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Me Marie Hélène Dubé: Can the State free women from sexist religious norms?

This chapter will study this question in the particular context of the history of province of Quebec. After the Conquest, religion spared the French population from assimilation, but two centuries later, with the Quiet Revolution, Catholicism was stripped of its power over civil society. The rise of feminism in Quebec was closely tied to the emancipation from the Catholic religion. Now, the majority in Quebec defines itself by its attachment to the French language. Quebec’s approach to religious diversity is profoundly coloured by these major historical facts.

The number of Muslim immigrants in Quebec more than doubled from 2001 to 2011. Even if they account for only 3% of the population, their growing number coincided with Quebec society questioning what it is ready to accept as reasonable accommodations. The Bouchard-Taylor Commission consulted the population and made recommendations on how to frame a pluralistic society, based on the model of “interculturalism”. Since their 2008 report, Quebec governments attempted on two separate occasions to legislate with respect to the wearing of visible religious symbols, and failed at it.

This chapter focuses on the impact of Bill 60: The Charter affirming the values of state secularism, religious neutrality and equality between women and men, and providing a framework for accommodation requests could have had on Muslim women and women from other religious minorities. Notably, the model of strict secularism put forward in Bill 60 would have been in contradiction with jurisprudence on religious marriage contracts and religious divorces developed in Canada and Quebec to protect women’s interests. This leads to the conclusion that the existing configuration of Charter protections of religious freedom and of equality rights allows flexibility and permits the promotion of the rights of Québécois women who are from religious minorities.

However, the desire of the majority to ban the wearing of the hijab, niqab or any type of Muslim coverings rapidly became the main point of contention of the debate on Bill 60. This measure was presented as a means to protect society against the influence of religions and to free women oppressed by their faiths. From the intersectional perspective, Muslim women already face discrimination in the job market and any measure reducing their ability to work and to be financially independent increases their vulnerability. Also, women are empowered when they assert their right to decide for themselves what they will or will not wear, what religious belief they will or will not embrace. If a ban on the hijab and the chador would infringe on the rights guaranteed by the Canadian and Quebec Charters, a ban on the niqab and burqa may raise different concerns because they cover the face. Based on the jurisprudence of the Supreme Court, we conclude that a general prohibition would not pass constitutional muster, but that limitations are possible for identification purposes or when the nature of the interaction involves a significant need to see the face.

If the Charters of Rights and Freedoms bar the State from banning religious clothing perceived as a symbol of oppression of women, should we give up on any type of State intervention to free women from sexist religious norms? A policy of complete non-intervention would also put women’s individual rights and liberties at risk. Targeting the issues that are real roadblocks to the equality rights of religious Canadian women, as opposed to targeting the issues that are perceived by the majority as such, is essential if what we really want is to promote real equality between the sexes.

From Chapter 5: “Can the State Ban Religious Clothing Perceived as a Sexist Religious Norm?” from Gender, Sex and the Law in Canada, by Johanne Elizabeth O’Hanlon, (978-0-7798-6660-1) (© 2015 Thomson Reuters Canada Limited). Reproduced by permission of Carswell, a division of Thomson Reuters Canada Limited.