution sociale, et encore moins comme une institution dediee au renversement du patriarcat. Meme 1'Etat-providence ou 1'Etat socialdemocrate reussit difficilement a reduire les inegalites socio-economiques. A tout le moins, on peut le voir comme un organisateur de compromis12, un lieu ou se jouent des rapports de forces entre groupes et ideologies dominantes et qui peuvent eventuellement deboucher sur la negotiation. Dans ce contexte, le Conseil du statut de la femme et les autres centres de decision sur la condition feminine au sein de 1'Etat participent forcement a la fabrication de certains compromis. Ces structures sont des lieux ou se distillent les voix multiples des femmes et ou se condensent des propositions qui doivent a la fois tenir compte des interets des femmes et etre agreees par 1'Etat. II est evident qu'a travers ce processus, les revendications sont traduites en langage etatique ou bureaucratique et qu'elles y perdent en partie leur radicalite ou leur globalite. UNE REMISE EN QUESTION DE L'ETAT-PROVIDENCE? Par ailleurs, ce qu'on a appele la crise de 1'Etat-providence laisse croire que 1'Etat ralentira son developpement, resserrera les criteres d'admissibilite aux programmes existants, fera des economies en coupant dans certains autres. L'Etat, et c'est la une orientation a 1'echelle du monde occidental, semble de moins en moins « percevoir son role sous Tangle de sa responsabilite sociale ou de sa capacite d'attenuer les inegalites. II se revele plus volontiers un agent de concertation ou un appui aux initiatives et a 1'entrepreneurship local 13». Dans ce contexte, il importe d'etre doublement vigilantes afin de conserver les acquis des dernieres annees. De surveiller avec attention, par exemple, le mouvement de desinstitutionnalisation qui renvoie vers le foyer familial les personnes malades, agees ou handicapees sans investir en meme temps dans le soutien aux families, souvent sans se soucier de savoir s'il y a quelqu'un pour les accueillir au foyer, sans

239 Le Conseil du statut de la femme du Quebec prendre en compte les effets majeurs d'une telle politique sur 1'autonomie des femmes. II importe plus que jamais que les femmes s'interrogent sur leur rapport a 1'Etat et sur les actuelles redefinitions de son role qui se font sans elles. UN ETAT D E C O N C E N T R E

Parallelement a cette remise en cause de 1'Etat-providence, 1'Etat experimente diverses formes de partenariat, diversifie ses modes d'intervention et s'inscrit dans une reconnaissance des pouvoirs locaux et regionaux. Deja, de nouvelles structures de planification de concertation ou de decision au palier regional sont en place. Qu'on songe, par exemple, aux sommets socio-economiques ou encore au comites de sante mentale qui seront les lieux de planification des services en region ou encore a la deconcentration previsible dans le cadre de la reforme structurelle des services de sante et des services sociaux. Ce mouvement de partenariat et de deconcentration des pouvoirs de 1'Etat aura des incidences sur les dossiers que portent les femmes. Certaines le voient avec inquietude: depuis vingt ans les decideurs ont etc sensibilises aux besoins des femmes et de nombreux dossiers ont chemine. Qu'adviendra-t-il des mecanismes de collaboration et de consultation qui ont etc mis en place dans le contexte d'un Etat centralise? Comment se traduiront les objectifs nationaux d'equite et de respect des droits des femmes a partir du moment ou certains processus de planification des services ou de prise de decisions seront ramenes au niveau local ou regional? Tout en presentant un risque, cette orientation de decentralisation vise un rapprochement des lieux de decision des citoyennes et des citoyens et une meilleure adaptation des services de 1'Etat aux besoins. Elle peut aussi etre vue comme une nouvelle occasion pour les femmes de prendre part aux orientations et aux definitions des priorites et d'exercer un role encore plus determinant sur les services donnes a la population feminine d'une region. Le meme ordre de questions se pose d'ailleurs a 1'echelle canadienne, ou 1'on assiste a la fin du mouvement de deconcentration vers les provinces. Gette tendance, qu'on observe aussi en Europe, semble etre une composante essentielle du portrait politique contemporain et necessitera un rajustement strategique de la part du mouvement des femmes.

UN ETAT QUI N ' E S T PAS LE S E U L MAITRE D'GEUVRE Enfin, sur plusieurs questions concernant les femmes, 1'Etat n'est pas le seul maitre d'ceuvre. II arrive meme souvent qu'il n'ait aucun controle

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sur la situation, sauf peut-etre la possibilite d'orchestrer quelque campagne d'information ou de sensibilisation. Comment par example, amener les hommes a partager davantage les taches domestiques? Comment amener plus de jeunes filles a choisir des metiers prometteurs dans les domaines des sciences ou des technologies? Comment faire diminuer la violence faite aux femmes ou aux enfants? Meme lorsque 1'Etat peut intervenir par une loi, un programme ou une campagne de sensibilisation, on se heurte encore souvent a une evolution trop lente des mentalites, a des stereotypes difficiles a deraciner, a des valeurs a changer. Les entreprises, par exemple, ont encore a comprendre que la population active est maintenant constituee presqu'a moitie de femmes et qu'elles doivent se reorganiser pour permettre une meilleure conciliation des responsabilites familiales et professionnelles. CONCLUSION

Au terme de cette reflexion sur 1'Etat et les institutions qui se consacrent a la condition feminine, qu'il me soit permis de livrer quelques observations sur 1'experience quebecoise. Malgre 1'action forcement reductrice qu'opere tout Etat par rapport aux revendications des femmes, malgre les limites constatees, nous croyons, dans le cas du Quebec, pouvoir etre optimistes a bon droit. Cela tient a 1'ensemble des lois et des mesures adoptees chez nous depuis deux decennies grace a la vitalite des groupes de femmes et a la pression de ce vaste mouvement qui a marque notre evolution recente. Certes les acquis sont toujours fragiles, certes il faut rester vigilantes et maintenir cette pression salutaire sur les decideurs, continuer a exiger ce que nous n'avons pas pu obtenir encore, redoubler d'intelligence en cette periode de disaffection de 1'Etat. Mais plus que jamais il importera qu'a tous les niveaux, dans toutes les organisations sociales, politiques et economiques, les femmes s'impliquent. Une tradition d'egalite, nourrie par le haut degre de conscientisation de milliers de femmes, a deja pris racine dans notre collectivite. Mais le mouvement des femmes pour une redefinition profonde des rapports sociaux de sexe n'en est, comme partout ailleurs, qu'a sa premiere etape. Les limites de 1'action des femmes au sein des institutions gouvernementales et celles de 1'Etat dans la reponse aux besoins des femmes apparaissent fondamentalement comme le reflet des limites meme du mouvement des femmes dans le long processus de renversement des rapports de domination que nous avons amorce il y a maintenant un siecle.

CHAPTER TWENTY

Disappearing Women: Racial-Minority Women in Human Rights Cases NITYA IYER *

L'auteure examine le dossier des droits de la personne au Canada pour determiner comment la question des femmes appartenant aux minorites raciales a etc traitee. La reponse est indiquee par le litre du chapitre: ces femmes disparaissent. Notre systeme de droit est fonde sur 1'idee que la race et le sexe sont des categories separees et exclusives de discrimination. II faut complexifier notre systeme des droits de la personne pour integrer la realite des personnes, comme les femmes de minorites raciales, qui representent les differences multiples.

I am sitting in the restaurant of my hotel finishing breakfast and reviewing my notes for the talk I have to give in a couple of hours. I am uncomfortable: my chair seems intended to encourage patrons to finish their meals expeditiously; my body is unaccustomed to the time zone and its professional "guest speaker" attire. My coffee cup is empty. I look around the room. Most of the occupied tables are inhabited by men in business suits, reading newspapers or talking business talk to each other. Two tables are occupied by couples: at one, a professional looking woman and man nibble toast as they chat in low morning voices; at the other, an older couple do not speak as they tuck into hearty American-style breakfasts. All of these people are white. They all seem comfortable in their chairs. There are no single women sitting at other tables. The waitresses, also white, are busy refilling the coffee cups of the businessmen. As one or another passes my table, the wind of her passage flutters my notes. Occasionally, a waitress bumps into my table in her haste to pass by, but, because my cup is empty, nothing spills. When they are not serving, the waitresses disappear into hidden recesses at the rear of the restaurant. I cannot attract their attention. Or-

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ders are taken, breakfasts delivered and coffee is brought, proffered, and poured for the other customers. I have become obsessed with my lack of coffee; my talk is forgotten. I lift my empty cup and stare pointedly at a waitress pouring another unrequested refill for the man at the next table. She does not see me. I call out. She does not hear. I have fantasies of leaping up and seizing the pot from her hands, of stalking over to the next table and drinking the refilled cup, of making a scene. Everyone in the restaurant, everyone in the city, has coffee but me. I seethe with frustration. Still nothing happens. I despair. It is late. Even if I could get more coffee, I would not have time to drink it now. I feel small and miserable. Invisible still, I rise from my table, gathering my notes. At the cash register I become visible, briefly, as I pay my bill. I wonder whether I will disappear again before I can hail a cab. Hours later, safe and alone in my room, I still wonder. Was it because I was a woman alone? Because I wasn't white? Because I looked too young? Too short? Was it discrimination? Was it them or was it just me? I still wonder. INTRODUCTION

In 1989, Kim Crenshaw published an essay entitled "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics."2 In it, Crenshaw discusses responses by some U.S. courts to black women who seek to invoke Title vn of the Civil Rights Acfi to allege discrimination in employment. She mentions three cases in particular. In the first of these, De Graffenreid v. General Motors^ the court held that a black woman could not invoke Title vn on behalf of the class of black women employees of General Motors. It said that Title vn permits a plaintiff to claim race discrimination, sex discrimination, or either ground in the alternative, but not both together. In two other cases, u.s. courts held that black women do not have standing to represent either the class "women" or the class "blacks" because of potential conflicts of interest within those classes.5 That is, black women could not represent all women because their interest was not the same as "all" women; nor could they represent "all" blacks. These cases collectively make black women disappear from the employment antidiscrimination landscape. Black women may be indirectly assisted (to the extent that they are seen as "women" or "blacks") z/a white woman or a black man starts a Title vu action,6 but they cannot act to protect themselves, either alone or with others. And while some other courts have disagreed with the rulings in these cases,7 their combined effect, as Crenshaw notes in quoting the following excerpt

243 Racial-Minority Women

from De Graffenreid, is quite deliberately to preclude recognition of black women: "The legislative history surrounding Title vn does not indicate that the goal of the statute was to create a new classification of 'black woman' who would have greater standing than, for example, a black male. The prospect of the creation of new categories of protected minorities, governed only by the mathematical principles of permutation and combination, clearly raises the prospect of opening the hackneyed Pandora's box."8 I was shocked by the revelations in Crenshaw's article and began to wonder whether the same kind of erasure of racial-minority women9 happens in Canada. Since Canada is also permeated by racism and sexism (although racism, in particular, takes different forms here), I considered it likely that our laws do not respond adequately to the distinctive experiences of racism and sexism encountered by racial-minority women. In addressing this issue, however, it is important to distinguish between the subjectively felt experience of racism and sexism, the objective experience of discrimination, and what is a "winnable" discrimination case under current human rights doctrine. That racialminority women have distinctive subjective experiences of racism and sexism because of their race and gender characteristics is taken for granted.10 These forms of oppression are caused by a complex array of economic, psychological, and social factors that operate systemically and structurally as well as within the individual. Human rights law is not - and cannot be - a complete remedy for racism and sexism. It addresses only discrimination, which is generally understood to arise out of observable and relatively discrete acts of individuals.11 My concern in assessing human rights law is to demonstrate that current human rights doctrine does not provide redress for all such objectively discriminatory acts, but only for some of them. Thus, when I refer to the experience of discrimination, I mean what is demonstrably discriminatory, what could be found to be discrimination by a human rights tribunal if current doctrines were reformed, and not the subjective experience of racial and sexual oppression. To determine the adequacy of the response of Canadian human rights law to the discrimination experienced by racial-minority women, I reviewed all human rights decisions in the last ten years where race or sex had been alleged as a ground of discrimination,12 as reported in the Canadian Human Rights Reporter, the most comprehensive reporter available.13 My first conclusion was that it was impossible to answer my question satisfactorily - which is an answer in itself. The lack of appreciation of the existence of racial-minority women as a distinct group is so complete that I frequently could not even discover whether a com-

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plainant was a racial-minority woman. To the extent that I could find such complainants, I could find no consideration in the tribunals' decisions that racial-minority women might be relevantly different from racial-majority women or racial-minority men. Thus, as in the cases Crenshaw discusses, racial-minority women disappear from a body of law one would expect to be most concerned about them. However, unlike the U.S. cases, where the courts at least perceived a conflict of interest between black women and others, recognizing in a negative way their distinctiveness, in the Canadian cases there is little realization that racial-minority women even exist as a group. In the first part of this paper, I will describe in greater detail how racial-minority women are absent from reported decisions on race and sex discrimination. In the second part, I will examine possible explanations for this absence. I suggest that while the reasons for this phenomenon are diverse and complex, one very important reason for the absence of racial-minority women from the cases is the structure of our antidiscrimination law itself. It is our law that makes these women disappear, and our law that must change if we are to realize our collective social commitment to equality.'4 RESEARCH RESULTS

There were two basic findings in my research. First, I found it very hard to assess the system's responsiveness to racial-minority women because I could not find them in the cases. Second, when I did find racial-minority women complainants, the legal description and finding of discrimination distorted the women's experiences, analogizing what had happened to them to what would have happened to raceless women or genderless racial minorities. In so doing, the identity of the complainant as a victim of discrimination on the basis of gender and race together was lost, just as much as it was in the cases where I could not discover whether the complainant was a woman of colour. Why I Could not Find Racial-Minority Women When I began my research, I took out the first of ten heavy volumes of the Canadian Human Rights Reporter and turned to the subject index. I was quickly disillusioned. The index lists race and sex separately there is no heading for race and sex - making it difficult to find cases in which both grounds were argued. (I assumed that racial-minority women would be the group most likely to make a dual claim.) Moreover, not every ground alleged by the complainant in a case was included in the index, so that a case in which both race and sex grounds

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were raised might not be indexed under both headings. There was no index organized by the characteristics of the complainant, which would have quickly identified for me the cases brought by racial-minority women on any ground. In the end, the only way to uncover the identities of racial-minority women making human rights claims was to read the cases themselves. I read 416 cases where race or sex discrimination (or both) was alleged in a ten-year period from 1980 through 1989. Excluding interim rulings, appeals, applications for exemptions from prohibitions, applications for approval of affirmative action programs, or decisions that merely confirmed the terms of settlements, I arrived at a total sample of 299 cases. Even when reading the cases, it was sometimes difficult to discover all the grounds alleged since they were not always listed in the headnote. The reason for the absence of a "race and sex" heading in the subject index quickly became apparent: I could only find three such cases in ten years, and of those, two of the complainants were racial-minority men.15 The only racial-minority woman to allege race and sex discrimination lost on both grounds.16 In the cases of alleged sex discrimination, the racial affiliation of any of the people involved was rarely mentioned and was virtually never discussed. I could sometimes infer racial affiliation from information such as names, biographical information, or off-hand comments, but these were educated guesses at best.1"7 In race discrimination cases, the gender of the parties was obviously ascertainable because of linguistic convention. However, that appeared to be the sole reason that gender was discoverable, since the respective genders of the parties were virtually never commented upon. Again, the reader was left to speculate on the extent to which sex as well as race was a factor in the discriminatory treatment. Moreover, it was not always possible in the race discrimination cases even to specify the race of the complainant.18 There was no clarity or consistency in descriptions of racial affiliation, either in the grounds alleged or in descriptions of the complainant. Frequently, some combination of grounds such as race, colour, ancestry, place of origin, nationality, or ethnic origin was alleged in the complaint. All of these were treated as instances of a single category of "race" discrimination by tribunals, so that any possibility of difference among these various grounds disappeared.19 Descriptions of the complainants varied widely from traditional racial ascriptions such as "black" or "oriental," through national designations such as "Chinese" or "East Indian," to complex and confusing combinations: "black male of East Indian origin from Trinidad."20 Finally, in all the cases I read, there was very little information and virtually no discussion about the gender and race characteristics of the respondent. He or she appeared to be some

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sort of "generic" person whose racial and gender identity, especially in relation to the racial and gender identity of the complainant, was quite irrelevant. The result of such inadequate information was that I got very little sense of racial-minority women complainants as a group, let alone as a group with a distinctive experience of discrimination. They do not allege race discrimination and sex discrimination as separate alternative grounds in their complaints. When they appear in the cases, it is as "women" (undifferentiated from racial-majority women) or as "racial minorities" (undifferentiated from racial-minority men - and in some abstract and homogeneous category of "race"). Having to decide, for the purposes of a human rights claim, whether the discrimination I experience is attributable to my colour or to my gender when both seem inextricably intertwined in me, is likely difficult for many racial-minority women.21 It would be important, in assessing the responsiveness of the human rights system to this group, to determine what factors influence individual racial-minority women to characterize their experiences as race discrimination or as sex discrimination; whether, as a group, they are more likely to prefer one ground to the other; and which ground, if any, yields a greater chance of success.22 But that is precisely the kind of information that cannot be gleaned from the reported cases since the possibility of racial-minority women having distinct experiences of discrimination is so unimagined that racialminority women are only rarely described as such. Racial-Minority Women in the Human Rights System

Although race is not mentioned in sex discrimination cases and sex is not discussed in race discrimination cases, it is not hard to see that stereotypes arising from particular combinations of race and gender are often the source of the discriminatory treatment that gives rise to the complaint. Race and sex were both explicitly alleged as grounds of discrimination in only i percent of the cases. Yet although I could not ascertain the race of the complainant in the majority of cases (62 percent), I was reasonably sure that the source of the discrimination lay in the respondent's having acted upon stereotypes involving race and gender together in 12 percent of all cases, or 31 percent of the cases in which the race and gender characteristics of the complainant were reasonably ascertainable.23 Had the tribunals been alert to evidence of sexual stereotypes in race cases and of racial stereotypes in sex discrimination cases, race/gender stereotypes would likely have been seen at work in even more cases.

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Stereotypes that combine race and gender are common to everyday experience. Race and gender are equally apparent and, together with other visible characteristics, are likely to form part of our initial generalizations about people. It is only when one becomes immersed in the world of law that race and gender are extracted from the whole person and become mutually exclusive categories of discrimination. It is only when engaged in legal thinking that race discrimination and sex discrimination become separate observable things. THE SEX DISCRIMINATION CASES

One very common instance of stereotyping that involves race and sex arises in the context of sexual harassment. This is hardly surprising, since our views of sexuality are both gender- and race-specific. As Elizabeth Spelman has noted, social groups define themselves both by their gender relations and by their racial/cultural characteristics, so it is not likely that a group that perceives itself as superior to another group would regard relations between men and women in the "inferior" group as identical to its own gender relations.24 Generalizations about the sexuality of women, both of those who are members of the group and of those outside, are often part of the culture of the group.25 There is a marked difference in the treatment of white women and black women as sex symbols in mainstream American popular culture. Similarly, Canadians have very different stereotypes of the sexuality of white women compared with Asian women or First Nations women. It follows that there are likely to be differences between situations where a white man sexually harasses a white woman and those where a white man harasses a racial-minority woman, or where the harasser is nonwhite but the complainant is, or, again, where neither party is white and they belong to the same or to different minority groups. Yet sexual harassment doctrine treats all of these situations as if they were the first case - as if a white man had harassed a white woman. When a tribunal does not explicitly discuss the racial and cultural affiliations of the parties, the operating assumption is that they both come from the dominant white cultural group in Canada or, if they do not, that there is no relevant divergence from the dominant group in this instance. For example, in Hong v. The Video Station, a teenage East Asian woman was sexually harassed by an East Indian male employer.26 It is probable that the stereotypical perception of Oriental women as passive and compliant influenced the discriminatory conduct.27 In cases where East Indian or Arabic men harassed white women, the construction of white women in those cultures as sexually "available" or promiscuous was likely influential.28 But tribunals do not generally comment

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on this aspect of the discrimination, even when the influence of racespecific sexual stereotypes is unmistakable. In one case, where a young black woman was sexually harassed by her Middle Eastern employer, the evidence revealed that he had said to her "that's how black people make their living, by doing blow jobs." The Board even noted that the respondent made "a number of references to [the complainant's] colour" during his testimony.29 Yet there was no serious consideration of the complainant as a black woman in the decision, and no finding of race discrimination was made. Whether and in what ways sexual harassment is exacerbated or mitigated by varying the racial characteristics of complainant and respondent is a difficult issue. Is sexual harassment within a racial or cultural group more or less serious than intergroup sexual harassment? Should the respondent's (or complainant's) membership in the dominant group affect the assessment of the severity of his30 discriminatory conduct? I am not certain how I would answer these questions. But to fail to even perceive them as important issues in human rights law is to perpetuate a serious inadequacy in the law's ability to describe and proscribe what is the lived experience of sexual harassment discrimination.31 THE RACE D I S C R I M I N A T I O N CASES

The same kinds of interlocking race and sex stereotypes are apparent in cases of race discrimination. Common examples arise in the context of rental situations. In cases involving mixed-race couples, when the evidence establishes that an available apartment became unavailable only when the racial-minority partner appeared, tribunals quickly find that "race discrimination" has occurred.32 It is possible, however, that the landlord or landlady would have been willing to rent to a single racial-minority tenant or to an intraracial-minority couple. That is, the landlord or landlady's refusal may have more to do with discriminatory attitudes about interracial sexual relationships than to the fact that a particular tenant is not white. If so, to neglect the sex-discriminatory aspects of the case and categorize it as race discrimination inaccurately describes the situation. It creates the possibility that if the landlord or landlady can show he or she has rented to single non-white tenants, the complaint will fail. The legal ruling that there was "race discrimination" may miss the discrimination that actually occurred. Another example of discrimination involving race and sex together arises in cases where landladies refuse to rent to racial-minority men. In Wattley v. Quail, the female respondent testified that she wanted the tenant to be "compatible with her as she lived alone and she wanted a

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person with whom she felt comfortable and secure."33 It was the black male complainant who was threatening; a black woman or a white man might well have been successful in renting the accommodation.34 Again, in this kind of situation, difficult questions arise. Is the defendant's race and sex-discriminatory conduct mitigated or exacerbated by her gender? How does this compare to the situation of the sexual harasser whose discriminatory conduct is also founded upon stereotypes of race and gender? These examples show that it is not only racial-minority women whose experience of discrimination is distorted by our simplistic, "only one thing wrong at a time," antidiscrimination doctrine.35 The current categorical approach to the grounds of discrimination leads to depictions of the experience of discrimination that are seriously inadequate in a significant number of cases.36 For racial-minority women, and for others, the legal understanding of what was "wrong" in a particular situation misses what really happened. UNDERSTANDING T H E I N V I S I B I L I T Y OF RACIAL-MINORITY WOMEN

There are two avenues of analysis to pursue in interpreting the results of my research, each of which corresponds to one of the two ways I found racial-minority women to be absent from the cases. First, it is necessary to consider why so few racial-minority women appear to be asserting human rights claims at all.37 Second, in those cases which are reported, why the gender and race specificity of racial-minority women "disappears" requires explanation. Why Racial-Minority Women Might not Make Human Rights Claims

There are at least four reasons that might explain the underrepresentation of racial-minority women complainants in human rights cases. First, these women may simply not be aware that they have the legal right to be protected from discrimination and that there are procedures for remedying violations of that right.38 Second, racial-minority women may be excluded from protection by human rights statutes by virtue of the jobs they tend to do or the places they tend to live.39 For example, in some jurisdictions, domestic workers are exempted from protection against discrimination in employment.40 I could not find a single reported case in the ten-year period between 1980 and 1989 in which a domestic worker alleged race or

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sex discrimination despite the fact that racial and sexual abuse of these women is known to be widespread.41 One explanation for the absence of domestic workers from the human rights picture, and a third reason why racial-minority women in general may not assert human rights claims, is that these women may distrust the legal system. They may feel, with good reason, that the law is not there to help them or that if they make a claim, it will backfire against them. In the case of immigrant women, their most direct experience of the Canadian legal system will likely have been in the immigration process. In the case of all racial-minority women, another likely point of contact with Canadian law, either directly or indirectly, through the experiences of relatives and friends, is the police and the criminal justice system.42 The treatment of racial-minority persons in both of these branches of law is unlikely to leave them with the impression that our legal system also provides a benevolent antidiscrimination law. Moreover, immigrant women may hesitate to assert human rights claims because of fears of jeopardizing their immigration status43 or because of their experience of the legal systems in their country of origin. Fourth, the complaints adjudication process may not respond to the reality of these women's lives. Employment, accommodation, and other services covered by discrimination prohibitions may be so essential to the racial-minority woman, and the discrimination she encounters in those areas may be so pervasive, that bringing an individual complaint may seem pointless. The possibility of a remedy for one, or even a few, individuals in the face of a long-standing systemic environment of discrimination may not be worth the considerable effort required to pursue it. And in such situations, discrimination may actually be much harder to prove. In a workplace where there is a perpetual turnover of workers and the race and sex differences between workers and supervisors are fixed, how can an allegation of race or sex discrimination be established? In the sole reported case I found involving factory workers (a common employment situation for racial-minority women), an overwhelming amount of evidence was introduced during the thirty-six-day hearing of blatant verbal and physical sexual harassment of the complainants and other workers by the respondent foreman, stretching back to 1977 (six years prior to the hearing).44 None of the six complainants was still employed at the factory, and the company fought the complaint at every step, alleging that the complainants had formed a conspiracy against the respondents. At the outset of its lengthy decision, the Board noted that the multicultural nature of the employer's labour force constituted "a second underlying aspect to this hearing."45 All of the complainants were immigrants from Latin America; other

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women who testified about having been sexually harassed by the foreman were Greek and Italian. One witness testified that the respondent supervisor "said that he knew that all of us women from South America liked to have other men, apart from our husband."46 Throughout the decision, there were numerous references to language difficulties exacerbating the problems the women had in seeking to end the sexual harassment. At one point, the Board suggested that the sexual harassment was exacerbated by the complainants' ethnic and linguistic characteristics: "It is clear that Mr DeFilippis tried to intimidate and manipulate the female workers he desired sexually. He was in a position, as he knew, of being able to hire very dependent, immigrant female workers (very much needing work, not speaking English and being relatively inarticulate, and who perhaps appeared from their cultural backgrounds to more likely subject themselves to male authority) who he could seek to take sexual advantage of."4"7 Despite all of this evidence, there was no formal claim and no finding of discrimination on the basis of race, ancestry, place of origin, or ethnic origin48 in addition to the finding of sexual harassment. Nor was there any mention of race or ethnicity as an exacerbating factor in the Board's determination of remedy. Each complainant received general damages ranging from $1,500 to $4,000, plus interest and lost wages, for a total award against the respondent foreman and company of $21,000. It is highly unlikely that a racial-minority woman encountering sexual harassment on the job at another factory would be encouraged by this case to assert her own human rights claim.49 A $21,000 award against an employer is not going to change her work environment; the few thousand dollars she might receive in lost wages and general damages are not going to support her and her family when she loses her job and no other factory will hire her. Although there are provisions in human rights statutes to protect against retaliation, the problems of proof in this employment context, given the high turnover of workers who are almost all racial-minority women, are as great as those in establishing the underlying cause of action. It is likely that all of these factors, as well as others, are responsible for the absence of racial-minority women as human rights complainants. To the extent that racial-minority women are not bringing cases, antidiscrimination law certainly is not working for them. Why Racial-Minority Women Disappear from Their Own Cases

One reason why the race and gender characteristics of racial-minority women who actually assert claims of race or sex discrimination seem to

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disappear is that the cases are presented without considering the whole person of the complainant. Not only the tribunals, but also the staffs of Canadian human rights commissions who investigate and prepare cases for adjudication, treat race discrimination and sex discrimination as separate and simple categories. Consequently, they regard the complainant (and her complaint) as relevant only to the extent that she falls within a particular category. This approach follows inevitably from current legal understandings of discrimination, almost all of which take a "separate grounds" view of discrimination: sex discrimination is something different from race discrimination, which is something different from age discrimination, and so on. There is virtually no consideration of the complex interactions of race, sex, and the various other grounds of discrimination that are so much a part of the lived experience (as opposed to the legal analysis) of discrimination.50 Antidiscrimination doctrine appears almost entirely oblivious to the fact that a complainant alleging race discrimination also has a gender, or that someone alleging sex discrimination also has a race. But the commission's investigators, counsel, and adjudicator(s) all see and hear the parties; they perceive the litigants as "raced" and "sexed" even if they do not choose to explicitly describe them as such. I suspect that these "extralegal" perceptions of the parties do influence the results of cases. While the doctrine does not allow for a consideration of characteristics other than those described by the alleged grounds of discrimination, there are spaces in the application of the doctrine to the case where these "extraneous" considerations may creep in. One such space occurs in the granting of remedies once discrimination is found. In particular, the highly discretionary category of compensation for humiliation and suffering (sometimes called general damages) is one area where the tribunal's perceptions of all the characteristics of the complainant and respondent may come into play. While the number of cases in which general damages were awarded was too small to be statistically meaningful and while other factors may well have determined the amount of damages awarded, some interesting comparisons can be noted. In cases involving denial of rental accommodation, racial-minority men who were discriminated against by white landladies got much lower awards on average (less than half) than did racial-minority women who were refused accommodation.5' In the sexual-harassment cases, racial-minority women tended to get higher awards than did non-minority women, whether or not the harasser was white.52 These findings suggest that tribunals (and other human rights actors) are not completely unaware of the interplay of racial and sexual

253 Racial-Minority Women characteristics of the parties in many race and sex discrimination cases. But if this is so, why is this awareness suppressed in the legal analysis of discrimination that is followed in all of these cases? In my view, the answer to this question lies in the unconscious attitudes and assumptions that inform our legal understanding of discrimination. The idea that race, sex, and the various other prohibited grounds are separate, distinct, and (effectively) mutually exclusive categories of discrimination reflects a particular point of view - one that is not the point of view of racial-minority women. In her essay on American antidiscrimination doctrine, Crenshaw describes this perspective as a "top-down" approach to discrimination.53 I would describe that point of view as the dominant-group perspective or the perspective of privilege. It is a point of view that defines discrimination from the perspective of those who do not tend to experience it - on the face of it, an odd approach. It takes that privileged group as the unstated model upon which antidiscrimination law is based.54 Each category or ground of discrimination - race, sex, and so on - represents possible points of divergence from the unstated norm for each of those characteristics. The ground listed in the statute may be "race," but what it means in practice is "not-white." The categories are separate because they represent a set of possible paths of divergence from the central-group norm. If one is at the centre, one can see divergence in alternative, directions - by race (notwhite), by sex (not-male), or by religion (not-Christian), and so on. In this way, the various grounds of discrimination contain hidden assumptions about who is likely to invoke them. The paradigmatic victim of race discrimination is not some unsexed, ageless individual whose only personal characteristic is "race," but someone who conforms to the dominant norm and is part of the "centre," except for his race. Similarly, the typical victim of sex discrimination is only "different" by virtue of her sex. The model upon which each type of discrimination doctrine is based is someone who diverges from the norm in only one respect - a white (adult, able-bodied, and so on) woman in a sex discrimination case, a racial-minority man in a race discrimination case. These are the people for whom our antidiscrimination laws are designed. The foregoing analysis of the assumptions informing our antidiscrimination law makes sense of why tribunals discuss only race in race discrimination cases and only sex in sex discrimination cases: the doctrine itself assumes that the rest of the complainant's characteristics correspond to the unstated group norm and so could not constitute the basis of the alleged discriminatory conduct. If a complainant is only different in his race (and "normal" in all other respects), then ei-

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ther race was the ground of discrimination or there was no discrimination. This understanding of antidiscrimination law also explains why the law's conception of race is so impoverished that it cannot seem to grasp differences between racial groups.55 From the perspective of the racial norm, all racial minorities look just as different. And in any event, for the purposes of antidiscrimination doctrine, the relevant fact is the racial-minority person's divergence from the norm - that she or he is not white - not any differences between racial minorities. The reason why virtually no attention is paid in the doctrine or in the cases to the characteristics of the respondent also becomes clear. From the perspective of the privileged, no one but another member of the dominant group would have the power to discriminate against another. In the world envisaged by antidiscrimination doctrine, you are either a victim or a member of the dominant group. There are no degrees within each category and no possibility of membership in both.56 The effect of antidiscrimination doctrine is to ensure that only a select group of people are not treated differently than the dominant group. The doctrine expands who gets included in the dominant group by one step. The norm of "white man" (to confine myself to two attributes of members of the dominant group) is broadened to include "white woman" and "racial-minority man." Antidiscrimination law protects people in these categories from being disadvantaged in relation to members of the dominant group because the assumption on which the judgment of discrimination is based - that of a simple, "one-step" divergence from the norm - fits them. For example, if a black man is refused an apartment that is subsequently rented to a white tenant, race discrimination is the obvious explanation. But for people who do not fit the one-step divergence model, making a successful discrimination claim is much harder. If a First Nations woman is denied accommodation that is subsequently rented to a white man, the explanation is no longer obvious. To establish race discrimination, she must show that her race precipitated the refusal - that is, that the landlord would have rented to white men or women and would have turned away a First Nations man. To establish a sex discrimination claim, she would have to persuade the tribunal that the landlord would have rented only to men (regardless of race) and would have turned away a white woman. If the landlord would have rented to First Nations men and to white women, there simply was no discrimination. The law requires the racial-minority woman to establish that she is just like a white woman or just like a racial-minority man because that is what establishing a sex or race discrimination claim means. In order to succeed in her discrimination claim, the racial-minority woman must

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decide whether her experience was more like what a white woman would have encountered (in which case it was sex discrimination) or more like what a racial-minority man would have encountered (race discrimination), even though she is neither a white woman nor a racialminority man and it is very possible that the discrimination occurred precisely because she was not those other people. This is the same kind of formal equality thinking - which requires a person to demonstrate that she or he is the same as someone who is different from him or her in order to make a legal claim - that feminists have so trenchantly criticized in the context of sex equality.57 While women no longer need to show that they are like men in order to win sex discrimination cases, anyone who departs from the norm in more than one respect must show that they are like someone who departs from the norm in only one respect in order to succeed in a claim of discrimination. As a complainant departs from the dominant group norm in an increasing number of directions, it is less and less likely that the conduct complained of will be held to constitute discrimination in law. If the complainant straddles too many categories, she is increasingly likely to lose her balance and fall through the cracks: it is no longer discrimination, it is "just her." There are two aspects to the problem. First, such a complainant must somehow decide which of several characteristics that she experiences as inextricably intertwined in her was the characteristic that precipitated the discrimination. The more ways in which she differs from the norm, the harder this decision will be. Second, she must convince the tribunal that this characteristic caused the discrimination. Again, the more ways in which she differs from the norm, the less likely it is that the tribunal will consider that this one characteristic was the cause of the discrimination. One might argue that such a complainant could solve her difficulties by alleging several grounds of discrimination. But this merely compounds the problem: a claim so framed would require the complainant to show that she was like the paradigmatic member of not one but several separate categories (like a white woman and like a racial-minority man and like a ...). For example, consider the case of Alexander v. British Columbia.58 Isabel Alexander is a First Nations woman who is partially blind and has a motor impairment affecting her gait and speech. She was refused service in a liquor store because the male store manager thought she was drunk. He refused to believe Alexander's explanations of her condition and called the police. Only after talking to Alexander's lawyer was the manager willing to believe that Alexander was disabled. In her complaint to the B.C. Human Rights Council, Alexander alleged discrimination on the basis of race, colour, ancestry, and/or physical disability. In its brief decision, the tribunal characterized the manager's refusal to

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believe Alexander's assertions about her condition until he had spoken to her lawyer as discriminatory and asserted that the cause of the discrimination was her disability.59 The allegations of discrimination on the basis of race, colour, and ancestry were summarily'rejected.60 The case illustrates one possible benefit of alleging multiple grounds of discrimination: you might win on one of them. Alexander was fortunate that she alleged both disability and race grounds, for it was impossible to predict what the tribunal would fasten upon as "the cause" of the discrimination. In fact, race might have appeared to be the more plausible explanation: would a well-dressed white woman with the same disability have been disbelieved as Alexander was? Would a First Nations woman without such a disability be likely to be scrutinized more closely by liquor store staff in Vancouver? How would a First Nations man have been treated? It seems obvious that it was the combination of Alexander's race and her disability that precipitated the discrimination; it was that particular combination that evoked, in the store manager's eyes, the stereotype of the drunken Indian whose explanations were not credible and who ought to be removed by the police.61 The finding that disability alone was the basis of the discrimination equates this case with all others in which disability was the sole operative factor. Alexander's race and sex have disappeared. Further, finding disability to be the exclusive cause of the discrimination precludes the possibility of openly acknowledging the complexities of Alexander's situation in assessing general damages with respect to remedy. If general damages awards are meant to compensate for the pain and humiliation of being subjected to invidious stereotypes, in fixing this award the tribunal must consider whether Alexander's suffering was greater because she was caught at the intersection of multiple discriminatory assumptions. Alexander was comparatively lucky in terms of the outcome of the case. The tribunal did find discrimination on one of the alleged grounds. Sometimes, however, a person who straddles more than one category of discrimination slips between the cracks. In One v. TIW Industries^2 a Chinese-Canadian woman who was the first woman welder employed by the respondent company alleged that she was fired because of her sex. The tribunal was not persuaded that the evidence established sex discrimination, finding it more probable that her employment was terminated because of inadequacies in her work, and dismissed the complaint. There was no discussion of Oue's race or the racial composition of the workplace. It is certainly possible that stereotypes about Chinese women influenced the evaluation of her performance in a macho job. At the very least, these issues should have been raised and discussed in the case.63

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The law as it stands requires racial-minority women to become what they are not. In order to win a discrimination case, they must make themselves into people who diverge from the dominant group norm in only one respect. Thus the Canadian human rights law requires racialminority women to erase themselves from the picture. I think our antidiscrimination law accomplishes in effect exactly what the u.s. court did in De Graffenreid when it found that black women were not a legally recognizable class of person who could experience discrimination. The very structure of our law precludes it from hearing the stories of or recognizing the personhood of racial-minority women. It obscures and distorts the realities of experiences of discrimination for the sake of maintaining a naive and tragically simplistic analytical structure for antidiscrimination law - one that could only have been constructed by those who knew little about the problem they sought to address. The reason our antidiscrimination law takes the shape it does is only in part a lack of awareness of the lived (as opposed to the legal) experience of discrimination. I suspect that it has at least as much to do with the sentiments expressed in De Graffenreid- a fear of endless "combinations and permutations," of creating an overwhelmingly complex set of problems, and of having to answer impossibly hard questions about what we, as a society, really mean by discrimination in all sorts of contexts. It has to do with the reluctance of those in positions of comparative privilege to confront the diversity of "evils" kept in Pandora's box. If they were let out, we might see how deep and complicated and diverse discrimination really is - and how resistant to change. Current antidiscrimination doctrine conveniently avoids many hard questions. By adopting a model of simple, homogeneous categories of discrimination, each ground appears equal to the others. This simple parallelism enables us to consider race discrimination to be just like sex discrimination, which is just like each of the other grounds. The possibility that race, sex, disability, religion, and so on differin the ways that they constitute a person, so that discrimination on certain grounds in certain contexts may be much more violative of human dignity than others, is ignored (although such considerations might influence general damages awards). The effect of stereotypes that cross and combine categories is left unexamined. There may be an unarticulated assumption in some cases that "multiple" discrimination - discrimination on more than one ground - is worse than "ordinary" discrimination, but there is no consideration of situations in which the complainant and respondent belong to the dominant group in some respects and not in others, and it is this combination of relative power and oppression that leads to the discrimination.64 Even relatively simple questions such as, What do we mean by "race" discrimination? and

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Do different racial groups suffer relevantly different kinds of discrimination? are passed over by current doctrine. The most fundamental error in current antidiscrimination doctrine lies in its location of difference in the individual complainant rather than in his or her relationshipwith others.6-5 It treats difference as an intrinsic characteristic of the individual - the discrimination is due to his or her race or sex - rather than as arising out of the relationship between that individual and others. Pinpointing the victim of discrimination as the source of the problem (if it were not for his or her difference, there would be no discrimination) conveniently allows human rights law to maintain an excessively individualistic approach to remedying discrimination, neglecting the systemic and structural causes of discriminatory relationships. The goal of reform, in the current view, is to encourage more individual complainants to bring cases to correct the aberrant conduct of individual respondents whose discriminatory actions are triggered by exposure to these "different" individuals. The possibility that the dominant group and its institutions are as much a cause of discrimination by their determination of who is labelled different and who is not, is ignored. Because it remains hidden, the perspective of the dominant group remains unproblematic. Those who are called different can never cease to be different - and viewing them as different is not seen as part of the problem. The only goal is to protect them from the adverse consequences of "their" difference as much as possible. In this way, the status quo remains unacknowledged and unchallenged. Discrimination ought to be assessed in light of three interrelated considerations - the characteristics of the people involved (race, gender, and so on); their relationship and the conduct arising out of it; and the larger social context within which that relationship is located. Instead, the current approach to discrimination takes for granted a background norm that is a set of traditional attributes and perspectives reflecting the membership of the dominant group. Discrimination arises only when a respondent's conduct is seen to be caused by the complainant's deviation from the background norm, irrespective of the characteristics of the respondent or the nuances of their relationship. Consistent with the fact that current antidiscrimination doctrines locate the source of the discriminatory conduct in the complainant, few white men are successful in alleging race or sex discrimination. In the period under study, I found no case of a white male complainant alleging race discrimination and only thirteen cases where a white man alleged sex discrimination.66 In nine of these, the discrimination occurred because the complainant sought to depart from stereotypical assumptions about the attributes and behaviour of dominant group

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members. For example, complainants were refused jobs as hairdressers in all-female salons, as girls' physical education teachers, as waitpersons (due to employer preferences for women to serve food), and so on.67 There were two cases of sexual harassment of men by male respondents - conduct that also diverges from dominant-group norms.68 The remaining four cases all involved obvious departures from the principle of formal equality, a concept which is very much a part of the background norm.69 In all thirteen cases, the respondent was either another white man or a corporate entity. Thus discrimination may occasionally occur within the dominant group when a dominant-group member departs from behavioural norms for a dominant group member. In all of the nearly three hundred race or sex discrimination cases I read, the problem was conceptualized as the respondent's reaction to a characteristic of the complainant and not as the product of a relationship shaped by a set of hidden norms and perspectives. The alternative approach to antidiscrimination doctrine that I have suggested - one where the perspectives and structures of the dominant group itself are acknowledged as factors in discrimination and are therefore open to revision - is clearly precluded by the current model. The factory workers in the Olarte case cannot challenge the structure of the workplace itself as discriminatory; they cannot be heard to say, for example, that the white upper management of the company discriminated by their very ignorance of what was going on down on the shop floor. By contrast, what Martha Minow has called a "social-relations approach"70 to discrimination would encourage these kinds of arguments and would require us to ask many of the hard questions the law now conveniently avoids: As a method of legal analysis, the social-relations approach demands analysis of difference in terms of the relationships that construct it. The approach solicits challenges from the perspective of those labelled different, and it treats existing institutional arrangements as a conceivable source of the problem of difference rather than as an unproblematic background. Besides identifying avenues for inquiry about difference, the social-relations approach points toward a particular, normative evaluation of legal assignments of difference: attributions of difference should be sustained only if they do not express or confirm the distribution of power in ways that harm the less powerful and benefit the more powerful.71

In the context of antidiscrimination law, moving away from the current model towards a social-relations approach does not require a revolutionary abandonment of all categories of discrimination, repeal of all statutes, and the institution of an entirely new human rights sys-

260 Nitya Iyer

tern. The error in the current approach lies not so much in the use of categories, which may well be intrinsic to the way we think, but in the assumption that the particular categories we are using now are natural, objective, and permanent.72 We can continue to use the categories we have - in this case, the grounds of discrimination - but we should strive to make them flexible, dynamic, and relational. A complaint alleging discrimination on one ground should not immediately focus the attentions of investigator, counsel, and tribunal exclusively on that particular characteristic of the complainant. Instead, it should provide an occasion for considering the whole picture - one that includes not only individual complainant and respondent, and all their attributes, but others (co-workers, tenants, customers), their various relationships, and the environment in which the situation arose. Each ground of discrimination listed in the legislation should serve as a "jumping off point, a springboard that provides an opportunity to construct an intricate picture of the stereotypes and relationships involved. We need to abandon the current approach, where the identification of one ground becomes an excuse to put on blinkers, to slot the case into a prefabricated and narrowly defined category of discrimination with standardized, universal indicia of a successful claim. The goal should be to provide as full and complicated an account of what happened as possible, an account that reflects the different perspectives of those involved, not only that of the dominant group. With a legal description that is sophisticated enough to correspond to the lived experience of discrimination, we can build an antidiscrimination law that truly begins to redress it. By drawing upon a multiplicity of complex situations, tribunals can begin to build up a doctrine that is able to conceptualize race as a complex category and that either distinguishes between race, colour, ancestry, place of origin, and so on or redefines these categories in a meaningful way. Similarly, we may begin to break down the simple parallelism that currently exists among the various grounds (gender, race, disability, age, and so on) and ask both how they differ and how these differences could be acknowledged in antidiscrimination doctrine. By confronting such issues openly in the context of specific cases, we may begin to answer some of the questions I posed earlier, such as whether sexual harassment is worse when it is intraracial or when it is between individuals of different races, and whether what those races are makes a difference. Through this process, we may come to revisit the question of measurement - of what we mean when we say this instance of discrimination is worse than that one, or that Complainant A should receive a greater general damages award than Complainant B. And finally, we might

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come to see discrimination itself in a new way, as a relational and structural problem whose solution calls for institutional change. It is true that such an approach is a call for what might appear to be an intimidating degree of complexity, with a corresponding diminution in our confidence in the correctness of decisions, our shared belief that the tribunal "got it right," and that justice was done. But without complexity and the uncertainty it brings, the justice that we claim is only justice for some. As Patricia Williams writes: That life is complicated is a fact of great analytic importance. Law often seeks to avoid this truth by making up its own breed of narrower, simpler, but hypnotically powerful rhetorical truths. Acknowledging, challenging, playing with these as rhetorical gestures is, it seems to me, necessary for any conception of justice. Such acknowledgment complicates the supposed purity of gender, race, voice, boundary; it allows us to acknowledge the utility of such categorizations for certain purposes and the necessity of their breakdown on other occasions. It complicates definitions in its shift, in its expansion and contraction according to circumstance, in its room for the possibility of creatively mated taxonomies and their wildly unpredictable offspring.73

For racial-minority women and for others who straddle the current categories of difference, complicating our human rights law in the ways I have suggested is not one of several options for reform. It is the only way not to disappear.

CHAPTER

TWENTY-ONE

The Entire Woman: Immigrant and Visible-Minority Women JOANNE ST. LEWIS

Ce chapitre commence en posant des questions sur la construction et deconstruction des categories - les femmes immigrantes et de minorite visible, les femmes et 1'Etat canadien. L'utilisation des ces categories est hautement problematique; elle suggere 1'existence de la « femme » generique et done elle marginalise 1'experience d'un grand nombre de femmes. Le mouvement feministe canadien doit realiser une veritable inclusivite, basee sur une vision mondiale de la realite des femmes.

The root of the problem in developing this paper was the way in which I felt constrained by the language of the title - "Immigrant and Visible Minority Women." What I want to talk about is that process and how it shapes the way immigrant and visible minorities (minority women and men) see themselves within the Canadian state. The tide "Women and the State" brings into question the whole issue of whether there is such a thing as a generic woman - a uniform or identifiable woman who has a set of needs that can be addressed within the context of the state and within the context of this conference. The structural separation of women into panels on First Nations women or immigrant and visible-minority women tends to create a notion of "woman plus." You have a generic woman plus some other identifiable characteristics - be they race, disability, or sexual orientation. This furthers the sense that as racial-minority women we have been "added to." What I would like to suggest is that the idea of some generic woman is a myth. It is a myth that restricts the discourse that we can have about the issues of how the feminist movement can better reflect and transform itself to be all-encompassing. It places many women in the posi-

263 Immigrant and Visible-Minority Women

tion of having to prioritize gender over any other issue facing their community. It places us in the position of having to look at ourselves in a fragmented manner. This fragmentation serves as a barrier to the development of organic solutions that could effectively radicalize the institutions that oppress us. Looking at the report of the Royal Commission on the Status of Women published twenty years ago, the immediate observation that I had was that those issues of principal concern to our communities were not really there. Aside from a discussion of language issues and some mention of domestic workers, there was no discussion or depth in the report that reflected the diversity of the immigrant community at that time. This created the impression that our communities were basically a homogeneous group of people with tremendous integration problems. That is not the case. The word "immigrant" itself is problematic. The term immigrant is basically a reference to citizenship or one's relationship to the Canadian state. Immigrants at the time of the Commission's report would have included people who had immigrated in the 19508, most of whom were professionals from European countries and the United States. Subsequent waves of immigrants came from the Caribbean and elsewhere in the Third World. These people immigrated at the specific invitation and recruitment of the Canadian government. Our discussion today must not be shaped solely within the context of the report. The link between immigrant and visible-minority women is, in some respects, a fair one because there are some congruencies in the experience of "women of colour" and immigrant women. Issues such as labour force participation, racial discrimination, sexual harassment and vulnerability to male violence and patriarchy, and relationships within the family have common threads, regardless of citizenship. There are, however, connections that are not interchangeable; the linkage tends to create an assumption that you can never quite be a Canadian. In my case, it is manifested in the "where are you from" question. The linkage automatically brings that into mind because you have women and you have Canadian women, and then you have these immigrant and visible-minority women who obviously weren't here to begin with. My accent is not readily discernable, so it is quite disconcerting when people encounter me and ask this question. The dialogue is often as follows: "I'm from Montreal." "Oh well, but where are you from?" "The Jewish General Hospital on May 5, 1959." On the one hand, it becomes quite ridiculous. On the other, it is very frustrating for me and embarrassing for the questioner. When we speak of the state, and particularly when we talk about it in a dynamic such as this, it becomes very easy to see government. The

264 Joanne St. Lewis

government we envision is male-dominated, which leads to the issues of patriarchy and hierarchy. The state is also its bureaucracy with largely white policy-makers. From my vantage point, its race is equally critical since both genders are parties to my oppression. We must start to discuss the "gender neutrality" of power when viewed from a raceconscious perspective. The Canadian feminist movement has predicated itself on inclusion of all women, which is a very positive beginning. However, the rhetoric of inclusion must be separated from the reality of what this means for each and every one of us (women of colour) as individuals. The terms of inclusion must be defined by women of colour with a realization that non-racial-minoriry women must cede power and a voice to us. Racial-minority women are unwilling to wholly embrace a movement that remains racist and forces fragmentation of their identity. The resolution will require a movement that goes beyond listening to experiences. The theoretical constructs on which the feminist movement is built must be thoroughly examined. The Canadian feminist movement is not only primarily white and middle-class, which is something that is often discussed, it is also focused upon and preoccupied with the priorities of North America. Immigrant and visible-minority women are seen as a minority in the North American context. We are not a minority when the entire globe is the frame of reference. We are the majority. A series of questions then arises. If we are the majority, where are we? We are in the "Third World." What is our level of economic empowerment? The majority of women are poor. Millions and millions of women are poor. What are our priority issues? What might be prioritized is protection of life, food, shelter, elimination of global nuclearization, economic democracy, and the control of land and resources. Aboriginal women, and therefore Aboriginal peoples, also speak in similar terms. One of the things that is an issue for us is the fact that we are in North America. We are part of the group that oppresses millions of other women. We oppress a majority of women by the dynamic of our political structures, the culture and the economy in which we live. Our conception of feminism in Canada does not give sufficient attention to the role and evolution of these structures within Canada and their impact on other nations. The subject of women and the economy, which was identified in the original report, must be expanded to address this issue. Canadian feminism places a heavy emphasis on facilitating women as participants in a particular capitalist environment, within a specific racist breakdown of land ownership and resources. It is predicated on sharing that wealth in a system that is actually disproportionately dominant as a consumer of the world's resources. It is the same

265 Immigrant and Visible-Minority Women

conceptual inconsistency when you look at the women's movement and the issue of abortion. Part of the shift in the abortion debate towards reproductive technology resulted from racial-minority women refusing to restrict the discussion to "pro-choice" and the idea of freedom and control of your body. Sterilization, abortion, birth control, medication, and other medical technologies are based upon the violation and abuse of Third World women. They are the laboratory for the different procedures and medical products that we purchase or that we dump when they are substandard. When we are making our choices and supporting certain avenues, we must consider what will be the impact on others. The most direct link or touchstone is the expertise of immigrant and visible-minority women. We do not live in a wholly North American context. I am a first-generation Canadian whose parents immigrated from Trinidad. Beyond that, I am a part of the unbroken chain of African peoples who were stolen (a polite way of saying it) from their homeland. Peoples whose rights were completely violated by Europeans to serve the rapacious needs of people in the Americas to exploit this and other territories. When we speak of immigration for my community, peoples of African descent, we are basically referring to the movement of black peoples who were already displaced and resident in the Western hemisphere. There are patterns within patterns that we must examine. The final point that I would like to raise briefly is the issue of education. Education was raised in the original report in the content of language skills development. Language skills acquisition is not the entire picture, particularly when it stops at basic language training. People need more than basic English or basic French or even the capacity to conduct social conversations with other people. Language training is more than a matter of integration and assimilation to ensure majority society comfort. We must develop a dynamic and continuous educational mechanism for women. Many women who immigrate are skilled, educated professionals. What they lack is knowledge of how to translate the terminology (i.e., medical, scientific, or legal) that they have learnt into English or French. These women are working in a factory or cleaning Canadian homes because they cannot speak one of the official languages with sufficiency. This is a complete underutilization of the potential of these women. Language training within the contexts that we have conceived of it does not even begin to address that level of need. It does not begin to address systematic racism. Full participation in Canadian society is contingent upon exercising those rights. You cannot exercise rights if you do not have a full grasp of the language in which they are enshrined. The everyday language is substituted for literacy in the language of the social, political, legal, and

266 Joanne St. Lewis economic environment in which we operate. Access to the corridors of power and its structures will be impossible for those individuals. What we are seeking is the development of structures that would result in a sharing of power. This would move people out of the expanding underclass to share resources so that racial-minority people could utilize formal and informal power networks, hold office, critique governments, develop government policy, and write briefs without reliance on translators. A somewhat simplistic example would be our capacity to ask, What can I do? We do have to change our vantage point in a very dramatic way if we are looking for solutions. We already speak of racism. The vantage point that we presently use has to be examined from the position of dominance, of power, and of who controls resources. There must also be a willingness, once that examination is complete, for majority women to abdicate and perhaps cede priority to someone else. For example, we have prioritized daycare, universal daycare, and the need for more daycare positions. Who needs daycare more - middle-class women, upper-middle-class women, or women who are poor? Who needs it more? If we've accepted the reality of limited space, who do we prioritize? Do we prioritize ourselves or do we actually accept that we must wait, that we are Phase Two because we have more advantage? The other aspect of the solution is a willingness to recognize what we can control. We have discussed the issue of language study, being in certain positions, but who employs domestic workers? Patriarchy is not the issue within this context. The person primarily responsible for the daily existence of the domestic woman is a woman. In all fairness, we must note that it is overwhelmingly white women who employ these women. The vast majority of domestic women workers immigrate from other countries where they are in the majority. The contribution of these women to our economy and lifestyles is not valued. It is the ultimate irony when a white woman is at a feminist organization, where she expresses her concerns about people from other communities while feeling quite free to keep a woman waiting in the house without prior notice. The domestic woman's time has no value. She can work unpaid overtime. She can reside in a province where there is no employment standards legislation treating her exactly the same as others. She is not encouraged to organize, and we do not provide information and maintain a network for these women about their rights. How I use my power, how I speak for other black women, how my colleagues may speak for me - those are things within my control, our control, this room's control. That's what I would suggest as part of what we could do to work towards a solution.

267 Immigrant and Visible-Minority Women

I think one of the issues is education because we must develop a time frame for institutional change. Let us assume that employment equity is fully established proportional to population. We are still a minority and therefore unable to drive the engines of policy making in Canadian society. How are we going to deal with developing an accurate, encompassing history and politics for all Canadians? This is the only way to finally have a generation of majority people in a position to actively listen to and understand our voices. Unfortunately, feminists in Canada are trying to find a way to listen to other voices without an adequate structure for doing so. While this process is dependent on our individual and collective will to do so, we have not yet transformed the way in which we educate ourselves about racism. My work at the Faculty of Law at the University of Ottawa involves looking at underrepresentation in the law school. We intend to address the fundamental question of who becomes a lawyer, who then becomes the judge. But that is only part of it. There is the whole issue of how we train lawyers. What is legal education? One concrete example is property law. Is it about real transactions or is it about people as property (slavery), women as chattel, the fetus as property, the theft and violation of Aboriginal land. We must question the relevance of arcane rules that deal with the consolidation of power in a world with millions of homeless and poor people. This is central for me. We must deal with education, since it is key to structuring who we are and establishes the framework for future analysis. Transforming adult frames of reference is exceedingly difficult. Everyday I struggle, within the contexts of my work and my life, to root out something that I have learned that I didn't want - the legacy of our racist education system.

CHAPITRE VINGT-DEUX

Lesfemmes et VEtat questions de saute reproductive MARIA DE KONINCK

Maria De Koninck considers the relationship between state action and women's health in the context of reproductive autonomy. She notes that the most important improvement for women's health has been the reduction in maternal morbidity and mortality, but that this positive benefit for women has been accompanied by an increasing medicalization of reproductive health care. The consequence of medicalization is the internalization by women of a negative image of the body and of their own reproductive capacity. The author argues that existing forms of contraception give precedence to efficiency, a value traditionally contrasted to the absence of order, a trait associated with women. She concludes that women's knowledge of their own reproductive processes must be central to reproductive policy.

Tracer le bilan des interventions etatiques concernant les besoins des femmes dans quelque domaine que ce soit, tel que le propose ce livre, releve d'une grande ambition. En sante, atteindre un tel objectif est d'autant plus ambitieux que cela necessite un tour d'horizon general de la situation puisqu'il faut considerer 1'ensemble des politiques economiques et sociales. En effet, on reconnait aujourd'hui que 1'analyse des determinants de 1'etat de sante ne doit pas etre limitee aux politiques et services dans ce domaine. Ces determinants sont effectivement plutot de 1'ordre des conditions socio-economiques. Ainsi, le sociologue Marc Renaud soulignait qu'en analysant 1'evolution de 1'etat de sante des populations, on constate que le facteur le plus important pour ameliorer 1'etat de sante est 1'education des femmes1. Ce qu'il faut noter ici, c'est qu'en faisant le point sur les questions de sante en regard

269 Questions de sante reproductive

des interventions etatiques, on doit garder a 1'esprit 1'ensemble des choix qui ont une incidence sur les conditions de vie, les politiques de sante proprement dites ne representant pour leur part qu'un des volets de la question. L'analyse doit done permettre 1'integration de dimensions qui ne sont peut-etre pas les plus evidentes pour trailer des relations entre 1'etat et la situation des femmes en matiere de sante2. L ' A M E L I O R A T I O N DE LA SANTE ET LA M E D I C A L I S A T I O N

De facon generale, la situation des femmes au regard de leur sante au Quebec comme au Canada a connu des progres qui se traduisent notamment dans une nette augmentation de 1'esperance de vie; celle-ci est principalement attribuable a une diminution marquee du taux de mortalite maternelle. Des informations complementaires complexifient toutefois quelque peu ce constat global. Ainsi en est-il de celles qu'a publiees 1'anthropologue Louise Guyon a partir d'une exploitation des donnees de 1'enquete Sante-Quebec (Guyon, 1990). Selon ces donnees, les femmes se demarquent par la frequence des problemes de sante mentale et leur situation est loin d'etre uniforme, des differences significatives existant entre les categories de femmes. J'ajouterais, et cela nous amene a des questions plus specifiques, que les gains observables s'accompagnent d'une medicalisation importante de la vie des femmes. Le processus de medicalisation ne refere pas a 1'acquisition par les femmes de moyens favorisant 1'amelioration de leur sante mais d'un processus de redefinition des besoins reposant sur une lecture negative du corps feminin. C'est done dire que les interventions visent moins a soutenir le potentiel du corps feminin qu'a en «corriger» les tares. Les pratiques qui decoulent de ce processus consacrent cette perception negative. La medicalisation ne refere done pas seulement a la medecine et aux soins medicaux mais egalement a une prise en charge institutionnelle des questions de sante sous la forme d'une pathologisation de certaines specificites et des experiences des femmes. Ce processus a son ancrage dans la sante reproductive, lieu de la difference biologique entre les hommes et les femmes. Le processus de medicalisation de la sante reproductive est une question centrale pour les femmes, non seulement au plan de leur experience mais aussi au plan plus large de la specificite de leur condition. L'importance des debats sur la place de la biologic dans les rapports de sexe est significative a cet egard. Les luttes nombreuses et interminables pour la reconnaissance de droits reproductifs temoi-

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gnent aussi de la centralite de cette question et suggerent la pertinence de clarifier plusieurs dimensions de la problematique. II y a dans le domaine de la sante reproductive des decisions de caractere legislatif - comme celles qui entourent la question de 1'avortement -, mais le rapport des femmes a 1'Etat se traduit aussi par un tres grand nombre d'interventions moins circonscrites, que ce soit dans le cadre des politiques sociales au sens large ou mieux encore - ce qui est moins visible - dans des decisions de financement direct et indirect, entre autres, au plan des recherches. Une analyse des rapports des femmes avec 1'Etat dans le domaine de la sante et, plus specifiquement, de la sante reproductive m'amene au constat suivant: les femmes ont articule des revendications, elles ont propose des analyses, formule des demandes, developpe des projets - et tout ceci dans un contexte ou leur situation evoluait. Elles ont par ailleurs mis au point des strategies pour resister ou se donner des moyens pour ameliorer leur condition. Mais cela s'est deroule et continue de se derouler dans le cadre de rapports sociaux de sexe marques au sceau de 1'inegalite. De sorte que les pretendues reponses a leurs revendications, les interpretations de leurs analyses, le developpement de leurs projets et les reactions a leurs strategies ne se font pas necessairement dans le sens qu'elles souhaitent leur donner. Selon moi, on se doit de constater que 1'evolution de la situation comporte i) la presence de ce que Ton appelle en sociologie des effets pervers, c'est-a-dire des effets non recherches lors de changements par ailleurs souhaites et 2) une consolidation sous certains aspects du controle exerce sur les femmes par le biais d'une institutionnalisation de leurs besoins. On assiste non pas a une progression de 1'autonomie des femmes mais plutot a une construction sociale a meme leurs revendications, construction qui sert des interets economiques et politiques eloignes de ceux des femmes prises comme groupe social. Aussi bien ces effets pervers que le controle exerce sur les femmes peuvent etre abordes sous Tangle de leur recherche pour une plus grande possibilite de choix. Certains progres sociaux, tels que 1'amelioration de la scolarisation des femmes et de leur presence sur le marche du travail, pourraient permettre de croire que Ton remet en cause la dichotomic femme-nature/homme-culture. Or, on assiste plutot a un deplacement de cette definition seculaire des rapports de sexe. En effet, 1'aspect le plus insidieux de 1'evolution dans le domaine de la sante reproductive est qu'on associe encore et toujours le potentiel reproducteur des femmes a la nature. S'ajoute maintenant a ce precede d'association la conviction qu'il faut controler cette nature pour qu'elles puissent exercer un role social considere comme significatif.

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Questions de sante reproductive

LE POTENTIEL BIOLOGIQUE

Une des revendications les plus anciennes - mais qui est toujours d'actualite - en matiere de reproduction concerne la possibilite de faire des choix, c'est-a-dire de choisir d'etre mere ou non. Faire des choix refere au potentiel biologique mais egalement aux possibilites sociales de concretiser ses options. Au plan du potentiel biologique, les revendications des femmes visaient et continuent d'avoir pour objectif, le respect de leurs decisions et le developpement de moyens et de services facilitant 1'exercice du choix sans effets nocifs pour leur sante. Notons que, depuis toujours, les femmes ont les moyens d'agir sur leur fecondite et qu'elles ont traditionnellement manifeste des solidarites autour de cette experience. Or, les developpements techniques et les pratiques mises de 1'avant rompent avec ce savoir et avec ces pratiques. Lorsque les contraceptifs oraux sont apparus, on a pense un moment qu'il s'agissait la d'une solution interessante; a certains titres, ils le sont, notamment si on peut situer leur usage parmi un ensemble d'autres possibilites, ce qui par centre, ne correspond pas necessairement a la realite actuelle. Si, au Quebec, la pilule continue d'etre le premier choix des jeunes femmes, la methode contraceptive la plus utilisee est la sterilisation (Rochon, 1989). Cette « methode » est egalement privilegiee ailleurs au Canada, selon 1'enquete de 1984 (Balakrisnan, Krotki et Lapierre-Adamcyk, 1985). Deux questions decoulent de ce constat. Dans une perspective de sante et en partant du point de vue des femmes, peut-on considerer que les developpements actuels en matiere de contraception correspondent a leurs besoins? Comment peut-on interpreter les pratiques actuelles, ou 1'eventail des choix est limite et ou les methodes radicales sont privilegiees? II y a selon moi, derriere ces options considerees globalement une lecture negative du potentiel biologique de reproduction. II y a aussi dans le fait que la methode dominante soit une intervention definitive et pratiquement irreversible, un glissement des revendications pour la possibilite de faire des choix vers la diffusion de moyens caracterises par la disponibilite totale a des rapports sexuels potentiellement reproducteurs. C'est done une forme particuliere de controle de la fecondite qui est privilegiee. Les revendications mises de 1'avant par les femmes etaient articulees a partir de cette notion de controle de la fecondite; mais la priorite accordee a des methodes dures et souvent definitives s'inscrit dans un contexte ou les choix sont limites et correspond a une forme specifique de controle. Le discours justificateur de cette forme de controle

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trouve des assises dans une perception du potentiel reproducteur considere cornme un handicap a maitriser. L'excellent tour d'horizon d'Anne Rochon-Ford dans son article intitule « Hormones: Getting out of hand » (1986) illustre bien la perception du corps feminin comme defectueux ainsi que 1'engrenage des differents traitements hormonaux pour pallier a ces faiblesses. J'ai moi-meme insiste ailleurs (1990) sur le rapport moderne des femmes a leur corps, rapport impregne du recours aux hormones. Considere sous Tangle des interventions etatiques, on constate que les choix politiques favorisent des recherches qui sous-tendent le developpement d'un type de moyens plutot qu'un autre. Ces choix institutionnalisent les gestes poses en regard du potentiel reproducteur. Or, ils tendent vers le developpement d'une expertise qui accentue la dependance des femmes plutot qu'ils ne leur donnent la possibilite de disposer de moyens facilitant 1'exercice de choix. On ne met pas la priorite, done pas d'argent, sur le developpement de methodes favorisant 1'autonomie; cet objectif d'autonomie pourrait etre atteint par des pratiques n'impliquant pas un recours constant a 1'expertise medicale, respectant la sante et responsabilisant les hommes. Le discours justificateur de 1'orientation donnee aux recherches et au developpement des methodes en matiere de reproduction est construit a partir de la notion d'efficacite, efficacite preferee a 1'autonomie. Efficacite pour qui? Quels sont les postulats de cette efficacite, qui est mise en opposition avec 1'absence d'ordre, absence naturelle associee aux femmes? Cette situation est porteuse d'effets pervers. Le fait que ces moyens dominent la scene peut avoir des consequences negatives pour les femmes. Combien de fois n'a-t-on pas entendu, pendant les evenements entourant la bataille juridique menee par Chantal Daigle pour faire reconnaitre son droit aux services d'avortement, des propos lui reprochant de ne pas avoir utilise la pilule? Selon cette logique, la disponibilite de moyens radicaux en imposerait 1'utilisation. Ceci pose un probleme particulier pour les jeunes femmes. Alors qu'on semble s'attendre a ce qu'elles se «contraceptent efficacement», la controverse sur les effets a long terme des contraceptifs oraux se poursuit. On s'interroge maintenant sur les effets qu'ils peuvent avoir pour la sante de celles qui y ont recours des 1'adolescence (Olsson, Moller, Ranstam, 1989). Les developpements vont dans le sens d'un controle sur le corps et n'oublions pas que ce controle passe par les experts: des leur jeune age les femmes doivent recourir aux experts pour « dompter leur nature » et leurs possibilites de procreer. La perspective de la mise au point d'un vaccin «anti-fertilite» a une lourde charge symbolique a cet effet. Voila une premiere illustration

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de la transformation des revendications des femmes pour une plus grande autonomie reproductive: il y a une interpretation des revendications des femmes et une construction a partir de celles-ci qui ne rejoint pas necessairement 1'orientation selon laquelle ces revendications ont etc formulees. L'aspect le plus lourd de consequences est 1'integration par les femmes d'une vision negative d'elles-memes, de leurs corps et de leur potentiel reproducteur. Les revendications des femmes pour des choix en regard de 1'experience de la maternite se transforment en une necessite de controler un potentiel percu comme un probleme et implique un recours a des experts. La logique qui sous-tend 1'evolution de la situation en matiere d'avortement est coherente avec le developpement des autres pratiques en matiere de reproduction. L'option legislative retenue reflete les caracteres: le recours a des experts et la medicalisation. LES POSSIBILITIES

SOCIALES

Faire des choix en matiere de reproduction ne refere pas exclusivement au potentiel biologique mais aussi aux possibilites sociales d'avoir des enfants. Le constat actuel est que malgre un discours officiel sur la necessite de se reproduire - discours particulierement present au Quebec -, on retrouve des conditions entourant la reproduction qui exercent une contrainte a la non-reproduction. Meme si dans certains milieux de travail, des progres ont etc realises dans le sens d'une reconnaissance de 1'existence de responsabilites parentales, la situation demeure difficile pour de nombreuses femmes. L'organisation du travail reflete toujours une rupture totale entre le monde de la production et celui de la reproduction, penalisant les femmes qui souhaitent avoir des enfants ou qui ont charge d'enfants. Le conge de maternite applique des pertes de revenu et des desavantages dans le cheminement sur le marche du travail. Dans plusieurs milieux, les services de garde demeurent problematiques. Les femmes continuent de porter le poids de la double et de la triple tache (Descarries, Corbeil, 1989). Cette dimension fait notamment ressortir 1'ambiguiite de 1'expression «pro-choix» pour designer le mouvement de reconnaissance du droit aux services d'avortement, la decision de recourir a ces services n'etant pas qu'une question de disponibilite et d'accessibilite de services. Ce qui traduit sans doute le plus eloquemment une option sociale camouflee pour la non-reproduction est 1'adequation entre la maternite et la pauvrete (Dandurand, 1988). L'actualisation de la maternite, s'accompagnant de conditions economiques difficiles, prend place

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dans un contexte ou Ton culpabilise les femmes pour un taux de natalite peu eleve. Bref, on peut resumer ainsi le bilan en regard des revendications pour de meilleurs choix en matiere de reproduction. Au plan du potentiel biologique, les moyens disponibles assurent un controle absolu mais peu de choix; de plus, la loi sur 1'avortement consacre la negation de 1'autonomie des femmes. Au plan des possibilites sociales, le prix a payer pour la maternite n'est toujours pas socialement partage.

L ' E X P E R I E N C E DE LA GROSSESSE ET DE L ' A C C O U C H E M E N T Un ecart important subsiste egalement entre le soutien demande par les femmes pour leurs grossesses et leurs accouchements et les politiques et services soutenus par 1'Etat. L'histoire du developpement de 1'obstetrique est, en termes sociologiques, une histoire d'effets pervers. Alors que les femmes se sont battues et continuent de se battre pour ameliorer les conditions dans lesquelles se vivent la grossesse et 1'accouchement, ces luttes aboutissent principalement a la medicalisation de ces experiences, c'est-a-dire a leur redefinition medicale. J'ai complete recemment une recherche sur la cesarienne, dont la principale conclusion est la normalisation de cette pratique. Mon interpretation est a 1'effet que ce processus s'inscrit dans un processus plus large de technicisation de la reproduction humaine. Cette evolution est rendue possible par la diffusion d'une perception des femmes comme etant des incompetentes en matiere de reproduction humaine et par la negation des differentes dimensions de leur experience. D'une part, on considere de plus en plus que la reproduction laissee aux mains des femmes est peu sure. L'ideologie du risque qui domine en obstetrique, ideologic a laquelle un nombre croissant de femmes adherent, traite la grossesse et 1'accouchement des experiences sur lesquelles un controle de tout instant doit etre exerce (Queniart, 1988). Or, le risque est percu comme venant du corps des femmes, d'ou un controle sur ce corps et une definition de 1'apport des femmes comme 1'element pouvant creer des difficultes et nuire au bon deroulement des evenements. D'autre part, les dimensions psycho-sociales de 1'experience sont de moins en moins percues comme significatives. En effet, ce qui est considere comme legitime dans le cadre d'un evenement est ce qui est reconnu comme faisant partie de la definition de cet evenement. Ce qui n'est pas de cet ordre est exclu du champ et des lors considere accessoire ou comme secondaire. C'est ainsi que la definition medicale de 1'experience de la procreation transforme cette derniere en une expe-

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rience dont les dimensions affectives et sociales sont secondarisees et meme niees. En partant du principe que les fernmes ont un potentiel reproducteur mais qu'elles sont incompetentes pour le «gerer» et en developpant des approches dont 1'effet est d'accentuer chez elles ce sentiment d'incompetence et de favoriser une reconnaissance sociale de cette faiblesse, on ouvre la voie a la prise en charge « scientifique ». C'est ainsi que Ton peut justifier tous les developpements possibles qui vont faire de la reproduction une experience essentiellement technique soumise a un controle exterieur. La legitimation de la pratique des sages-femmes, que les femmes reclament a travers le Canada, traduit selon moi leur resistance a cette tendance deshumanisante. Au Quebec, malgre certains progres, cette bataille « epique » n'est pas encore terminee et actuellement on assiste a des poursuites centre des sages-femmes qui ont pratique leur metier dans la clandestinite. Le postulat d'incompetence des femmes (versus la science des experts) sous-tend 1'ensemble des developpements actuels et ne concerne pas seulement les femmes enceintes ou accouchantes mais 1'ensemble de la collectivite des femmes et de ses savoirs. Ceci prend tout son sens dans 1'analyse de la question des sages-femmes. II s'agit la d'une des illustrations les plus eloquentes de la perception du savoir des femmes en regard du savoir socialement legitime. Ce qui est en cause dans la problematique de la pratique des sagesfemmes au-dela de 1'objectif de 1'humanisation des soins, c'est-a-dire de la possibilite pour les femmes d'accoucher dans des conditions ou elles se sentent respectees, est la reconnaissance d'une expertise dont les femmes seraient les premieres detentrices. De plus en plus, on constate que 1'approche particuliere de certaines questions par les femmes, particularste attribute a leur « nature », correspond a un ensemble de connaissances organisees; il ne s'agit done pas de quelconques intuitions spontanees. Meme si 1'on admet que ces connaissances ont etc developpees dans un contexte de domination, cela ne leur retire pas pour autant leur caractere organise et fonde. Or, s'il y a un lieu ou le travail des femmes et leurs connaissances sont dequalifies, c'est bien dans le domaine de la sante et tres specifiquement dans celui de la grossesse et de 1'accouchement. Tout ceci se tient: incompetence dans la reproduction et dans sa gestion. L'orientation donnee aux services ne va generalement pas dans le sens d'appuyer 1'experience des femmes et leurs connaissances. Au contraire, ces connaissances sont systematiquement discreditees: cours prenatal, developpement des services d'obstetrique, recherche, formation et sanction des intervenants (et intervenantes) vont plutot dans le sens

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d'une construction professionnelle dont le postulat est 1'incompetence des femnies et leur necessaire dependance. A la limite, ne 1'oublions pas, on decide a leur place, allant meme jusqu'a des decisions imposees juridiquement. LA N O T I O N DE C O N T R O L E

Cela m'amene a la notion de controle, qui est au centre de beaucoup de revendications dans le domaine. Cette notion mal interpretee devient un piege. Dans un contexte de rapports de sexe inegaux, le controle souhaite s'est developpe mais de 1'exterieur et sur les femmes. Les femmes souhaitent effectivement et depuis longtemps un meilleur controle des conditions entourant la grossesse et 1'accouchement (Leavitt, 1986), mais celui-ci s'est traduit non pas par un controle exerce par les femmes enceintes et accouchantes mais sur elles: controle de leurs comportements, decisions sur leurs aptitudes a porter adequatement et a mettre au monde des enfants; a 1'accouchement, le controle de la situation se confond avec le controle des femmes: cesariennes forcees, etc. (Irwin, Jordan, 1989; Milliken, 1990). Du cote des femmes, une assise affective favorise leur acceptation: leur conviction qu'elles sont incompetentes. Mais il y a plus. On assiste actuellement a la mise en place du controle absolu sur le processus de la reproduction avec les nouvelles techniques de la reproduction humaine. Nous avons la 1'illustration de 1'orientation sociale en matiere de reproduction: les scientifiques vont controler 1'ensemble et, a la limite, voudront bien evacuer les femmes (encore faudrait-il introduire ici la notion de classes sociales pour complexifier). La science redefinit 1'experience de la reproduction en evacuant la dimension identifiee sous le pretexte de les debarrasser d'un probleme. Une commission royale d'enquete sur les nouvelles techniques de la reproduction a etc mise sur pied par le gouvernement canadien en 1990. Cette initiative peut etre interpretee comme un geste favorable a la recherche de nouvelles orientations. Mais cela est-il compatible avec la poursuite des activites actuelles? Ou en est le fmancement des recherches? Pendant ce temps-la, que se passe-t-il dans les laboratoires? Le scepticisme - et non pas le fatalisme - est de mise quand on peut pretendre qu'une partie des des seraient pipes. Mon hypothese est qu'une perception negative des femmes sert d'ancrage aux developpements actuels, de sorte que le probleme se situe a un niveau d'intervention tres complexe. Si mon hypothese est exacte, il faut agir sur les mentalites. Cela n'est toutefois possible que dans la mesure ou les commissaires accepteraient de relever le defi d'integrer dans leurs

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analyses la dimension des rapports sociaux de sexe dans le developpement des technologies de procreation. L'histoire est eloquente sur 1'ecart qui existe entre 1'experience des femmes et le traitement que Ton fait de leurs recherches et de leurs revendications (Leavitt, 1986; Wertz et Wertz, 1979). L'exemple de 1'evolution de la pratique de la cesarienne illustre bien la construction de cet ecart. La demande actuelle pour la cesarienne est reelle. Des femmes la reclament dans certains cas, avant meme d'etre a 1'hopital pour accoucher. II devient alors facile de se referer a ces cas pour justifier la multiplication des interventions. Tenter de comprendre cette demande est plus complexe. Lorsqu'on la decompose plutot que de 1'interpreter a un premier niveau, on y trouve des dimensions souvent ignorees. Ainsi, plusieurs femmes disent que la chirurgie leur parait etre une solution a leur peur et une reponse a leur conviction qu'elles sont personnellement incompetentes devant la responsabilite de mettre au monde un enfant qui doit etre parfait. Les femmes ont une experience affective intense, cachee, nice, parce qu'elle ne fait pas partie de 1'ordre definissant les evenements. Au plan des problemes rencontres par les femmes diagnostiquees infertiles (encore ici il faudrait elaborer sur ce diagnostic), c'est un peu la meme chose. La demande existe, mais la aussi, il s'agit d'une demande construite qui sert a justifier 1'offre de services. On accule ainsi les femmes diagnostiquees infertiles a la marginalite. On se sert de cette demande pour ensuite justifier de nouveaux developpements. II ne s'agit pas de nier que la situation soit difficile pour certaines femmes, il s'agit justement de contester le fait que ce soit si difficile et de s'interroger sur les veritables beneficiaires de ces developpements. C'est pourquoi des recherches s'imposent pour mettre a jour 1'experience des femmes, leurs strategies et leurs resistances. C'est ainsi que 1'on pourra clarifier 1'interpretation donnee a leurs revendications et c'est ainsi que 1'on sera en mesure de repondre aux discours justifiant des politiques et des programmes dont les resultats a long terme semblent se retourner centre elles. La recherche feministe est essentielle en ce sens. Elle permet une analyse plus fine des revendications et 1'identification des effets pervers, mais surtout la construction a partir des femmes elles-memes d'experiences qui collent a leurs demandes reelles. CONCLUSION

Le savoir des femmes dans le domaine de la reproduction doit etre affirm e et 1'entraide doit demeurer une valeur centrale. Les groupes de femmes et les centres de sante representent sans doute des lieux a pri-

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vilegier pour une revalorisation du savoir des femmes et une reconstitution de 1'expertise mise au rancart par 1'evolution technique. Plusieurs questions doivent retenir notre attention. L'avortement en est une de premiere importance. Une certaine diffusion des services, telle que nous avons pu 1'observer avant la loi, n'etait pas que porteuse de solutions, mais aussi de medicalisation a 1'instar de la tendance generale des developpements en matiere de procreation. De plus, 1'encadrement propose dans la loi vient retirer definitivement toute velleite d'autonomie des femmes en cette matiere. Des problematiques telle celle des sages-femmes exigent de la vigilance afm que la reconnaissance de leur pratique se fasse dans la perspective d'une reconnaissance du savoir des femmes, c'est-a-dire a un niveau plus global que la simple admission de leur droit de pratique dans un cadre institutionnel. Les recherches, comme les services, dans le domaine de la sante vont continuer de se developper selon les valeurs actuellement dominantes si celles-ci ne sont pas remises en cause. La notion de controle sur le processus de la reproduction est sans doute la dimension a remettre en question en priorite pour que les revendications des femmes pour une plus grande autonomie reproductive et une amelioration de la sante se traduisent par des possibilites qui leur permettent de veritables choix.

CHAPITRE VINGT-TROIS X

L'Etat et les groupes de femmes: un partenariat pour le meilleur... ou pour le pire?1 DYANE ADAM

The Bird Report did not consider women's health, rather it considered women in light of their role in the family. In the years following the report, women created alternative locations for women's health needs, resulting in a parallel location for service provision through networks, shelters, and women's health centres, with a broader vision of women's health being based on the right of women to health care in a context of autonomy. The state has failed to place women's health care needs at the centre of health policy. Government structures, such as the regional health councils in Ontario, have failed to respond to women's needs. On those occasions where women are called upon to participate in health care decisions, their voices are minimized by their small numbers and the structure of the committees. At the same time, the process co-opts and exhausts women's groups, duplicating the subordinate role in which women have historically been placed.

La sante dans la vie des femmes est omnipresente, et dans le monde de la sante, les femmes sont omnipresentes. Elles s'y retrouvent d'une part comme sujets d'intervention dans les roles de patientes, de clientes, de beneficiaires et de consommatrices et d'une autre part, comme principales dispensatrices de soins a titre d'infirmieres, de travailleuses sociales, de meres, de gardiennes et d'educatrices. On salt que les femmes sont les principales protectrices de la sante tant au foyer que dans la sphere publique. Pourtant, le role central des femmes en sante commence a peine a etre reconnu de facon formelle dans la societe canadienne. En effet, en 1970, la sante des femmes n'a pas retenu specifiquement 1'attention de la Commission royale d'enquete sur la condition

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de la femme aii Canada. Fidele a 1'image de la societe d'alors, cette Commission n'a fait de place a la sante des femmes que par le biais de la famille. Elle s'est avant tout interessee a la femme en tant que genitrice, mere et gardienne d'enfants. Meme aujourd'hui, la sante des femmes comme foyer principal d'interet, d'etude et de recherche demeure largement « une affaire de femmes ». Depuis les vingt dernieres annees, et meme bien avant, des groupes de femmes a travers le Canada se sont mobilises dans ce dossier. Us ont agi collectivement pour denoncer les differentes formes d'oppression et d'exploitation (inegalite salariale, pauvrete, violence physique et sexuelle, discrimination, chomage, pratiques sexistes des professionnels en sante, etc.) dont les femmes sont la cible ainsi que les consequences qui en decoulent sur leur etat physique et mental. Ces groupes ont voue leurs efforts a eduquer, a former et a creer des refuges, des centres de femmes et des ressources alternatives en sante, donnant ainsi naissance a un reseau d'aide communautaire qui fonctionne parallelement au reseau officiel de sante. Le Regroupement des centres de sante des femmes du Quebec, le Women's Health Education Project (WHEP) de Terre-Neuve, le Toronto Women's Health Collective, le Vancouver Women's Health Collective, les projets Odyssee et Stress au feminin de 1'Union culturelle des Franco-ontariennes, ne sont que quelques exemples des nombreuses initiatives communautaires des femmes canadiennes en sante. Ce mouvement constitue un reseau plus ou moins structure de femmes et d'organismes qui partagent une vision elargie de la sante axee sur 1'autonomie et le droit de regard des femmes sur tous les soins qui leur sont donnes (Clement, 1987). Les lectrices et lecteurs interesses a en connaitre davantage sur les initiatives propres a plusieurs de ces organisations ou groupes de sante pour femmes peuvent consulter deux articles publics au printemps 1987 dans la revue Promotion de la sante1. Quel role a joue 1'Etat canadien face au mouvement des femmes en sante? Compte tenu du silence total de la Commission royale d'enquete sur les soins de sante destines aux femmes, ce sont les groupes de femmes eux-memes qui en ont fait un dossier prioritaire et qui, par le fait meme, ont force les gouvernements a s'impliquer. La recommandation 3 de la Commission etait par ailleurs explicite face a son engagement envers les associations de femmes: «la Commission recommande que les gouvernements federal, provinciaux et territoriaux a) aient davantage recours aux services des associations feminines benevoles; b) augmentent 1'aspect financier accorde (i) aux associations feminines benevoles qui ont entrepris d'assurer des services d'interet public (ii) aux associations benevoles dont le champ d'action interesse tout particulierement les femmes3».

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La Commission preconise une forme de partenariat et d'echanges reciproques de ressources entre 1'Etat et les regroupements de femmes. Toutefois, la contribution particuliere de chacun a ce partenariat ne peut etre passee sous silence. L'Etat se fait pourvoyeur et les femmes benevoles sont les dispensatrices de services - services auxquels 1'Etat se reserve le droit de recourir ou non. Le vecu des femmes en fait foi depuis longtemps: une telle union entre partenaires «inegaux » augure mal. Ceci dit, comment 1'Etat s'est-il acquitte de ses engagements face aux associations et groupes de femmes au cours des vingt dernieres annees? Est-ce-que le bilan est surtout positif, surtout negatif ou ni 1'un ni 1'autre? II semble important que differents groupes de femmes fassent valoir leur reponse a ces questions. Aux fins de cet expose, j'aurais souhaite recueillir les points de vue de groupes de femmes issus des nombreuses provinces et communautes du Canada, mais des contraintes economiques de temps et d'argent ont eu raison de ce projet. Au cours de la derniere decennie, j'ai ceuvre au sein de plusieurs groupes regionaux, provinciaux et nationaux de femmes francophones hors-Quebec. Ce sont les temoignages et les experiences d'une dizaine de ces groupes, recueillis lors d'entrevues semi-structurees, qui ont alimente la presente reflexion sur le role de 1'Etat face aux initiatives des groupes de femmes en sante. Les discours de ces differents groupes face a 1'appareil de 1'Etat se rapprochent tellement les uns des autres qu'il y a lieu de croire que ce qui est propre a la realite franco-ontarienne peut, en toute probabilite, s'etendre a 1'echelle nationale. LA PLACE R E S E R V E S AUX GROUPES COMMUNAUTAIRES EN SANTE

Les services offerts par les regroupements des femmes sont nombreux et varient evidemment d'un groupe a 1'autre. En matiere de sante, on peut classer les activites des groupes en quatre grandes categories: 1 concertation et elaboration continues d'un discours commun adapte aux besoins changeants des femmes (par exemple, rencontres, etudes, recherches, etc.); 2 information et education (par exemple, colloques, publications, oeuvres theatrales, etc.); 3 prestation de services paralleles (par exemple, refuges pour femmes battues, cliniques de contraception, counselling pour victimes d'inceste et d'agression sexuelle, etc.);

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4 action politique et militantisme (par exemple, memoires, petitions, etc.). Les regroupements de femmes disposent d'un savoir et d'une experience uniques en matiere de sante. II appartient aux gouvernements federal et provinciaux de maximiser ces ressources au profit de 1'ensemble de la societe canadienne. Plusieurs rapports d'organismes nationaux et internationaux soulignent la necessite d'obtenir la participation organisee des collectivites et des femmes a la planification, a la mise en ceuvre et a 1'evaluation des programmes officiels de sante4.

L'ETAT A - T - I L su C R E E R LES MECANISMES NECESSAIRES A LA PARTICIPATION DES A S S O C I A TIONS DE FEMMES AUX DECISIONS A TOUS LES N I V E A U X DU S Y S T E M E DE SOINS DE SANTE?

Examinons d'abord le palier regional. En Ontario, la planification regionale des services de sante se fait par le truchement d'un conseil regional de sante et de ses nombreux comites consultatifs, le foyer d'interet de chacun portant habituellement sur une clientele-cible definie par groupe d'age et par niveau d'intervention (par exemple, soins primaires, soins palliatifs, promotion, etc.). Les femmes ne sont pas reconnues comme un groupe-cible prioritaire. Aucune place n'a etc reservee dans cette structure decisionnelle pour traiter des questions qui importent le plus au mouvement des femmes en matiere de sante. Bien sur, les groupes de femmes peuvent toujours sieger sur les comites ou au conseil regional lui-meme, mais la presence d'une representante a un comite de quinze a vingt personnes ne garantit pas pour autant que la voix des femmes sera entendue, comme en temoignent des femmes qui ont vecu cette experience. Les groupes de femmes relatent que le conseil ou des organismes publics leur demandent parfois de nommer une representante qui siegerait sur un quelconque comite consultatif. La personne designee se retrouve habituellement au sein d'un groupe ou les professionnels de sante et les administrateurs dominent nettement. On offre peu de preparation ou d'orientation aux porte-parole de la communaute. Les documents distribues avant les reunions sont si volumineux (environ cinquante a cent pages) que la plus motivee des benevoles peut s'en trouver decouragee, sans parler du langage hautement specialise de ces documents, qui est hors de la portee du profane. De par leur con-

283 L'Etat et les groupes de femmes

ditionnement social, les femmes sont davantage portees a adopter des attitudes de soumission et eprouveront plus de difficulte a s'exprimer et a fonctionner au sein de tels comites ou conseils. En meme temps qu'on leur dit qu'on souhaite les entendre, on met tout en place pour les en empecher. Pourtant, 1'objectif motivant la creation de tous ces comites consultatifs est d'obtenir la participation active et la contribution particuliere des membres de la collectivite qui sont desservis par ces etablissements. On cree, de fait, un systeme voue a 1'echec des le depart. A moins bien sur, que les intentions veri tables soient de creer 1'illusion d'une participation communautaire! Certaines femmes contestent egalement le manque de democratic au sein de ces comites, le choix arbitraire des participantes et participants et, enfin, le pouvoir reel des comites dans la mesure ou toute decision doit etre enterinee par le conseil lui-meme. Au niveau provincial, le ministere de la Sante de 1'Ontario a recemment manifeste un interet pour les centres communautaires de sante des femmes et il a invite quelques regions a soumettre des projets adaptes aux besoins et aux problemes de sante de leurs collectivites respectives. A premiere vue, cette valorisation du communautaire pourrait traduire une volonte de soutenir les initiatives locales ou regionales, de demedicaliser la vie genesique et les problemes sociaux des femmes, de developper des ressources alternatives en sante et surtout, de donner un pouvoir reel aux femmes dans 1'orientation et la mise en ceuvre des services de sante qui leur sont destines. Le processus suivi par 1'Etat pour inciter les regions a soumettre leurs projets en dit long sur ses intentions veritables. Je siege presentement a 1'un de ces comites. Soulignons d'abord qu'il s'agit d'une initiative gouvernementale et que les personnes invitees a participer au comite strategique de planification ont ete choisies, du moins dans notre district, par le conseil regional de sante selon des criteres plus ou moins clairement definis. A ce comite, on y retrouve une mosaique de femmes: francophones, anglophones, autochtones, immigrantes, jeunes, moins jeunes, ainees, professionnelles en sante et non-professionnelles. Nous avons toutes des interets, des besoins et des affinites plus ou moins differents. Et notre mission consiste a definir et a s'entendre sur un modele susceptible de repondre aux besoins de toutes ces femmes en matiere de sante! Ce processus va tout a fait a 1'encontre du mouvement des femmes, ou les besoins surgissent de la base, ou les groupes se font et se defont naturellement au gre de leurs besoins et de leurs preoccupations et non en reponse a des interets exterieurs. Le travail du comite est d'ailleurs largement determine par les priorites et les interets du gouvernement. Alors que les participantes de-

284 Dyane Adam

vraient se concerter sur les facons d'integrer les analyses, les orientations feministes et les pratiques alternatives dans ce nouveau centre de sante, leurs energies sont detournees et canalisees vers des sondages de besoins de la clientele-cible, et ce, paradoxalement, selon des grilles d'analyse privilegiees par les approches traditionnelles et dominantes en sante. Malgre un discours favorable, le role qu'on veut donner aux ressources communautaires, et surtout la marge de manoeuvre qui leur est laissee dans 1'ensemble du systeme, sont ceux que 1'Etat a decide de leur donner. Plusieurs feministes ont deja sonne I'alarme face au danger de recuperation par 1'Etat de la cause des femmes en matiere de sante5. Michelle Bourgon, une professeure feministe en travail social a I'UQAM, s'exprime ainsi sur cette question: Un autre mecanisme couramment utilise est celui de la recuperation. Recuperes par 1'Etat (via les CLSCS entre autres) des groupes de base, groupes de femmes, groupes autonomes, populaires, qui essentiellement critiquent et s'attaquent aux institutions, en fournissant des alternatives. Pour neutraliser les forces de ces groupes, 1'Etat a recherche soil a les reprimer, soil, plus frequemment, a les utiliser en les coincant dans une logique de services avec ou sans subventions, qui epuise 1'energie des groupes. Dans les deux derniers cas, les revendications des groupes se voient transformees, diluees, moulees aux imperatifs de fonctionnement des institutions en place6.

Dans une meme veine, une benevole franco-ontarienne nous parle de 1'experience de son groupe, qui avail comme projet d'etablir un centre de femmes dans leur communaute: II faut « se prostituer » en changeant nos objectifs afin qu'ils soient compatibles avec les agendas des ministeres. Apres de nombreuses rencontres avec les Secretariat d'Etat, Sante et Bien-etre social Canada, Ministere de la sante de 1'Ontario, nous avons reussi a obtenir du financement, mais le resultat final fut que nous ne reconnaissions plus notre projet. Ce qui devait etre au depart un centre de sante pour femmes est devenu un centre de sante pour la famille. On nous a egalement fortement recommande de recruter des personnes «credibles» au C.A., comme un avocat, un comptable, un medecin; ce qui a ete le coup final pour taire et reprimer les besoins des femmes.

Sans une repartition des pouvoirs et des investissements en faveur des ressources communautaires, les politiques de sante publique7, qui pronent actuellement une appropriation de la gestion de la sante par la population elle-meme, seront de beaux principes theoriques mais steriles.

285 L'Etat et les groupes de femmes

L'ETAT POURVOYEUR: UN DILEMME DE TAILLE Que 1'on soil en accord ou non avec cette idee, le fait demeure qu'au cours des dernieres decennies, 1'Etat s'est affuble du role de principal pourvoyeur des groupes de femmes. En consequence, c'est la question financiere qui a domine les echanges entre 1'Etat et les associations de femmes, et qui continue toujours de determiner leur rapport, si Ton peut juger par le tolle general provoque a travers le pays suite a 1'annonce de coupures budgetaires par le ministre Wiener. Meme si les femmes consultees reconnaissent que le fmancement etatique est a bien des egards un ecueil pour leur groupe, elles considerent que 1'acces aux subventions a etc crucial pour la diversification et 1'expansion des services offerts a leurs membres. Avec 1'appui gouvernemental, il a etc possible d'orchestrer des evenements (colloques, forums, conferences) a 1'echelle regionale, provinciale ou nationale qui ont permis aux groupes de femmes de se rencontrer, de « reseauter » entre elles, d'echanger des idees et des programmes d'une region a 1'autre ou d'une province a 1'autre. Mentionnons, a titre d'exemple, les projets Nouveau Depart et Odyssee, qui sont deux programmes d'education concus par et pour des Quebecoises. Ces programmes ont etc recuperes par 1'Union culturelle des Franco-ontariennes et adaptes aux besoins et aux preoccupations des femmes francophones minoritaires de 1'Ontario. II en a etc ainsi pour d'autres provinces. Ces rassemblements finances par 1'Etat ont egalement permis aux femmes de contester et critiquer les modeles et les pratiques courantes dans le reseau official de sante et, surtout, de concevoir des ressources alternatives adaptees a leurs besoins. Les gouvernements sont percus comme supportant les activites de sensibilisation, d'education, de « reseautage » et de recherche des regroupements de femmes - toutes activites de nature ponctuelle et circonscrite. Toutefois, les cordons de la bourse de 1'Etat pourvoyeur se serrent des qu'on parle d'un fmancement permanent pour des interventions et des pratiques alternatives qui remettent en cause 1'ordre economique et social etabli. Tant que la contestation des femmes reste au niveau du discours, 1'Etat appuie les efforts des groupes communautaires. Les groupes de femmes ont vite appris que le partenaire pourvoyeur se reserve le privilege de decider lesquelles de leurs activites sont dignes de financement. Tous les groupes de femmes consultes ont deplore ce lien de dependance qui se maintient, qui est voire meme encourage, entre leurs organismes et 1'Etat. Une planification coherente et a long terme ne peut se faire au sein de leurs associations puisque le financement d'un

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Dyane Adam

projet au cours d'une annee ne garantit nullement son maintien ulterieur et ceci, peu importe les demandes ou les besoins des femrnes pour ce type de programme. Le financement gouvernemental par projet ou par theme a souvent pour effet de les distraire de leurs besoins ou objectifs veritables. L'Etat gere le dossier des femmes a la facon d'une campagne electorate. II doit toujours y avoir un theme nouveau, une nouvelle marotte a vendre aux citoyens et citoyennes pour retenir leur attention et se distinguer a leurs yeux. C'est ainsi que les groupes de femmes ont vu se defiler au cours des derrieres annees une succession de programmes d'education en sante tels que, C'est pas grave, c'est rien que vos nerfs! (usage abusif de medicaments), Odyssee (menopause), Stress au feminin, Interdit (inceste), Pleins feux (personnes vieillissantes et a la retraite). Les groupes de femmes beneficient d'un appui financier pour concevoir ces programmes, mais des qu'ils ont ete finances durant quelques annees, ils se voient prives des fonds necessaires pour les maintenir et les consolider en une intervention a long terme qui aurait veritablement des chances de produire des changements significatifs et permanents au niveau de la condition de vie des femmes. Sans mentionner que les demandes repetees de subventions, les obligations de prelevement de fonds, ainsi que le fonctionnement de 1'organisme a 1'interieur d'un budget annuel fort restreint, ont place de serieux obstacles sur la route pour se doter de services adequats en sante. II faut egalement souligner les contradictions de 1'Etat au niveau des politiques touchant le dossier des femmes. Alors qu'il prone 1'equite en matiere d'emploi et de salaire, le Secretariat d'Etat limite les honoraires des travailleuses communautaires en exigeant que pas plus de 40% des subventions accordees soient consacrees aux salaires. Ce qui est encore plus etonnant, c'est que le Secretariat d'Etat permet a plusieurs groupes communautaires travaillant aux causes du multiculturalisme, des autochtones et des langues officielles de reclamer le financement des frais d'exploitation de facon permanente, alors qu'on n'offre pas cette possibilite aux regroupements des femmes. L'appareil gouvernemental - cette bureaucratisation - constitue une autre limite pour les groupes de femmes. Les femmes mentionnent toutes la difficulte de se faire comprendre dans un langage qui leur soil propre. Elles doivent souvent se familiariser avec les politiques de chaque ministere et developper un jargon qui correspond a ce que les bureaucrates veulent bien entendre. II est rare que 1'inverse se produise et que 1'Etat adopte un langage et des procedures qui soient mieux adaptes aux realites d'une communaute souvent sous-scolarisee et non politisee.

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Plus recemment, 1'appareil de 1'Etat nous livre un tout nouveau discours pronant le partenariat entre les gouvernements, les milieux d'affaires, les municipalites et autres instances dans le soutien financier des diverses causes sociales, y compris la cause des femmes. Afin d'etre subventionnees, les femmes devront desormais prelever des fonds aupres de leur collectivite alors qu'on doit se demander qui, dans la communaute, sera serieusement interesse a subventionner la cause des femmes. Bref, 1'Etat ne traite pas les femmes differemment de ce qu'elles ont toujours ete traitees dans notre societe patriarcale. On leur demande de tout faire sans pouvoir reel et sans moyen, et ensuite on se demande pourquoi leur sante physique et mentale est en peril!

P L U S CA C H A N G E , PLUS C'EST PAREIL! Certaines femmes parlent carrement de manipulation des groupes communautaires par 1'Etat. II arrive souvent que certains fonctionnaires (habituellement des femmes!) les informent que si un groupe leur proposait un projet sur tel ou tel sujet, il serait subventionne. Des projets presentes sous le couvert d'une initiative communautaire sont en fait des projets qui repondent aux priorites politiques de 1'Etat. Les groupes sont detournes de leur mission et sont forces de servir les interets d'autrui avant leurs propres besoins et interets. Ces memes femmes qui ont lutte pour sortir du role qui leur a ete traditionnellement reserve, soit celui de la femme au service exclusif du mari et des enfants, du patron, se retrouvent soudainement dans une position semblable face a 1'Etat. Plusieurs raisons motivent les groupes de femmes a accepter de participer a cette duperie. Plus souvent qu'autrement, ils peuvent ainsi assurer leur propre survie sans rompre le contact avec ceux et celles qui evalueront ulterieurement les projets auxquels les groupes accordent une priorite. Get etat de dependance vis a vis 1'appareil de 1'Etat les rend vulnerables a ce genre de manipulation et de chantage. Ce n'est plus le pere, le mari, le patron qui les tient en otage, c'est maintenant 1'appareil etatique! De meme, les colloques et les conferences subventionnes par 1'Etat deviennent une plate-forme interessante ou le gouvernement peut deleguer ses representantes. Souvent, ces deleguees n'hesitent pas a parler ouvertement et a influencer les opinions et les positions du groupe dans le sens qui convient davantage aux politiques gouvernementales. II est frequemment difficile pour les femmes moins politisees de constater jusqu'a quel point 1'Etat intervient dans leurs

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affaires et elles vont, de par leur conditionnement social, souvent lui dormer raison et se mouler a son bon desir. Par ailleurs, les fernmes qui osent parler sont souvent traitees d'impolies ou de chipies par leurs collegues, ce qui n'est pas sans creer de la dissension et des conflits au sein des groupes. Mais un des aspects les plus vicleux en regard de 1'intervention etatique aupres des groupes de femmes reside avant tout dans son caractere superficiel et restrictif. Une lecture rapide des politiques de subvention adoptees par les differents ministeres du gouvernement federal (Sante et Bien-etre social Canada, Solliciteur general, Secretariat d'Etat) revele que les femmes sont, avec les enfants, les personnes agees, les personnes handicapees et les autochtones, un des groupescibles privilegies pour toutes sortes d'interventions. On croirait que seulement ces groupes sont porteurs de problemes et meritent de faire 1'objet d'interventions speciales. II est certain que les femmes souffrent, qu'elles ont besoin d'etre soulagees et que leur sort doit etre ameliore. L'Etat et les groupes de femmes s'entendent sur ce point. On subventionne, par exemple, toute une gamme de programmes et de services qui visent divers problemes, tels le besoin de mieux vivre sa menopause, le stress inherent aux roles multiples de mere, d'epouse, de menagere, de femme de carriere, 1'etat de pauvrete et le statut quasi nul des femmes vieillissantes, 1'humiliation et la souffrance de la femme battue et violee, la culpabilite ecrasante de la femme incestuee, 1'apathie et la peur des femmes sur medicamentees. En contrepartie, qu'est-ce-que 1'Etat fait pour s'attaquer et enrayer la source veritable de tous ces maux feminins? Au lieu de s'attaquer aux abus du pouvoir masculin, aux hommes batteurs, violeurs, incestueux et insensibles, on agit seulement aupres des femmes. Une permanente dans un regroupement de femmes abonde dans ce sens: On regroupe des femmes, on leur dit de se faire confiance, de s'estimer, de s'accepter comme elles sont; on leur offre des moyens pour mieux gerer leur temps, leur stress, leur anxiete, leur souffrance, etc. On leur dit de ne pas se sentir coupables, et qu'elles ne sont pas responsables mais en meme temps, c'est aupres d'elles qu'on intervient et c'est d'elles, qu'on exige des changements. Tant et aussi longtemps que nos interventions portent exclusivement sur les femmes, on perpetue 1'idee que c'est la femme qui n'est pas correcte, que c'est elle qui doit changer.

A la limite, on peut considerer que les services et programmes offerts par les groupes de femmes ne sont qu'un autre mecanisme utilise par le systeme pour preserver 1'ordre etabli. Les groupes de soutien

289 L'Etat et les groupes de femmes

sont par exemple un lieu privilegie par les femmes pour «ventiler», pour se raconter et se consoler. On leur offre ainsi une soupape emotionnelle qui leur permet de tenir le coup pour continuer dans le meme systeme qui les rend malades. Ces interventions du type « band aid», ou on traite uniquement les symptomes, ne changent en rien les structures d'inegalite sociale et sexuelle responsables de la souffrance et des problemes tant physiques que mentaux des femmes. Pendant que les femmes se regroupent et se liberent temporairement de leurs frustrations et de leur souffrance morale et physique, les hommes, de leur cote, se rencontrent au «bar a gogos», frequentent les lieux de prostitution et de pornographic, abusent d'alcool et se defoulent sur leur femme et leurs enfants. A ce sujet, une femme benevole s'exprime ainsi: «II est temps que 1'Etat disc aux petits gars qu'ils ne sont pas corrects et qu'on travaille davantage a les readapter. » Ceci ne signifie pas que nous devons couper les vivres aux groupes de femmes: ces dernieres ont effectivement besoin de refuges et de soins adaptes a leurs besoins. Mais on se doit d'intervenir simultanement aupres des agents responsables de ces problemes: 1'abus du pouvoir masculin et les structures d'inegalite sociale et economique de notre societe. Le danger qui guette presentement les groupes de femmes et les feministes en sante, c'est de devenir des instruments de 1'Etat pour offrir des services peu couteux, rendus necessaires par les abus du pouvoir masculin et 1'inadequation du reseau public de sante, sans qu'il s'effectue, parallelement, une repartition egalitaire du pouvoir et des ressources entre le reseau communautaire et le reseau public de sante. En guise de conclusion, j'aimerais faire appel a 1'analogie suivante, qui illustre fort bien la situation dans laquelle risquent de se retrouver toutes les femmes impliquees dans le mouvement de femmes en sante. Cette analogic a etc dree d'une communication prononcee par un medecin americain, le docteur Zola, sur la promotion en sante: Comme femme benevole, on agit souvent comme ceci. Je suis assise au bord d'une riviere etj'entends le cri d'une personne qui se noie. Je saute alors dans la riviere, entoure la personne de mes bras et 1'amene au rivage pour lui donner la respiration artificielle. Juste au moment ou elle commence a respirer, j'entends un autre appel au secours. Sans hesiter, je saute de nouveau dans la riviere, la rejoins et 1'amene egalement au rivage pour lui donner la respiration artificielle. Encore une fois, des qu'elle commence a respirer, il y a un autre appel au secours. Je suis de nouveau dans la riviere, ramene la personne au rivage, lui donne la respiration artificielle et encore une fois il y a un appel au secours. Cette sequence se poursuit a repetition. Je suis tellement occupee a sauter dans la riviere, a amener les personnes au rivage pour leur donner les

290 Dyane Adam soins necessaires que je n'ai pas le temps de regarder qui, de fait, les pousse a 1'eau plus haul en amont.

Dans leurs efforts desesperes en vue de developper et d'offrir des services de sante qui repondent vraiment aux besoins des femmes, il est primordial que les groupes de femmes et les feministes ne perdent jamais de vue ce qui nous pousse toutes a 1'eau.

CHAPTER TWENTY-FOUR

Competing Representations: The Politics of Abortion in Canada JANE JENSON

L'enjeu politique de 1'avortement doit etre compris comme une lutte autour de differentes representations. La formulation de la question influence non seulement la definition des acteurs juges legitimes mais egalement les solutions qui peuvent etre envisagees. L'analyse de Jane Jenson commence en demontrant les premieres representations de 1'avortement autour de la medicalisation jusqu'a la situation des annees 80 avec deux groupes, un parlant de la vie, des bebes et des droits et 1'autre des femmes, de la liberte de choix et des droits. L'auteure conclut que le discours sur 1'avortement doit redevenir un discours social portant sur 1'aptitude de la societe a permettre aux femmes de mettre au monde des enfants dans des conditions decentes et equitables.

In many ways it seemed a bolt from the blue. Pro-choice supporters had not anticipated that on 28 January 1988 the Supreme Court would strike down section 251 of the Criminal Code because it infringed section 7 of the Charter of Rights and Freedoms, which guaranteed "security of the person." The Court decided that this Charter-guaranteed security included access to medical care and procedures. Those who had struggled for years for an extension of women's right to choose an abortion and who had defended Dr Morgentaler's clinics lauded the decision but were nevertheless surprised by how far-reaching it was. Little in previous state action on this matter had prepared them for the Court's removal of all restrictions on doctors' performing abortions. Moreover, it quickly became clear that despite the removal of abortion from the Criminal Code, which had been the longest-standing de-

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mand of the women's movement, the Court's insistence that it was up to legislators to take a stand and design an alternative meant that there was no escaping a political conflict pitting pro-choice activists against pro-life forces. The latter viewed the decision as an immense setback to their efforts to restrict, even eliminate, access to abortion, in the name of religious morality and/or competing foetal rights. Yet the Court did nothing to settle the question of foetal rights, and court cases dealing with that issue loomed on the horizon, soon to be joined by a series of claims by men that they had the right to prevent their female companions from seeking an abortion. The Supreme Court's decision thus meant that the fight over reproductive rights would finally take place in the political arena. Moreover, it was not clear that - despite high levels of popular support for their position - the pro-choice forces would prevail.1 Therefore, as we all now know, the decision celebrated in January 1988 was a victory, albeit an ambiguous one. That ambiguity has become even greater in the way that regulation of abortion has been addressed and debated in Parliament and in public discourse in subsequent years. The ambiguity over the politics of abortion was present from the start. Indeed, the Royal Commission on the Status of Women (RCSW) was itself a victim of it when it was caught between a clear recognition of women's right to choose and a more limited position. By refusing to modify section 251 of the Criminal Code and striking it down instead, the Court began to delegitimize the very discourse of medicalization on which it had itself decided the Morgentaler case and all previous ones. Thus the Court's decision, although it reflected its traditional preference for medicalizing the abortion question, opened the way for subsequent public controversy to pit against each other the competing positions of pro-life groups championing the right of the foetus and the pro-choice supporters claiming a woman's right to control her own reproductive life. The definition of abortion as a medical matter had effectively limited the power of both pro-choice and pro-life groups. It circumscribed the pro-choice movement's ability to wrest control over decisions about reproduction from doctors and hospitals, to which section 251 had assigned it, and to recognize women's control over their own bodies. But the medicalized discourse of abortion also prevented the pro-life groups from transforming the issue simply into one of morality and foetal rights. These limits effectively created a stand-off in the abortion debate in the 19805 between pro-choice and pro-life movements.2 As pro-life groups captured control of hospital boards and closed therapeutic abortion committees (TAGS), pro-choice groups saw women's access to

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legal abortion services virtually disappear in many places. As clinics supported by pro-choice groups opened in several provinces, flouting the existing law by performing "illegal" abortions, pro-lifers gained public visibility and even support for their argument that "social stability" depended on severely restricting abortion. Even more powerful has been the pro-life movement's success in representing the issue as one of "rights," pitting the supposedly undefended foetus against the supposedly selfish woman. In this version of the discourse of reproductive rights, women appear with few allies, as individuals pursuing only their own ends. The pro-choice movement rejects, of course, such a narrow and unreal representation of the situation real women and families face. The point that I will make, then, is that the pro-choice movement must seek a symbiotic relationship, forged in a stable alliance with the growing number of groups which support abortion rights, if they mean true reproductive rights rather than simply the individual's right to choose. In other words, the right to choose must be re-embedded in a discourse of the social, of the needs of women not only to choose abortion but also to bear children and raise them in a dignified and equitable way. In this way, abortion rights are linked to child care and economic policy, to immigration and training policy, to a broad vision of society and its interdependencies. This is less a discourse of individual rights and more a claim for social goals and protection of individuals within collectivities. Such ways of considering abortion have never dominated the debate in Canada, although they have never been completely absent either. Early in the controversy, the social-democratic left tried to make these points, and in recent years some pro-choice groups have worked hard to popularize the notion of "reproductive rights." It seems to me that this is the only viable politics in the situation we now face. An assertion of the "right to choose" is too simple: that choice must be located in its full social context. If such a social form of pro-choice politics were to become hegemonic, this would mean both retrieving and moving away from some of the ways in which the Royal Commission on the Status of Women considered not only abortion but also women's place in Canadian society. Therefore, the place to start is with the situation the Commission faced and its impact on the discussion of abortion in Canada. REPRESENTATION AND ABORTION

One way to think about politics - a way that highlights the centrality of meanings as well as practices for political outcomes - is to focus on the processes by which new actors come onto the scene and develop suffi-

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cient resources to force their interpretation of their own interests and those of others onto the political agenda. This notion of politics involves a two-part definition of representation. It is not simply the representation of issues, and one's interest in such issues, to society and the state through social movements or parties. It also involves actors' representations of themselves as a collectivity to others. Indeed, the second precedes the first conceptually, if not in real time. An actor without a collective identity cannot speak of its own interests because that actor does not yet exist, either in its own eyes or those of its protagonists.3 This understanding of representation clearly implies that a power relationship is at the root of all political discourse. All actors do not exercise the same power over the meaning systems that organize political debate and the institutions within which this takes place. So, while contestation may exist, as in any contest there are winners and losers. Some collectivities manage to make their voices heard loudly within the universe of political discourse while others are silenced, speaking among themselves in a language that only they can understand. This play of sound and silence, of the power to represent, provides a crucial focus of this paper because it shows that the dominant representations of the abortion issue up until the mid-igSos were promoted by actors other than pro-choice activists concerned about women's need for access to legal and safe abortions or other than the pro-life movement demanding recognition of foetal rights. The reform of the Criminal Code in 1969 was understood primarily within a discourse of medicalization, and that particular representation of the issue dominated further state intervention in the matter until 1988. Throughout these years, dominant actors represented abortion as a medical practice - one that was within the realm of doctors' control because it involved issues of health. Most simply, if doctors saw any pregnancy as "unhealthy," they could legally abort it. A second facet of the representation of abortion, which had been initially important but then almost disappeared, was a discourse of liberalization, employed by some actors to discuss sexuality. Section 251 was written in 1969 as part of an omnibus reform of the Criminal Code. That bill brought a number of important revisions in the state's monitoring of individuals' sexual, reproductive, and family activities. Divorce, birth control, and abortion became more accessible, at the same time as homosexual relations between consenting adults were decriminalized. In 1969 a single meaning system articulated all these realms. This discourse of liberalization would have the state withdraw from areas of moral controversy rather than "impose" any particular values. The reformers' intent was to save the state from the threat to its legiti-

295 The Politics of Abortion in Canada

macy presented by unenforceable laws, such as those on contraception and abortion, as the public became more sexually broad-minded in the ig6os. In the case of abortion, however, the considerations of liberalization were coupled with a discourse of medicalization, which focused on the practical needs of doctors. Thus the state continued to regulate abortion primarily by controlling the behaviour of doctors. The 1969 reform of the Criminal Code clarified some ambiguities of wording and specified the procedures that doctors must follow. After 1969 a woman might request an abortion but it was the doctor who decided whether to terminate her pregnancy. Doctors could perform abortions only in approved or accredited hospitals, after a therapeutic abortion committee established for that purpose had given its approval.4 The only condition that TAGS could consider was a threat to the woman's life or health following from the continuation of the pregnancy. This reform did not fundamentally alter the existing meaning of abortion for doctors. For years, some doctors had been performing abortions when they considered women's health threatened, and the 1969 reform merely cleared up the gray area of such practices. Abortion remained out of women's control because it was still a medical practice in the hands of doctors. The state considered that it had merely clarified the conditions of a medical practice, albeit one which was not quite like all others since the Criminal Code regulated it. Women's voices were diffused and weakened during the development of the discursive compromise that established the institutions within which the practice of abortion politics occurred over the next two decades. The second wave of feminism had not yet made itself felt in Canadian society; women had not yet developed the powerful collective identity with which they could name themselves as women and organize around a gender-based solidarity. Also weak were the voices of those who would have paid more attention to the social need for and consequences of abortion. It is therefore ironic that one of the first salvos of the abortion reform campaign actually had utilized this discourse. In 1959 an article in Chatelaine made a series of arguments for reform of the abortion legislation. It was a classic version of an internationally familiar genre.5 It began with an example of an uncomplicated case, that of a fourteen-year-old girl who was pregnant as the result of a gang-rape and who could not abort even after such a terrible experience. It went on to argue that unwanted pregnancies of this dramatic sort, or even those of poor women with several living children, would lead to dire social consequences. Sociopaths were likely to begin as "unwanted children." Moreover, important to the representation was the notion that quality

296 Janejenson

of life, for the mother and other members of the family, counted more than that of the foetus. Such emphases on social arguments, representing the needs of both the "underprivileged" and society as a whole, were common in campaigns for abortion reform in many Western European countries. They were evocative because they could be linked to the prevailing postwar discourse of Keynesianism and state welfare, in which societal well-being and development depended on state provision of economic and social conditions benefiting all citizens. This was a discourse of social equality. Therefore, the representation of abortion restrictions as affecting the poor more than the rich - who could afford contraception and travel to jurisdictions where abortion was legal - and as being generally unfair fitted well within it. In Canada, however, such a discourse of social and economic justice was less powerful and the Chatelaine article was one of the few of this genre, although the National Council of Women used similar arguments about social justice in its briefs to parliamentary committees considering reform in the mid-igGos.6 The dissemination of this discourse depended in most countries on its use by left-wing parties and other reforming organizations, which had also been the initial promoters of Keynesian state welfare. The Canadian Keynesian discourse was much weaker.7 The state's commitment to Keynesian state welfare was mild in the postwar years and the New Democratic Party was a marginal actor - especially in the early ig6os, when it had just been founded - in the universe of political discourse.8 In this way, abortion reform as a means of achieving social justice for mothers and for families was a theme present in debate but without much power to shape the hegemonic representation of the abortion issue.9 Moreover, some supporters of abortion reform went out of their way to reject such themes.10 Therefore, the compromise embedded in the Criminal Code in 1969 was based on the dominant voices of professional men and some leaders of organized Protestant religion. * J As a result, neither the meaning systems stressing medicalization nor liberalization directly addressed women's situations or their needs. Only if women themselves had gained more influence over the decision would these discourses have been contested and only in that way might state action have been differently constituted. The result of the virtually total silence of feminists' pro-choice voices in the abortion discussion in 1969 was that the politics of abortion in Canada set off down a road to 1988 via the path of medical definition and with an uneasy silence about the moral dimensions of the issue and interests involved. This was the representation of abortion that the Royal Commission contested in its 1971 report. It adopted a position that would have ef-

297 The Politics of Abortion in Canada

fectively put control of abortion in women's hands for the first twelve weeks of pregnancy. From twelve until twenty-four weeks, qualified doctors could have decided to terminate the pregnancy if they determined that their patient's physical or mental health was threatened. Thus the RCSW rejected the notion that abortion was simply a medical issue. For three months women could themselves decide to end a pregnancy, for whatever reason they might choose. Only in the next threemonth period did the health question reappear, but the Commission would have made a major change by removing both the need to consult a therapeutic abortion committee and the requirement that abortions be performed in an accredited hospital. Yet even for the Commission this position was not easily taken. There was great agreement among the commissioners about the major lines of the report, but recommendations nos. 126 and 127 did not bathe in this aura of unanimity. Three of the five dissenting statements distanced commissioners from the recommendations about reform of the Criminal Code; no other topic generated so much dissent. The message that was clearly imbedded within this important document about women in Canadian society was, then, that linking improvements in women's condition to greater reproductive freedom would lead to controversy and loss of support.12 There was a further, and even more important, legacy of the Commission in the abortion controversy, however. This stems from the representation of women that organized the Commission's work and set the agenda of reform that the state itself established.13 The public attention that "women's issues" received as a result of the RCSW'S work and of the agenda for change that it set down in its resolutions provided a focused definition of "feminism" and "women's needs."14 Thus, throughout the 19705 and well into the igSos the agenda for feminism shaped by the Commission was one that supported a prochoice position but concentrated feminists' efforts on matters other than the reproductive situation. The liberal feminism that was the legacy of the Commission never made further liberalization of the law its primary focus, although there was always support, particularly as the situation deteriorated, for greater access to abortion. The terms of reference of the RCSW were confined to equal opportunity issues, albeit broadly conceived. The discourse of the RCSW was based on "the human rights concept [which] provided an ideological framework in which individuals and organizations who did not all share the same feminist perspective could comfortably situate women's rights."15 The way to ensure women full human rights, according to the RCSW, was through an improvement in their economic conditions, particularly their participation in the paid labour force. In addition,

298 Janejenson

reforms of the political process to give women more influence in electoral and governmental politics were important because with political power women could begin to make the required changes. The RCSW utilised the ideas of 19608 human rights liberalism. It displayed a belief in the importance of state support for the disadvantaged until they could become equal competitors, a great deal of optimism about the possibilities of reform, especially through actions within the institutions of liberal democracy, and the belief that historic disadvantages could be overcome via proper state action and voluntary effort. The Commission represented historic discrimination against women as succumbing to political organization, action and correct policy. From within its human rights liberalism, the feminist message that the RCSW transmitted to the Canadian population was that women were individuals equal to any other in society, although some women needed help to overcome the effects of discrimination and achieve equality. Within the collective identity of genderless personhood thus celebrated, there were few words for talking about "difference," about the fact that only women bear children and that reproduction places women in a different situation from men. There was not much space for feminists to promote a vision of society in which women as a group - as an identifiable and politically viable entity - had rights that were different from those of other citizens. When the goal was to deny the existence of legitimate defences of difference, as liberal feminism did in the name of a common humanity, politics that stressed the specificity of women and their situation appeared contradictory and unsustainable. Silence could only surround the unspeakable, and liberal feminism focused primarily on strategies for achieving access to the labour force and equality in civil and political rights for women. Thus the weighting of the Canadian women's movement towards liberal feminism, as well as the controversy which the position on abortion had within the RCSW, had consequences in later years.16 In some ways, the abortion issue created a dilemma for liberal feminists. While continuing to demand improvements in the law and agitating against the worst abuses and conditions of the current situation the harassment of Dr Morgentaler, for example - in the 19705 the issue never dominated the agenda or became a defining one for liberal feminism. Instead, public activity was left either to Morgentaler defence committees or to single-issue organizations, such as the Canadian Alliance for the Repeal of Abortion Law (cARAL). 17 The extent of this downplaying of abortion was seen during the debates about the Charter of Rights and Freedoms in 1980-81. The 1981 Ad Hoc Conference quickly abandoned its original resolution that the Charter "be

299 The Politics of Abortion in Canada

amended to include the right to reproductive freedom." This demand was never pressed in the struggles that women waged around the Charter.1^ Moreover, in a very wide-ranging list of concerns made known to the Macdonald Commission by women's organizations, references to reproductive freedom, to reform of the abortion law, or to any version of the demand for women's control over their bodies were absent.1Q It was not only liberal feminists, however, who struggled with the question of how to do abortion politics, albeit never over a woman's right to choose. For example, while the first actions on the parts of the women's movement that came out of the New Left agitated for liberalization of the 1969 law from the beginning, they did not all agree on how to do that. An example of this is the 1970 Abortion Caravan, which was a spectacular, nation-wide action by feminists to publicize their demand that abortion be removed from the Criminal Code altogether.20 It both mobilized support for abortion rights and provided a dramatic public announcement that a women's movement prepared for radical action had arrived on the scene, with abortion on demand as a key claim. The Caravan began in Vancouver and ended with a group of feminists chaining themselves to the Public Gallery in the House of Commons and pelting the M.P.S with their slogan of abortion on demand. Despite the solidarity and publicity generated by this spectacular event after months of mobilization, even the Caravan demonstrated that the meaning of abortion divided the several groups forming the women's movement. These divisions continued, as other issues also marked out the differences among ways of being feminist. One result was that abortion reform, while never disappearing from the agenda of demands of all feminist groups, declined in importance as other issues and interests emerged to define the collective identity of the emergent feminism. The first division, which went to the heart of the identity of several wings of the movement, was whether abortion law reform should provide the major — or indeed the sole — focus of mobilization of women qua women or whether abortion on demand should be represented as only one of several major changes in law and social practices necessary for women's liberation. The first position was advocated by women close to far-left (specially Trotskyist) groups and parties. For these activists, abortion was an issue with great mobilizational potential. However, their existing analyses of capitalist oppression and exploitation provided a total explanation for women's situation, and the abortion question was simply a useful issue to bring people into contact with left-wing analyses of capitalism. The second position was argued primarily by non-aligned feminists who sought to develop a new analysis of

300 Janejenson

women's oppression either by merging analyses of class and patriarchal relations or by deducing it from a theory of patriarchy alone. No matter the theoretical differences among these non-aligned feminists, however, they all agreed that while access to abortion was a basic need for women's liberation, it was inappropriate to focus all politics on it. Women should be mobilized on other issues as well. Only with broadbased analyses and actions would feminism create solidarity across the existing divisions among women.21 Women Unite!, the book published in 1972 by the Canadian Women's Educational Press, presents both the outline of the controversy and an assessment from the perspective of non-aligned feminism: Those concerned with a single-issue orientation began coalitions for a national movement for repeal of the abortion laws. This group has become synonymous with women's liberation for many sectors of the Canadian population. This is unfortunate as it demonstrates the failure of the Canadian movement to develop a comprehensive strategy. While the control of our bodies is fundamental to the liberation of women, taken in isolation and within the context of the existing political structure, the demand for repeal of abortion laws will do little to change the general situation of women. 22 Such debates were never simply about words or theory. One real consequence was splits in groups, as factions were expelled for their opposition to the dominant line or departed with their criticisms intact to form new small groups doing different kinds of work.23 Another consequence was to provide the orientation of feminist work through the 19708. As described by Adamson, Briskin, and McPhail, nonaligned feminism in anglophone Canada, looking beyond the issue of abortion, divided (relatively peacefully) into two tendencies. Socialist feminism turned its attention to theory and workplace issues, while radical feminism concentrated on struggling against violence against women and other manifestations of misogyny as well as creating cultural alternatives.24 With these adjustments of strategy, abortion reform then became the primary responsibility of a broad-based coalition of reformers organized in CARAL and other groups supporting Dr Morgentaler through his encounters with the justice system. In Quebec, where the first Morgentaler trials were held, the left-leaning feminists who had founded Montreal's Centre des femmes quit the Morgentaler Defence Committee in 1972. Explicitly rejecting the Committee's focus on the rights of doctors, they set out as feminists to articulate their stance towards the abortion issue. While developing this analysis, eventually published in 1974 as the manifesto, Nous aurons les enfants que nous voulons, the Cen-

301 The Politics of Abortion in Canada

tre continued to provide abortion referral services. Nevertheless, the analysis of this marginalized group did not have much public success until later in the decade, when the Comite de lutte pour 1'avortement et la contraception libres et gratuits emerged as an important actor in post-igyG Quebec.25 The Morgentaler Defence Committee, composed of a wide-reaching coalition of doctors, members of family planning associations, CARAL, Trotskyists, anglophone feminists, and the women's commission of the Quebec Teachers' Union, lobbied the federal government for abortion law reform and publicized the Morgentaler cases.26 These were some of the reasons, then, that the women's movement did not concentrate on further liberalization of the abortion law in the 19705 and early 19805, although it always supported this goal. Indeed, the effect was great enough for one pro-choice activist to declare in 1981 that "abortion is the forgotten issue of the women's movement in Canada."27 The RCSW had helped to encase feminism in a language of human rights, which made it difficult to find words for speaking of women's real "difference" - their reproductive lives. Moreover, the largest part of the women's movement, which itself located women's historic difficulties in discriminatory practices and traditional attitudes rather than in control over reproduction per se, accepted this discourse. Finally, the question of how to pursue reform fragmented other wings of the movement from the start. Therefore, abortion politics remained constrained by the discourses and institutions of liberalization and medicalization; no wing of the women's movement was strong enough to alter it or to force other visions and arrangements into the centre of the universe of political discourse. There was an additional important factor which limited the attention the issue garnered - that of time. The 1969 reform had preceded the institutionalization and consolidation of the new women's movement. It took time for the full impact of the ineffective law to be felt. Throughout the 19705, legal abortions were available to women with the knowledge, energy, and money to seek them out. The urban areas and central Canada, where feminists were concentrated, did have hospitals that performed abortions. Therefore, the moral compulsion that might have followed from a complete ban on abortions did not exist. The 1969 reform, as McDonnell says, "knocked the wind out of the sails of the reform movement at a critical time, saddling it with a halfmeasure that made abortion just accessible enough to neutralize pressure for outright repeal of the law."28 It took a decade and a half of attrition of access before it became glaringly obvious that the possibility of "legal" abortions had no meaning if no doctor agreed to perform them or if no TAG existed. It also took the increasing success of the

302 Janejenson

pro-life movement to demonstrate that an immense threat to women's right to choose abortion came from the New Right. Once this was clear, feminists began to mobilize to protect and guarantee legalized abortion. The Quebec women's movement was the first to use the abortion issue as a major focus for mobilization. After the victory of the Parti Quebecois in the 1976 provincial election, charges against Dr Morgentaler were dropped by the new Minister of Justice. Nevertheless, this "victory" for abortion reformers remained a hollow one because hospitals were still not performing abortions in sufficient number. By 1978 a coordinating organization, linking women's groups, female unionists, and neighbourhood and other popular groups, had become a largescale feminist movement for free and accessible contraception and abortion. These actions marked the first real move of the Quebecois women's movement beyond Montreal and it also represented the solidification of its support beyond the intellectual milieu. Concrete consequences of the mass-based actions were that the provincial government acknowledged that its own locally based health clinics or private clinics could perform abortions, with the costs reimbursed by the provincial health care system. By the igSos, abortion was a widely accepted medical practice in Quebec, according to principles long demanded by the pro-choice movement.29 The nationalism of the PQ legitimated breaking federal law, under pressure from the newly regrouped women's movement. In the rest of Canada, large-scale mobilization came slightly later and under much more difficult circumstances. By the igSos the women's movement was again beginning to take up the issue of abortion in a serious way, but by then the high ground had been seized by the anti-choice activists. Moreover, within the women's movement, the representation of abortion in the straightforward terms of pro-choice had begun to trouble some feminists. In Toronto, for example, singleissue campaigns and the broad-based International Women's Day Coalition, a major linking organization for feminist action, came to be deeply divided along racial lines. Particularly singled out was white women's uncritical support for abortion, while women of colour were still effectively denied the right to bear and raise children, because of their social situation. Women of colour, moreover, feared both contraception and abortion as potential weapons in the state and men's hands to limit some women's child bearing.30 In response to both the successes of the pro-life movement in reducing access and the criticism that pro-choice rhetoric was racist, too narrow, and too liberal, in 1982 a new organization appeared in Toronto. The Ontario Coalition for Abortion Clinics redefined the issue as one

303 The Politics of Abortion in Canada

of reproductive rights, by which it meant not only the right to choose abortion but also the rights of women to bear healthy children and to control their health and sexuality. Constructing a wide-ranging socialist feminist analysis that linked reproductive rights and health to child care, pay equity, and new power relations between women and men, the Coalition took inspiration from the successes in Quebec as well as from the long-standing demand of the abortion reform movement for equitable and meaningful access. The group invited Dr Morgentaler to establish a free-standing clinic in Toronto and then undertook to provide the necessary financial and other support for his legal defence. The strategy was to use the defence of the clinic as a mobilizational focus for expanding attention to reproductive rights. Of course, pro-life groups fire-bombed the clinic, picketed it constantly, and harassed its users. Such confrontational tactics on the part of pro-life groups reflected both their growth in the 19705 and their increasing frustration in the face of new feminist mobilization.31 The militancy on both sides succeeded over the 19808 in recasting the discourse of abortion in partisan and public debate. Abortion as health care was swamped by a language of "rights" and morality. For pro-life activists, a foetus's rights overrode those of the woman who carried it, while pro-life politics became "a crusade against feminism, secularism, and the rise of moral permissiveness in Canadian society."32 Pro-choice activists responded that women's rights should prevail, with every woman having the right to make a choice about abortion. This shift to a pro-choice discourse had the effect of jettisoning many of the social arguments for abortion that had been present both in the language of medicalization and in the left's discussion of abortion in the i gGos. This happened despite the best efforts of groups like the Ontario Coalition for Abortion Clinics to broaden the meaning of reproductive rights and health. By the mid-19805, then, two groups faced off. One represented the issue as being about life, babies, and rights. The other represented it as about women, freedom of choice, and rights. When the Supreme Court used the discourse of medicalization to strike down a law that no longer had the support of anyone, the way was open for these two diametrically opposed discourses to shape the parliamentary and public debates. With the Court's decision, women had finally emerged from the shadow of the doctors. But the victory celebrated on 28 January 1988 had its terrifying side. Now, instead effacing the doctor and the state in hospital consulting rooms, women faced in the streets and Parliament those who would charge them with bloody babies and destruction of society.

304 Janejenson

This is a battle that is very hard to win once and for all. The Senate vote on 31 January 1991, killing the Tory government's "compromise bill," resulted from an unholy alliance of pro-choice and pro-life supporters. Indeed, the tie reflected the stand-off described here, as well as the lingering power of the discourse of medicalization. Many observers said that the doctors' massive intervention against the bill turned the tide. Nevertheless, the defeat of the bill still leaves open a great deal of room to put pressure on provincial governments to limit access, to threaten candidates in up-coming federal elections, and worst of all - to harass women and doctors. Therefore, once again, the "victory" is only partial. A real victory can come only after a systematic political effort to mobilize so as to reintroduce a discourse about abortion, which couples women's need to choose in order to control their lives with the notion that in making such choices women are acting as responsible persons, concerned not only about themselves but also society. The loss of the discourse of the social in the 19705 meant that women choosing abortion could be accused of selfishness and moral complacency. Now we must instead insist that a democratic society is not simply an individualistic society, where women as individuals make choices, whether freely taken or forced upon them. A truly democratic society is one that gives its citizens the means as well as the space to shape their own lives. Therefore, it must also be a profoundly egalitarian society, where women's specific role in childbirth is recognized and adequate social provision made for their needs. A part of this is the insistence that equality requires a greater level of state action and responsibility for the women, men, and children who live within its border, so that they can responsibly design their lives. In such a truly democratic and egalitarian society, people must be able to choose if and when to have children, and they must be recognized as fully capable of making a reasonable and reasoned decision. No one else can decide for them, but neither should they be accused of making their decision in a moral or a social vacuum. A more positive notion of human nature must lie at the heart of this politic, abandoning suspicion of one's fellow citizens and recognizing all of them as equals. Implied in such a discourse of reproductive rights is not only a profound critique of the militant pro-life opposition to feminism and its conservative notions of unequal family life, but also a rejection of the idea that Canadian society should be designed to respond solely to market forces and private decisions. According to this understanding of the social, economic and social choices must be re-publicized, just as individuals' decisions about if and when to have a child can be re-interpreted as social.

305 The Politics of Abortion in Canada

There must be a return to - and major elaboration of- earlier leftist and feminist tendencies to link societal well-being and access to abortion and contraception. By insisting that women are fully responsible citizens, capable of acting in the best interests of both themselves and their fellow citizens, feminism's insistence on political and economic equality comes through clearly. And we see, too, why this language of reproductive rights must place equality and democracy at its heart. Only by doing so is it possible to combine an insistence on the absolute necessity of access to abortion with a recognition that women's decision to seek abortions are taken responsibly by female persons. Finally, only by insisting on women's right to have children and to choose not to, will a broad-based coalition of support come into existence strong enough to challenge anti-choice forces and to guarantee both safe abortions to all women who choose them and a political process that can meet their needs and those of their children.

CHAPITRE VINGT-CINQ s

Lesfemmes et VEtat canadien CLAIRE BONENFANT

Claire Bonenfant discusses the Royal Commission's report in its historical context and reviews some of the gains that have been achieved by women in Canada since its publication. Despite these gains, women continue to be beaten, humiliated, and raped, to fear the night, to experience hatred. The next twenty years will require a continued struggle against a violent and authoritarian society. She argues that one of the most important challenges of the next twenty years will be to ensure economic equality, control of reproductive capacity, and women in power within the Canadian state, while redefining the meaning of power to meet the needs of women.

On m'a demande de parler des prochains vingt ans. J'espere que vous n'attendez pas quelque chose cornme «le choc du futur» au feminin! J'essaierai plus modestement de voir quelles sont les perspectives pour les femmes canadiennes, quels sont les enjeux prioritaires pour poursuivre la lutte entreprise pour la reconnaissance de nos droits economiques et sociaux. Avant d'y proceder, je serais genee de le faire sans jeter un regard sur les luttes du passe, pour rendre par ce biais un hommage rapide aux femmes qui ont mene ces luttes, car tout n'a pas commence durant les annees 70 et 80. En particulier, je tiens a rappeler que la Federation des femmes du Quebec, dont j'ai assume en 1990 la vicepresidence, a etc creee en 1966. Elle a participe a toutes les grandes etapes de 1'histoire des femmes au Canada et au Quebec depuis vingtcinq ans, comme 1'a rappele Monique Begin. Mais le rapport de la Commission Bird, dont nous celebrons les vingt ans, redonna probablement une infusion d'energie au mouvement des femmes actif depuis plus de soixante-dix ans.

307 Les femmes et 1'Etat canadien

C'est en 1973 que se font sentir les effets de ce rapport, qui concluait au constat d'une large discrimination envers les femmes dans presque tous les secteurs de la vie des femmes au Canada. Cette anneela naissaient des comites de la condition feminine dans les grandes centrales syndicales. A 1'interieur de leur syndicat, les femmes decouvraient que les travailleuses avaient interet a se regrouper au sein meme de leur organisation, car leurs problemes specifiques etaient souvent laisses pour compte dans la lutte des travailleurs en general. A Quebec et a Ottawa, et plus tard dans plusieurs provinces, on creait, suite aux pressions des groupes de femmes, des conseils consultatifs sur la situation de la femme. Quelles etaient a cette epoque les grandes revendications des groupes de femmes, des conseils et des comites de la condition feminine? C'etait le moment des proces Morgentaler et de la lutte pour la liberalisation de 1'avortement. On reclamait des conges de maternite, des garderies, une legislation qui reconnaitrait le principe du « a travail egal, salaire egal». Bref, on reclamait une reorganisation sociale qui tienne compte des femmes, qui les associe a toutes les decisions de la collect!vite. La societe commencait a se familiariser avec le langage des feministes meme si les femmes elles-meme avaient encore peur du mot et de la chose. En 1975, 1'Organisation des Nations Unies decretait 1'annee internationale de la femme. Vous vous souvenez des diverses reactions que cet evenement a suscitees et chez les hommes et chez les femmes? Un grand nombre de militantes feministes crierent a la recuperation de leurs luttes. En principe, elles n'avaient pas tort. Quant aux hommes, ils en firent souvent des gorges chaudes et soupirerent d'aise lorsqu'arriva le 31 decembre. On arreterait enfin d'en parler! Ils ignoraient que ce n'etait pas fini, car cette annee internationale des femmes aura eu le merite de donner la parole aux femmes en leur donnant des tribunes plus nombreuses et de mettre les groupes en rapport les uns avec les autres. II y a de cela quinze ans. Et depuis ce temps, le mouvement des femmes n'a cesse de grandir, s'affirmant comme le mouvement social le plus important de notre epoque. Comme 1'ecrivait la sociologue Danielle Lafontaine a son sujet, il est « celui qui est le plus intimement lie a 1'avenir de nos societes, celui dont les orientations impliquent des bouleversements tout a fait fondamentaux des rapports sociaux prevalant actuellement1^ Personnellement, je pense que le mouvement des femmes constitue le defi le plus radical dans ce qu'a produit de meilleur le grand brassage d'idees des annees 70 et 80. Je ne suis pas certaine que les sociologues aient tout a fait compris la nouveaute du mouvement des femmes

308 Claire Bonenfant et sa permanence. Sa nouveaute, c'est sa difference. Pas seulement la difference qui vient de celle qui existe entre les hommes et les femmes, mais surtout celle qui remet en question certaines certitudes des progressistes. Dans leur lutte pour 1'egalite, les femmes ont etc confrontees a refuser la soumission a un monde masculin, mais aussi a la necessite de trouver une place dans le monde. Situation ambigue, qui nous amene a revendiquer le droit a la difference dans 1'egalite, mais aussi a mobiliser les energies collectives pour le changement. Les annees 70 et 80 ont etc marquees par certaines victoires des femmes. Leur tenacite a fmi par faire bouger les legislateurs. Au Quebec, la reforme du Code civil en 1980 a enfin consacre 1'egalite de rhomme et de la femme dans leurs rapports juridiques a 1'interieur du mariage. Depuis 1987 au Canada, la femme collaboratrice salariee a les memes droits que les autres salaries, et un jugement rendu par la Cour Supreme du Canada en 1989 a meme reconnu a la salariee du conjoint le droit de beneficier de prestations d'assurance-chomage. Le Code criminel a decrete 1'extension de la notion de viol pour permettre 1'accusation du conjoint. La Charte canadienne des droits et libertes, qui contient deux articles traitant directement du droit des femmes, est desormais enchassee dans la constitution. Mais une fois que les lois sont promulguees, elles sont interpreters de differentes facons. Suivant le jugement de chacun, leur sens peut alors etre denature: 1'interpretation des lois reste entre les mains des juges. La magistrature etant encore massivement entre les mains des hommes, on peut se poser des questions ... Nous avons le droit de vote; nous avons acces a 1'education: plus de 50% des femmes occupent un emploi remunere; nous controlons dans une certaine mesure notre fertilite; nous avons compris 1'importance de nous regrouper. Mais ou en sommes-nous vraiment? Nos strategies sont-elles au point? Quelles sont les limites de notre action? Ce questionnement est difficile mais indispensable. Je suis, pour ma part, irremediablement confiante dans 1'avenir des femmes, sur le plan economique, social et politique; mais je suis aussi lucide. Chaque jour des femmes sont battues, humiliees, violees. Nous avons peur de sortir seules le soir. Quand nous relevons la tete, nous suscitons la colere, parfois la haine. Nous sommes des «voleuses de jobs», ce monde nous ignore ou nous est hostile. II nous avilit par la pornographic et il faut bien en parler, on nous assassine pour la seule raison que nous sommes femmes. Les evenements de Polytechnique

309 Les femmes et 1'Etat canadien sont venus cruellement nous rappeler la precarite de notre situation et 1'ampleur du phenomene de la violence faite aux femmes. Mais prenons garde toutefois de faire un lien unique entre la prise de conscience des femmes, leurs revendications et la violence familiale ou sociale. Ce n'est pas d'aujourd'hui que cette violence s'exerce; la difference c'est que nous ne 1'acceptons plus. La question est: que faut-il faire maintenant? Je dirais plutot que faut-il faire encore? C'est continuer la lutte un peu plus loin, un peu plus haut, avec quand meme un peu plus d'outils. Les vingt prochaines annees, a 1'instar des vingt dernieres, nous continuerons de vivre dans une societe concue et organisee par des hommes. Seulement 20% des besoins en garderie sont satisfaits; les horaires de travail sont etablis pour des celibataires ou pour des hommes qui ont du service a la maison, en 1'occurrence une epouse. On refuse encore les femmes a 1'embauche a cause de leur sexe, de leurs possibles responsabilites dites « conjugates ou familiales ». Ceux qui nous gouvernent ne semblent pas avoir realise que les femmes ont change et qu'a cause de cela, le monde doit changer. Aussi, le dossier le plus politique des annees a venir est-il celui de la revision des rapports hommes/femmes dans le prive mais aussi dans les organisations. Les hommes posent souvent la fameuse question: «mais qu'est-ce qu'elles veulent les femmes? » II me semble que c'est de plus en plus clair. Nous rejetons les structures d'une societe autoritaire, violente et meprisante envers les femmes, structures qui s'expriment en particulier dans les differentes politiques de 1'Etat. Devant la violence des hommes, leur resistance au changement, a notre tour nous demandons: «qu'est-ce que les hommes veulent? » Quelques-uns se donnent un new look, « pour mieux vous seduire, mon enfant». Quelques-uns se plaignent que dans notre remise en question, nous les avons laisses derriere. Quelques-uns, devant les nouvelles exigences des femmes, prolongent ou eternisent leur celibat. Ce qui leur est d'ailleurs devenu plus facile grace aux aliments surgeles, aux vetements perma-press et aux fours microondes. Mais si Ton regarde de plus pres, je crains que des raisons plus graves se cachent derriere cette nouvelle autonomie domestique. Beaucoup de ces nouveaux hommes trouvent encore qu'il est plus facile de deballer son linge au lavoir que de deballer ses emotions devant une partenaire plus sensible a la communication entre conjoints, qu'a 1'autorite virile que deployait papa. Mais se serait reduire grandement le probleme du couple que de le limiter au partage des taches et meme au partage des emotions. Ce qui pose le plus grand probleme dans la reconciliation hommes/femmes depuis ce grand branle-bas de

310 Claire Bonenfant la revolution feministe de ces dernieres annees, c'est le partage du pouvoir - le partage du pouvoir economique, le partage des responsabilites en matiere de contraception, d'education, etc. Ce qui rend le partage de tout cela plus difficile et impossible a comptabiliser, c'est qu'a travers cette complexite, 1'amour, 1'affection reclame ses droits, ses exigences. Mais en plus de ces realites quotidiennes dans notre vie personnelle, le defi qui nous attend comme citoyennes a part entiere dans les annees qui viennent, c'est celui de la construction d'une societe adaptee a notre realite, ou 1'autonomie sera permise et confortable pour les hommes et les femmes. Les conditions objectives qui permettraient cette integration totale a la societe ne sont pas la. II serait fastidieux de dresser la liste exhaustive des dossiers dits « de condition feminine », mais on peut facilement les regrouper par grands themes. En commengant par la condition economique des femmes. Dans une etude publiee par le Conseil consultatif sur le statut de la femme (CCSSF), intitulee Vivre ou survivre: les femmes, le travail et la pauvrete, on nous rappelle qu'au Canada il y a plus de femmes economiquement faibles que d'hommes, et que le risque de connaitre le denuement est beaucoup plus eleve pour les femmes que pour les hommes. Entre 1971 et 1986, le nombre de femmes economiquement faibles a augmente de 110,3%, al°rs q ue cette augmentation n'a etc que de 23,8% chez les hommes2. Pourtant, la plupart des femmes ont un travail remunere, mais elles sont davantage responsables de la famille qu'en 1971. Les femmes continuent d'assumer le travail menager et 1'essentiel de la charge des enfants. Ces responsabilites et le cout des services constituent les causes majeures de la pauvrete des femmes. II n'en demeure pas moins que le travail remunere, malgre les obstacles auxquels les femmes ont a faire face, est encore le meilleur moyen de sortir de la pauvrete. Mais a certaines conditions. Parmi ces conditions, il faut necessairement un changement dans la division actuelle du travail entre les homines et les femmes. L'Etat peut jouer un role important dans la realisation de certains objectifs d'equite en emploi, en particulier 1'equite salariale. Les chartes des droits permettent maintenant le recours aux programmes d'equite en emploi pour contrer la discrimination systemique. Ces programmes ne sont pas une panacee pouvant renverser a breve echeance la situation d'inferiorite economique et de subordination des femmes, qui prend sa source dans des causes historiques. Par ailleurs, les experiences en cours au Quebec, au Canada et ailleurs dans le monde nous portent a penser qu'ils sont des moyens adequats dans la conjoncture actuelle pour equilibrer et ameliorer la represen-

311 Les femmes et 1'Etat canadien

tation des femmes sur le marche du travail, tant sur le plan quantitatif que qualitatif. Mais le veritable enjeu, c'est la creation d'emplois. L'autonomie economique que reclament les femmes et les autres groupes economiquement faibles passe par le droit a 1'emploi. Ce n'est pas uniquement une question d'equite sociale et de dignite, e'en est une de developpement economique, social et demographique. Nous avons toutes interet a ce que l'emploi devienne la premiere ligne de defense centre la pauvrete, centre le piege de 1'assistance sociale, pour des meilleurs services aux families, pour un meilleur respect des travailleurs et des travailleuses. Si le travail et ses conditions demeure un des grands enjeux des prochaines annees, c'est qu'il est le principal systeme de repartition des revenus; mais les systemes fiscaux et les depenses gouvernementales constituent une autre forme de repartition des revenus. Les prestations d'assurance-chomage et d'assistance sociale ainsi que les allocations familiales constituent des transferts de revenus aux individus et aux families. Les differents services comme les soins medicaux, 1'education, les garderies permettent aussi une redistribution des revenus. Le vent de conservatisme qui souffle depuis deja plusieurs annees, venant d'outre-frontieres, se traduit de plus en plus par des politiques fondees sur la conviction qu'un vaste secteur public et des mesures sociales universelles sont la source d'incapacite et de stagnation economique. Les grands lobbies reclament et obtiennent dans un grand nombre de secteurs la dereglementation et la privatisation de certains services autrefois assures par 1'Etat. Les gouvernements qui ont flirte durant les dernieres annees avec la social-democratic pretent volontiers une oreille complaisante aux discours de 1'establishment empreints de logique economique. La privatisation, en transferant des services fournis par 1'appareil gouvernemental a des organismes du secteur prive plus selectif, risquet-elle de compromettre les acquis des femmes? Accepterons-nous le discours defaitiste qui preche 1'acceptation et valorise le re tour au prive ou continuerons-nous a exiger un nouveau contrat social tenant compte des besoins des femmes qui constituent, faut-il encore le rappeler, 52% de la population? II est a craindre que le mouvement de privatisation n'aille a 1'encontre du mouvement feministe depuis les annees 70. « Le prive est politique » pourrait prendre maintenant une signification plus ambigue et plus tragique, si c'est 1'Etat qui renvoie les femmes a la sphere privee par choix politique. L'Etat-providence, en developpant des politiques universelles en matiere d'education, de sante et de revenus, a permis aux femmes d'ac-

312 Claire Bonenfant

querir, en plus des droits juridiques, des droits sociaux leur assurant un minimum d'independance economique et d'autonomie personnelle. II ne s'agit pas de magnifier 1'Etat protecteur, ni d'y voir une condition necessaire et indispensable a la liberation des femmes, mais d'examiner le role qu'il a joue historiquement. Pour de nombreuses femmes, 1'Etat a etc et demeure la seule ressource capable d'ameliorer rapidement certains aspects insoutenables de leur condition. L'elaboration de nombreux programmes sociaux et economiques auxquels toutes les citoyennes et les citoyens ont acces a signifie la transformation du vecu domestique et la possibilite de rompre la totale dependance des femmes a 1'interieur de la famille. La crise de 1'Etat-providence et 1'apparition de nouveaux modeles economiques fondes sur la privatisation des services sociaux et la selectivite des allocations sociales coutera probablement tres cher aux femmes. Toutefois, la perte de certains acquis nous permettra d'ouvrir les yeux sur la precarite de cette relation avec 1'Etat et contribuera peutetre a nous rendre conscientes du danger de confier notre existence a un mari pourvoyeur et/ou a un Etat pourvoyeur. Peut-etre est-il vrai que 1'Etat-providence ne convient plus adequatement a la societe postindustrielle. S'il n'y a pas de retour en arriere envisageable, il revient aux elus de proposer des solutions de compromis qui produisent des effets equivalents pour les families a faibles revenus et leurs membres. II ne s'agit pas purement et simplement de proteger les acquis mais d'avoir une pensee constructive, d'imaginer des solutions dans 1'immediat, mais aussi a long terme. Ces solutions, 1'Etat doit les elaborer en concertation avec tous les groupes sociaux impliques dans 1'economie. Les femmes, compte tenu de leur retard historique, de leur marginalisation systemique et du role qu'elles jouent dans 1'institution familiale, doivent etre consultees d'une facon specifique. Les femmes veulent des transformations sociales qui correspondent a leurs besoins, mais les partis politiques semblent avoir beaucoup de mal a prendre en consideration leurs aspirations nouvelles. Nous avons revendique nos droits a 1'interieur de la famille et de la societe pour plus de responsabilite et de liberte. Une chose est claire, nous ne voulons plus de tutelle ni de 1'Etat ni de la structure familiale. Cette nouvelle affirmation nous confronte cependant a des besoins materiels pour nous-memes et pour nos dependants. Cela implique que nous devons travailler centre remuneration. Cependant, un marche du travail discriminatoire pour les femmes, un taux de chomage eleve ne sont pas des conjonctures favorables pour le faire, d'autant plus que les structures de la famille perpetuant nos roles familiaux contribuent a nous rendre moins competitives.

313 Les femmes et 1'Etat canadien II est impensable que nous nous desinteressions du debat en cours. Le mouvement feministe doit se faire 1'expression des femmes en tant que groupe. II doit les rendre visibles, faire connaitre leurs besoins et leurs exigences de transformation sociale. Mais la societe tout entiere doit etre interpellee a ce sujet et les gens qui detiennent le pouvoir doivent realiser que le mouvement des femmes est devenu le moteur le plus novateur du changement social. La solidarite, 1'equite et la justice qui sont 1'essence de nos revendications ne sont-elles pas aussi 1'essence des politiques sociales? II faut trouver des solutions pour sauvegarder cet ideal. II faut done elargir le debat etatisation vs. privatisation. Pierre Rosanvallon ecrit, dans La crise de VEtat-providence: II est done urgent de sortir de cette alternative etatisation/privatisation. Comment? Essentiellement en redefinissant les frontieres et les rapports entre 1'Etat et la societe. La question que pose la crise de 1'Etat-providence est en effet d'ordre sociologique et politique. Et raisonner uniquement dans les termes etatisation/privatisation revient a 1'occulter en la reduisant en definitive a sa seule dimension financiere. Le « qui doit payer les services collectifs? » fait oublier le « qu'est-ce qu'un service collectif?3» L'ideologie du «tout economique » et la negation du social amenent les gouvernement a proposer comme seule solution des choix de developpement axes sur 1'implantation de programmes industriels. En reduisant la responsabilite politique aux questions economiques et militaires, on impose la diminution des investissements sociaux, ce qui a un impact sur la satisfaction des besoins individuels. Cette attitude est exactement a 1'oppose de ce que les feministes s'acharnent depuis plusieurs generations a faire admettre, c'est-a-dire que les questions touchant a la famille, a la sexualite et a la reproduction sont eminemment politiques et ont des incidences sur tous les plans de la vie economique et sociale. Les gouvernements font face a un defi de taille mais auraient tort de n'ecouter que les comptables. Tout n'est pas economique, la rentabilite n'est pas toujours compatible avec une morale politique minimale. Un autre enjeu des annees a venir, et non le moindre, est celui qui fait deja 1'objet de debats et de mobilisations a travers le monde: le developpement spectaculaire des nouvelles technologies de reproduction humaine. C'est 1'avenir des rapports humains qui est fondamentalement au cceur des controverses soulevees par les differents courants de pensee qui se cotoient a leur sujet. Dans ce dossier, les evenements s'accelerent au point qu'il est a craindre que les principales interessees, les femmes, n'aient pas suffi-

314 Claire Bonenfant

samment de moyens et de pouvoir pour intervenir selon leurs interets et leur desir. II n'est pas de mon propos de rentrer dans le dedale des arguments au sujet des nouvelles technologies de reproduction. Qu'il nous suffise de dire que la mobilisation feministe doit s'inscrire a mon avis dans la resistance a leur developpement et a la recherche de solutions aux conditions qui conduisent les femmes a se soumettre a des experiences couteuses, douloureuses et, dans la majorite des cas, vouees a 1'echec. Le discours demographique constitue a lui seul une pression importante sur le desir d'avoir des enfants a tout prix. En realite, notre preoccupation ne doit pas concerner 1'efficacite de ces nouvelles technologies, mais les valeurs qu'elles remettent en question. Nous devons continuer a porter les revendications du mouvement des femmes pour la sante, c'est-a-dire le rejet de la dependance que vivent les femmes dans leur rapport avec le pouvoir medical, en particulier, dans ce domaine de la reproduction. Dans ce meme domaine de la sante, nous devrons poursuivre la lutte pour le droit de choisir le temps de nos maternites, par la contraception bien sur mais aussi par la liberte de 1'avortement. Le projet de loi depose le 3 novembre 1989 a la Chambre des communes qui prevoit la recriminalisation de 1'avortement contient encore une fois 1'idee que les femmes sont irresponsables, qu'elles sont des incapables puisqu'il faut remettre tout le pouvoir entre les mains du medecin. II faut absolument combattre cette idee. Les femmes doivent continuer de se mobiliser autour de cette question afin qu'un jour, nos filles, nos petites filles et les suivantes n'aient pas a recommencer les memes debats, les memes combats et qu'elles soient enfin libres d'employer leur vie et leur energie a construire une societe ou elles auraient une place. Ce qui est dramatique dans le combat feministe, c'est que tout est important. On ne peut laisser tomber la bataille centre la pornographic, c'est notre integrite qui en jeu. La lutte contre la pauvrete conditionne notre survie meme. La liberte de choisir nos maternites fait partie de 1'essence meme de notre autonomie, et nous pourrions continuer ainsi longtemps. Mais s'il fallait nous prononcer sur une priori te, j'irais vers la necessite de definir notre rapport au pouvoir. Plus que jamais, les femmes sont aux portes du pouvoir et malgre tout elles hesitent encore a en franchir le seuil. Dans le dernier tome de son autobiographic, Tout compte fait, Simone de Beauvoir ecrit « qu'un individu se definit autant et parfois davantage par ce qui lui echappe que par ce qu'il a atteint 4 ». En matiere de pouvoir, ne sommes-nous pas, nous les femmes, definies pas notre absence des structures administratives et decisionnelles, ce qui expliquerait d'ailleurs la lenteur des changements que nous revendiquons?

315 Les femmes et 1'Etat canadien

A 1'aube des annees 2000, cinquante ans apres avoir obtenu le droit de vote au Quebec - et plus de soixante-dix ans au Canada -, les femmes occupent une place derisoire a 1'interieur des structures du pouvoir formel et traditionnel: les parlements, les gouvernements, les cours de justice. Si les femmes sont peu presentes aux postes electifs et aux postes executifs combles par les elus ou par nomination, on s'apercoit egalement qu'elles ne sont pas tellement mieux representees dans les instances executives des partis qui portent ces individus au pouvoir. Pourtant, ici comme dans la plupart des pays occidentaux, les femmes sont nombreuses a adherer et a militer a la base dans les partis politiques. Mais pourquoi done sont-elles sous-representees aux postes politiques? Serait-ce tout simplement parce que les femmes ici sont directement en concurrence avec les hommes dans un monde qui a toujours etc le leur et qu'ils ne veulent pas ceder? Serait-ce notre socialisation qui conditionne notre comportement et notre rapport au pouvoir? II serait ambitieux, dans le cadre de cette allocution, de cerner les causes de ce qu'on pourrait percevoir comme le non-appetit de pouvoir des femmes, du moins en apparence. Longtemps sans pouvoir, les femmes veulent-elles aujourd'hui vraiment y acceder? Autrement dit, voulons-nous forcer le jeu du pouvoir en exergant d'une facon plus ou moins lointaine notre traditionnelle influence ou sommes-nous pretes a plonger carrement dans 1'action politique pour faire valoir nos interets? Nous nourrissons souvent une sorte d'ambiguite vis-a-vis le pouvoir en y accedant sans en etre, comme si les zones d'influence etaient nettement plus habitables et confortables que les frontieres bien definies des structures decisionnelles. L'explication tient sans doute a 1'histoire qui nous a faites ce que nous sommes, aux roles qu'on nous a assignes. Les femmes savent mieux user de persuasion que de force. Or, le combat politique leur apparait souvent comme une fosse aux lions dans laquelle, par instinct de conservation, elles n'ont pas envie de se jeter. Le constat est clair: nous avons jusqu'ici beaucoup d'excuses historiques, politiques, psychologiques, sociologiques etc. mais - faut-il pour autant bouder le pouvoir? - faut-il, a 1'inverse, 1'investir en masse pour etre sures de n'y etre pas ensevelies? - faut-il plus prudemment se regrouper pour en apprendre les rouages? Un courant de pensee affirme que «le pouvoir politique n'est pas accessible aux femmes parce qu'il ne leur ressemble pas». La repre-

316 Claire Bonenfant

sentation des fernmes dans les instances de pouvoir ne pourra alors passer que par une redefinition du pouvoir. Si nous adherons a cette theorie, il nous faut bien cerner ce que nous voulons changer a la forme actuelle du pouvoir: 1'individualisme, la centralisation, la hierarchic, etc. Et si effectivement nous voulons le modifier, quelle serait la meilleure facon de nous y prendre, de 1'interieur ou de 1'exterieur? Marilyn French, dans son essai La fascination du pouvoir, affirme que «les hommes occupant en masse des postes d'acces au pouvoir, il y a peu de chances de modifier la morale de notre monde a moins qu'ils n'acceptent de collaborer au changement et n'adoptent un nouvel ordre de valeurs5». Heureusement, elle ajoute plus loin qu'a 1'heure actuelle bien des hommes aspirent a ce changement. Que Dieu 1'entende, car s'il en est autrement, il ne nous reste d'autre choix que de nous inscrire en marge des structures etablies du pouvoir et nous resoudre a mener perpetuellement une action de subversion et de pression. Pour terminer, je ne saurais passer sous silence I'importance que revet pour les femmes du Quebec le debat constitutionnel, qui ne peut manquer de marquer profondement les prochains vingt ans, quelle qu'en soit Tissue. La Federation des femmes du Quebec a depose un memoire aupres de la Commission parlementaire elargie sur 1'avenir du Quebec. La participation de notre organisme a cette commission s'inscrit en continuite directe avec ses actions anterieures, comme en temoigne entre autre sa participation au Comite mixte du Senat et de la Chambre des communes sur 1'accord constitutionnel de 1987. Les femmes comme citoyennes ont le devoir de participer pleinement a la definition de notre societe et a la definition de ses regies de fonctionnement. Nous les feministes sommes porteuses d'un projet de societe. Nous voulons une societe non discriminatoire et democratique, qui cree un environnement favorable au plein exercice des libertes civiles et civiques. En attendant ce jour, il nous faut continuer d'agir car les choses ne s'arrangeront pas d'elles-memes. La force des femmes sera plus forte que la force des choses.

Notes

CHAPTER ONE

1 This paper was read at the first session of "Women and the Canadian State: Twenty Years of Feminist Policy Making?", an interdisciplinary conference held to commemorate and celebrate the twentieth anniversary of the publication of the Report of the Royal Commission on the Status of Women in Canada [hereafter RCSW] (Ottawa: Information Canada 1970). 2 RCSW, 226. The works referred to were papers by Maggie Benston, "The Political Economy of Women's Liberation," referenced as a "mimeographed discussion paper," Vancouver Women's Caucus (1969-70); and Marlene Dixon, "Why Women's Liberation?" Ramparts (1969). Anyone active in the movement at that time will certainly attest to the fact that these two articles were absolutely "ovarian" (in contrast to "seminal") influences on the movement, especially in Canada. Both were written by women who were not Canadians, but at least one of them was living and writing in Canada. Why were these articles particularly influential in Canada? This is not the place fully to explore that question, but my hypothesis is that the philosophical roots of the Canadian women's movement lay much more in Continental political theory - Marxism and socialism - than in classical liberalism, while the American women's movement was thoroughly rooted in the liberal tradition. Benston and Dixon both worked out of an essentially socialist/Marxist perspective. This both struck a chord with active Canadian members of the movement (at least in its anglophone branch) and provided a prolonged discussion and debate about the relationship between feminism and Marxism. Benston's and Dixon's papers were very important contributions, indeed, initiators of that debate. 3 The Department of Philosophy was a department of the University of Toronto within the Faculty of Arts and Science. However, because the Univer-

318 Notes to pages 4-7 sity of Toronto was a college system, there were two other female philosophers at the University of Toronto prior to my arrival, one in the Philosophy Department at Trinity College and one in the Philosophy Department at Victoria College. All members appointed to the University department also became members of University College. 4 I do wish to take this occasion publicly to express my gratitude and great respect for Professor Tom Goudge, who was the chairman of the department at the time I was hired and who was, indeed, the person who hired me, chairs of departments then having virtually sole authority for such decisions - and a good thing it was for me, too. His wife, Helen, was also immensely supportive, particularly during the time when I was having my children. They were both among the finest people I have known and I continue to bear them both deep affection, gratitude, and respect. 5 RCSW, 261. 6 Ibid., 271, par. 181. The package of recommendations concerning day care is found in chapter 4, paragraphs 167, 170, 173, 181, 187, and 188, 29272. 7 At that time, faculty members at the University of Toronto could not take another degree at that institution, and it was for that reason that I had to enroll at Osgoode, though I do not mean to suggest by this that I was ill-disposed to do so. Osgoode was a pretty heady place in those early days, made more so by the fact that in my year roughly 30 percent of the class was female. At that time, Osgoode unabashedly stood for using the law as a tool for social change, though students' beliefs about what constituted "desirable social change"were frequently at odds with those proposed by the faculty. 8 This was the predecessor organization of the Canadian Abortion Rights Action League (CARAL), which has continued to do a superb job of providing national leadership on the abortion issue. We must all recognize the commitment and strength of its wonderful executive director, Norma Scarborough. In i g 8 i , I was honoured to be asked to become an honorary director of CARAL, and I have been pleased to continue my association with that organization in that capacity ever since. 9 R. v. Morgentaler, Smoling and Scott, [1988] i S.C.R. 30. 10 Ibid. 11 R, v. Morgentaler (1990). As yet unreported, decision of the Nova Scotia Provincial Court, re Section 6, Medical Services Act X 14, rendered by Judge Joseph P. Kennedy, 19 October. 12 We must all also acknowledge the debt we owe to Eleanor Wright Pelrine, who expended so much of her strength and energy in this fight. Her book, Abortion in Canada (Toronto: New Press 1971), was a major landmark in this struggle and she continued to fight for the cause of women's liberation until her all too untimely death. I miss her, too.

319 Notes to pages 7-10 13 14 15 16

Morgentaler, [1988]. RCSW, 286-87 (emphasis added). Ibid., 371. Ibid., 372, citing Canadian Committee on Corrections, Report: Toward Unity, Criminal Justice and Corrections [Ouimet Report] (Ottawa: Queen's Printer 1969), 391.

17 KCSW, 373.

18 Ibid. Interestingly, following only the very briefest of discussions, the report does show some awareness of problems concerning sexual abuse and exploitation of young people and recommends that "the Criminal Code be amended to extend protection from sexual abuse to all young people, male and female, and protection to everyone from sexual exploitation either by false representation, use offeree, threat, or the abuse of authority" (374). 19 By this time, with the formation of organizations such as the National Action Committee (NAG) on the Status of Women and the National Association of Women and the Law, the movement was no longer "single-issue" oriented and had taken on more than one task at a time. NAC'S early focus was on public-sphere issues, women in the work force, and the economy, but by at least 1977-78 it had also taken up issues of violence against women, rape, and then pornography in particular, which grew out of the movement directly. 20 Another largely unsung heroine who was very active on this particular issue isjoanie Vance, who was the first national coordinator of the National Association of Rape Crisis Centres and who then, like so many of us, went on to law school. She now practices with the Public Interest Advocacy Centre in Vancouver. The first rape crisis centres opened in Vancouver and Toronto in 1973. 21 In 1986-87, the federal Department of Justice commissioned research designed to assess the impact of Bill C-127, to be carried out in six locations across Canada — Vancouver, Lethbridge, Winnipeg, Hamilton-Wentworth, one site in Quebec, and Fredericton-Saint John. The reports arising from these studies are now in the hands of the Justice Department but have not yet (1990) been released to the public. 22 R. v. Saulnier (1989), 48 c.c.c. (3d) 301, 89 N.S.R. (2d) 208 (C.A.). 23 Presents. 275 of the Criminal Code. 24 For a brief review of these problems, see Martin's Criminal Code, 1991, annotations to s. 275, 00366. 25 The phrase is Christine Boyle's; see Sexual Assault (Toronto: Carswell 1984), 54. 26 Re Seaboyer and Gayme and the Queen (1987), 37 c.c.c. (3d) 53, 58 C.R. (3d) 289, 61 O.R. (2d) 290 (C.A.). 27 R. v. Wald (1989), 47 c.c.c. (3d) 315, 68 C.R. (3d) 289, [1989] 3 W.W.R. 324 (Aha. C.A.).

320 Notes to pages 10-15 28 See Report of the Committee on Sexual Offences Against Children and Youths: Sexual Offences Against Children (Ottawa: Minister of Supply and Services Canada 1984), 175-93; and Lorenne M.G. Clark, "Feminist Perspectives on Violence Against Women and Children: Psychological, Social Service, and Criminal Justice Concerns," Canadian Journal of Women and the Law 3, no. 2 (1989-90): 420-31. 29 However, some very recent initiatives in this area perhaps justify some optimism that needed changes may be on the way. I am referring, in particular, to the formation of a Family Violence Court in Winnipeg, which is developing an integrated response to the problem, utilizing a team of specially trained judges and prosecutors. CHAPTER

TWO

1 My thanks go to Molly Wolf for her help in editing this text, prepared after the RCSW minutes were placed in the National Archives and therefore written without consultation of the minutes. 2 Resources for Feminist Research/Documentation sur la recherche feministe (RFR/ DRF) 17, no. 3 (1988): 3. 3 Ibid. 4 Diane Lamoureux, "De la quete de 1'argent de poche au renforcement de 1'Etat-Providence," RFR/'DRF 17, no. 3 (1988): 73. 5 Caroline Andrew, "Women and the Welfare State," in Revue canadienne de sciencepolitique 17, no. 4 (1984): 667-83. 6 Cerise Morris, "Determination and Thoroughness: The Movement for a Royal Commission on the Status of Women in Canada," Atlantis 5, no. 2 (1980): 1-21. 7 See Cerise Morris, "No More than Simple Justice: The RCSW and Social Change in Canada," Ph.D. thesis, McGill University, 1982; Monique Begin, "The Royal Commission on the Status of Women in Canada: Twenty Years Later," in Contemporary Women's Movement in North America, edited by David Flaherty and Constance Backhouse (Montreal: McGill-Queen's University Press); and Monique Begin, "Rewriting the Report of the Royal Commission on the Status of Women in Canada for 1990," paper presented to the CSAA annual meeting, Victoria, 1990. 8 See the work of Alain Touraine and Alberto Melucci, for example. 9 Nancy Adamson, Linda Briskin, and Margaret McPhail, Feminist Organizing for Change: The Contemporary Women's Movement in Canada (Toronto: Oxford University Press 1988). 10 This is well documented and analyzed in Christine Appelle, "The New Parliament of Women: A Study of the National Action Committee on the Status of Women," M.A. thesis, Carleton University 1987. The name "Parliament of Women" was the title given to the National Council of Women by Veronica Strong-Boag.

321 Notes to pages 17-29 i l l owe this idea to my friend and colleague Caroline Andrew. Sandra Burt hints at this hypothesis; see her chapter in Changing Patterns: Women in Canada, edited by Sandra Burt, Lorraine Code, and Lindsay Dorney (Toronto: McClelland and Stewart 1988), esp. 140. 12 Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Queen's Printer 1984). 13 Patricia Valentine, "Policy Implementation: The Royal Commission on the Status of Women in Canada," mimeo, Faculty of Nursing, University of Alberta, 1985. 14 Ibid., 20-1. 15 Micheline Beaudry, Les maisons defemmes battues au Quebec (Montreal: SaintMartin 1984). Translated into English under the title Battered Women (Montreal: Black Rose 1985). 16 Battered Women, 66. 17 Canada, House of Commons, Standing Committee on Health, Welfare, and Social Affairs, Wife Battering: Report on Violence in the Family (Ottawa: Queen's Printer 1982): 34. 18 Jan Barnsley, "Feminist Action, Institutional Reaction," RFR/DRF 17, no. 3 (1988): 18-21. 19 Virginia Woolf, Three Guineas (London: Hogarth 1938). 20 Drude Dahlerup, "From a Small to a Large Minority: Women in Scandinavian Politics," Scandinavian Political Studies 11, no. 4 (1988): 275-98. 21 Sandra Harding, "Feminisms Federated Against Patriarchy?", paper presented at the 14th World Congress of the International Political Science Association, Washington, D.C., 1988. 22 bell hooks, Feminist Theory: From Margin to Center (Boston: South End Press 1984). CHAPTER

THREE

1 I wish to express my appreciation to Brian Pearl for assistance in the preparation of this text. 2 Gillian Walker has observed: "The specific conjunction of the development of the women's movement and the political structures of government in Canada has produced a situation whereby much of the activity of the women's movement has been directed towards or funded by the state."Family Violence the Women's Movement: The Conceptual Politics of Struggle (Toronto: University of Toronto Press, 1990), 2 3 F. L. Paltiel, "The Changing Role of Women," paper prepared for the Research Conference on Women and Social Security, International Social Services Association, Vienna, 2-4 November 1972. See also F. L. Paltiel, "Day Care in Europe: The Scandinavian Experience," Labour Gazette 2 (July 1971). 4 The dense report and 167 recommendations were divided into five policy clusters - namely, economic participation of women; women in public life

322 Notes to pages 29-33

5

6 7 8

and the judicial process; education and training; family life and community services; and disadvantaged women (defined as the aged, immigrants, the mentally and physically handicapped, the geographically isolated, low-income women, women on welfare, transients, one-parent families, and Native women). See F. L. Paltiel, Status of Women In Canada, 1972: Report of the Coordinator Status of Women (Ottawa, 1972). At the end of 1972, the decision whether to remain and monitor implementation or to return to my home department was very painful. The stone-faced, incredulous reaction of an audience of European male gerontocratic heads of social security agencies to the report on my European study, which questioned their prevailing notions of entitlement, at a meeting of the International Social Services Association propelled me back to National Health and Welfare to question the "breadwinner/dependent" model underlying all of our social programs. The Social Security Review provided a major opportunity. Having changed the process, now was the time to change the paradigms. RCSW, xii. In those days, we were still doing empirical studies on why women work, mostly related to the labour-force status or presence of a husband. See Status of Women Canada, Fact Sheets (March 1990); Secretarty of State, "CEDAIR Second Report" (January 1988); Statistics Canada, Women in Canada: A Statistical Report, second edition (Ottawa, 1989); Health and Welfare Canada, Proceedings of the National Symposium on Changing Patterns of Health and Disease in Canadian Women (Ottawa: Minister of Supply and Services,

1989)9 Health and Welfare Canada, Annual Reports for 1981-82, 1982-83, 198384, 1985-86, 1986-87, and 1987-89; National Plan of Action, 1984-85: Towards Equality, International Decade for Women; Plan of Action, igSj-ic/go, Based on the Nairobi Forward-looking Strategies for the Advancement of Women to the Year 2000 (Ottawa: Office of the Senior Advisor, Status of Women). 10 A case study begging to be done is that on Canada's role in promoting gender equality in international agendas. 11 Speaking notes for the Hon. Perrin Realty, P.C., M.P., Minister of National Health and Welfare, 1989-90 annual meeting of the Canadian Association of Pediatric Hospitals, 3 October 1990, 21. 12 In 1988, 67 percent of mothers with children under sixteen were in the labour force. 13 RCSW, 270. 14 Status of Women Canada, Report of the Task Force on Child Care (Ottawa: Supply and Services Canada, 1986), 342. 15 RCSW, 411-12. 16 Paltiel, Status of Women, 29. 17 Status of Women Canada, Report, 373.

323 Notes to pages 33-44 18 Ibid., 331. 19 Abella, Equality In Employment, 192. 20 "Dimensions of Equality: A Federal Government Work Plan for Women," Annual Conference of First Ministers, Vancouver, B.C., 20-21 November 1986,44. 21 Canada, House of Commons, Sharing the Responsibility: Report of the Special Committee on Child Care (March 1987), 10.19. 22 Health and Welfare Canada, Status ofDaycare in Canada 19^9 (Ottawa: Supply and Services, 1990). 23 National Council of Welfare, Child Care: A Better Alternative (Ottawa: Supply and Services, 1988), 16. 24 "Integration of Work and Family Responsibilities: Report on Strategies," Annual Conference of First Ministers, Ottawa, 10 November 1989. 25 The "critical mass" cohort of female law graduates was able to influence public policy before it was able to affect legal and political practices because (we in) government legitimated their advocacy for reform. 26 F. L. Paltiel, "Shaping Futures For Women," Women's Studies International Quarterly 4, no. i (1981): 22. 27 F. L. Paltiel, "Wife Assault in Canada: From Closet to Public Policy," an address to the American Public Health Association, i loth Annual Meeting, Montreal, Que., 16 November 1982. 28 Health and Welfare Canada, Report of the Health and Welfare Task Force on Reproductive Health Activities and Concerns (Ottawa, 1982). 29 Office of the Senior Adviser Status of Women, Proceedings of the Colloquium on Adolescent Girl's Health (Ottawa: Health and Welfare Canada, 1985)30 Health and Welfare Canada, Proceedings of the National Symposium on Changing Patterns of Health and Disease in Canadian Women (Ottawa: Minister of Supply and Services, 1989). 31 T. Wong and K. Wilkins, "How Many Deaths from Major Chronic Diseases Could Be Prevented?", Chronic Diseases in Canada 11, no. 5: 73-76. 32 Health and Welfare Canada, National Alcohol and Other Drugs Survivors: Highlights Report, Health Promotion Directorate, Health Services and Promotion Branch. (Ottawa: Supply and Services Canada, 1990). 33 N. Cournoyea, "Speaking Notes for an Address to the 8th Circumpolar Health Conference," Whitehorse, Yukon, 20-25 May 1990. 34 RCSW, 309. 35 F. L. Paltiel, "Is Being Poor a Mental Health Hazard?", Women & Health 12, nos. 3/4 (1987): 189. 36 M. Gunderson and L. Muszynski, Women and Labour Market Poverty (Ottawa: Canadian Advisory Council on the Status of Women, 1990). 37 National Council of Welfare, Women and Poverty Revisited (Ottawa: Supply and Services Canada, 1990).

324 Notes to pages 44-65 38 Economic Council of Canada, Good Jobs, Bad Jobs: Employment in the Service Economy (Ottawa: Supply and Services Canada, 1990). 39 F. L. Paltiel and V. L. Rust, "Being Old and a Woman in Canada," Women Speaking (July-September 1974). 40 Although the Year itself was less than a full success, it was the prelude to a Decade that was truly revolutionary. 41 Federal grants and contributions to women's organizations is another topic worthy of case study that cannot be elaborated in this paper. 42 National Council of Welfare, Women and Poverty, 103. CHAPTER FIVE

1 Aboriginal Scholar at the University of Saskatchewan, Saskatoon, and member of the Indigenous Bar Association. I would like to acknowledge the support of the F. Therese Casgrain Foundation in the preparation of this article. 2 For collected poems and speeches, see Art Solomon, Songs for the People: Teachings on the Natural Way (Toronto: N.c. Press 1990). This excerpt from his poem, "The Woman's Part," is unpublished. 3 That is, it is conceptualized in a manner that situates men as the measure of all institutions and as the contributors to political life. See Alexander Passerin d'Entreves, The Notion of the State (Oxford: Clarendon Press 1967). 4 Jason Clay, "What's A Nation?" Mother Jones (November/December 1990): 28.

5 RCSW, ix. 6 Indian Act, R.s.c. 1985, c. 1-5, as am. R.S.C. 1985, c. 32 (ist Supp.), c. 27 (ad Supp.), s. 10 (Sched. item 13), c. 17 (4th Supp.), c. 43 (4th Supp.), c. 48 (4th Supp.). 7 See the papers by Wendy Moss and Teressa Nahanee in this book. For an overview of the issues raised in the literature on the Indian Act, see: Peter Kirby, "Marrying Out and Loss of Status: The Charter and the New Indian Act Legislation, "Journal of Law and Social Policy i (1985): 77; M.J.B.Jones, "Sexual Equality, the Constitution and Indian Status: A Comment on s. 12(1) (b) of the Indian Act," Windsor Year Book of Access to Justice 4 (1984): 48; Camille Jones,/'Towards Equal Rights and Amendment of Section 12(1) (b) of the Indian Act: A Post-Script to Lovelace v. Canada," Harvard Women's LawJournal^ (1985): 195; Doug Sanders, "Indian Women: A Brief History of their Roles and Rights," McGill Law Journal 21 (1975): 656; Doug Sanders, "Indian Status: A Women's Issue or an Indian Issue?", Canadian Native Law Reporter 3 (1984): 30; Doug Sanders, "The Rights of Aboriginal Peoples of Canada," Canadian Bar Review 61 (1983): 314 (focuses mainly on the Charter); Verna Kirkness, "Emerging Native Woman," Canadian Journal of Women and the Law 2 (1987): 408 (briefly discusses s.

325 Notes to pages 66-9 i2(i)(b) of the Indian Act); Michael McDonald, "Indian Status: Colonialism or Sexism," Canadian Community Law Journal 9 (1986): 23. 8 Mary Ellen Turpel, "Discrimination and the 1985 Amendments to the Indian Act: Full of Snares for Women," Rights and Freedoms (September 1987): 6. 9 RCSW, 237-38, 410. 10 For the perspectives of other women outside the dominant (white) society on the state and feminism, many of which were influential for me, see: Daiva Stasiulis, "Rainbow Feminism: Perspectives on Minority Women in Canada," RFR/DRF 16 (1987): 5; Himani Bannerji, "Introducing Racism: Notes Towards an Anti-Racist Feminism," RFR/DRF 16 (1987): 10; Judy Kadi, "Racism [of Mainstream Feminism] Reflected," Broadside?) (1987): 4; Caroline Ramazanoglu, "Ethnocentrism and Socialist-Feminist Theory: A Response to Barrett and Mclntosh," Feminist Review 22 (1986): 83; Kum-Kum Bhavnani and Margaret Coulson, "Transforming Socialist-Feminism: The Challenge of Racism," Feminist Review 23 (1986): 81; bell hooks, "Sisterhood: Political Solidarity Between Women," Feminist Review 23 (1986): 125; Hamida Kazi, "The Beginning of a Debate Long Due: Some Observations on 'Ethnocentrism and Socialist Feminist Theory'," Feminist Review 22 (1986): 87; Heidi Safia Mirza, "The Dilemma of Socialist Feminism: A Case for Black Feminism," Feminist Review 22 (1986): 103; Sue Lees, "Sex, Race and Culture: Feminism and the Limits of Cultural Pluralism," Feminist Review 22 (1986) 92; Michele Barrett and Mary Mclntosh, "Ethnocentrism and Socialist-Feminist Theory," Feminist Review 20 (1985): 23; Valerie Amos and Pratibha Parmar, "Challenging Imperial Feminism," Feminist Review 17 (1984) 3; Parita Trivedi, "To Deny our Fullness: Asian Women in the Making of History," Feminist Review 17 (1984): 37. 11 In the Mi'kmaq language, the term for equality means to bring one down to the level of other people. This is an interesting juxtaposition with Canadian legal formulations. 12 Osennontion and Skonaganleh: ra, "Our World," Canadian Woman Studies 10 (i98g)'-7> 1513 Ibid., 15.1 realize some scholars are suggesting that we move away from traditional concepts of equality as sameness. I am interested in this debate, although it seems largely academic at this point. See Joan W. Scott, "Deconstructing Equality Versus Difference: Or, the Uses of Poststructuralist Theory for Feminism," Feminist Studies 14 (1988): 33. 14 For further exploration, see Verna Kirkness, "Emerging Native Woman." 15 For an inside view of how this has affected one group of First Nations women, read the remarkable stories of the women of Tobique in Enough Is Enough: Aboriginal Women Speak Out, as told to Janet Silman (Toronto: The Women's Press 1987).

326 Notes to pages 70-4 16 Ibid. See in particular chapter three, "All For A Decent House," where the Tobique women share how this imprint affected their struggle to obtain housing on their reserve. 17 Osennontion and Skonaganleh: ra, "Our World," 13-14. 18 Women do, despite the influence of patriarchy and paternalism, run First Nations communities. They, for the most part, run the band offices, health programs, education boards, and other community-based institutions. 19 For another example of state violence against First Nations families, see Patricia A. Monture, "A Vicious Circle: Child Welfare and the First Nations," Canadian Journal of Women and the Law 3(1989): i. 20 For further discussion of this perspective, see Patricia A. Monture, "Ka-NinHeh-Gah-E-Sa-Nonh-Yah-Gah" ("Flint Woman"), Canadian Journal of Women and the Law 2 (1986): 159. 21 RCSW, xi.

22 Ibid., 217. 23 The background study on First Nations women commissioned for the Royal Commission was prepared by two non-Aboriginal persons, Julie Cruikshank and Jim Lotz, at the Canadian Research Centre for Anthropology (September 1968, 140 pages). It reveals little sensitivity to the different cultural perspective of First Nations women on the mandate of the Commission. 24 As did most First Nations cultures; see Martha Montour, "Iroquois Women's Rights with Respect to Matrimonial Property on Indian Reserves," Canadian Native Law Reporter4 (1987): i. 25 As Skonaganleh: ra, in "Our World," 16, suggests of the images White women who want to help us frequently impose upon us: "The 'others' have to start to think differently and they have to look in their own mirror, at their own selves, and their own baggage that they're carrying and where that came from. They should not look at a universal sisterhood, so much as we should be looking at creating a situation where all people of many colours can peacefully exist. I agree that we all have certain goals that we want out of life, one of which is peace in all of our relationships. However, we cannot have peace in our relationships if we don't have peace inside ourselves. We can't have peace inside ourselves if there is no credence or credibility given to the way that we define ourselves." 26 RCSW, 328-31. 27 In Derricksonv. Derrickson, [1986] i S.C.R. 285, the Supreme Court of Canada held that Part III (ss. 43 to 55) of the Family Relations Act of British Columbia dealing with the division of family assets did not apply to lands in a reserve held by an "Indian." First, the right to possession of lands on an "Indian" reserve is within exclusive federal jurisdiction, (s. 91 (24) of the Constitution Act, 1867). Second, even if s. 88 of the Indian Act applies to lands reserved for Indians, there is a direct conflict between the impugned

327 Notes to pages 74-5 provincial provisions and the provisions of the Indian Act; under the doctrine of paramountcy, the provincial provisions cannot apply. As there was no inconsistency between the provision for compensation in the provincial legislation and the Indian Act, the Court ordered compensation be paid in lieu of division of the property. Of course, compensation is meaningless given the economic status of our communities. In Paulv. Paul, [1985] i s.c.R. 306, the Supreme Court held that s. 77 of the Family Relations Act of British Columbia dealing with occupancy of the family residence did not apply to a matrimonial home located on an Indian reserve. The court stated this case was indistinguishable from Derrickson. For an analysis, see Mary Ellen Turpel, "Home/Land," Canadian Journal of Family Law 10 28 29 30

31 32

33

(1Q91): i?RCSW, 425-6 (emphasis added). This statement was contained in the separate submission of Commissioner Jacques Henripin. As quoted by bell hooks in Yearning: Race, Gender and Cultural Politics (Toronto: Between the Lines 1990), 15. For a good example of entering the debate as subjects, see Fran Sugar and Lana Fox, "Nistum Peyako Seht'wawin Iskwewak: Breaking Chains," Canadian Journal of Women and the Law 3(1989-1990): 465 (this was previously released as "Survey of Federally Sentenced Aboriginal Women in the Community," Appendix C to Creating Choices: The Report on the Task Force on Federally Sentenced Women (Ottawa 1990). Patricia A. Monture, "I Know My Name: A First Nations Woman Speaks," unpublished paper (1990). See the following: Marlee Kline, "Race, Racism and Feminist Legal Theory," Harvard Women's Law Journal 12 (1989): 115; Nitya Duclos, "Lessons of Difference: Feminist Theory on Cultural Diversity," Buffalo Law Review 38 (1990): 325; Angela Yvonne Davis, Women, Race and Class (New York: Random House, 1981) Jacinth Hebert, " 'Otherness' and the Black Woman," Canadian Journal of Women and the Law