Week #3: Generations of Feminist Legal Theory

Question 1

What are the elements of the Canadian legal system?

Answer 1

Supreme court
Common law tradition
Civil law systems

Question 2

What is the role of the supreme court

Answer 2

set the precedence for all other tribunals, cannot be appealed, decision is final

Question 3

What is common law tradition

Answer 3

judges have the power, discretion to create precedence that must be followed. Quebec is the excetion

Question 4

What are civil law systems

Answer 4

judges do not have authority outside parliament, legislation to make their own law or decision

Question 5

What is the relationship of courts in different provinces

Answer 5

-What happens in one province in Canada, does not apply to other provinces, unless it is in
the Supreme Courts.

-Decisions and precedents set in the Supreme Court of Canada apply to
the entire country

Question 6

Can supreme court change it’s precedence

Answer 6

• The Supreme Court does not need to always follow the precedence of the Supreme Court
  – Brookes and Bliss. The Supreme Court decided that Bliss was not a correct decision, and it is
  able to set a new precedent.

Question 7

How many judges are there in supreme court?

Answer 7

• 9 judges in the Supreme Court – they need to have a certain number from each province.
• The judges do not need to be unanimous in decisions

Question 8

What are the four decisions courts make

Answer 8

majority, concurring, dissenting, judiciary

Question 9

what is a majority decision

Answer 9

binding, legal force, the decision that sets the precedent

Question 10

what is a concurring decision

Answer 10

• the vote reaches the majority and they agree with the majority, but
  their reasoning for voting that way is for different reasons

Question 11

what is a dissenting decision?

Answer 11

• they count against the majority, they disagree, and make it fiercely
  known. The majority takes legal effect, however the dissent can be cited in other cases.

Question 12

what is a judiciary decision?

Answer 12

• (judge-made law) and legislature (parliament, written in the book).
• Legislature is
  usually written to put into code what is decided by the judiciary

Question 13

Explain Bliss v. Attorney General of Canada

Answer 13

1979
- Pregnant woman, fired during pregnancy. Wanted to claim unemployment insurance
benefit – however was not eligible due to pregnancy (only eligible to pregnancy).
- Had not worked long enough, therefore was not eligible for pregnancy benefits

Question 14

what did bliss argue

Answer 14

sex discrimination

Question 15

what was the result of bliss

Answer 15

lost at the SCC

Question 16

what was the courts opinion of bliss

Answer 16

Any issues that arise from being pregnant do not arise from being a woman,
but because you are pregnant. Decided by nature, not by the courts

Question 17

Explain Brooks

Answer 17

v. Canada Safeway
1989
- Pregnant woman and colleagues
- Discrimination. Insurance plan was broader for temporary disability compared to pregnancy
and related health complications.
- Differences in percentage of income able to be claimed, length of time that can be claimed.
- Two people could have the same injury, yet the one that was caused during pregnancy would receive less money (60% instead of 67%)

Question 18

What was the results of Brooks?

Answer 18

• Supreme Court reversed precedence of Bliss, Brookes won the Supreme Court claim.
• The Insurance Act was updated

Question 19

Explain Symes

Answer 19

v. Canada 1993
- Self employed lawyer, had been deducting childcare expenses as business expenses
- Child care expenses fit the definition of a business expense – essential expenses that must
be spent in order to carry out her job, and bring in income
- Provided plenty of evidence to suggest that women carry a significantly greater burden to
care for their children than her male colleagues.
- Court says that this social burden does not
equate to childcare and therefore she lost (although dissent)
find more resources at oneclass.com
find more resources at oneclass.com
- Issues lay in who she was being compared to: comparison to male businessman, or
compared to the average female co-worker. In all unfair treatment cases, the group of people that are being compared is an important point

Question 20

What are the waves of feminism?

Answer 20

First, Second, Third

Question 21

Explain first wave feminism

Answer 21

• 1790s - 1950s. Focused on women’s suffrage, similarity to men

Question 22

Explain second wave feminism

Answer 22

1960s - 1980s.
Focused on differences between men and women,
reproductive issues and private body, divorce law, women in the workplace.
- Women of colour, lesbians, those who did not fit the general mould began to splinter off

Question 23

what was the focus of first wave feminism

Answer 23

De jure inequality

- inequalities that were incorporated into the law eg. the inability to vote

Question 24

What was the inequality focus of second wave feminism?

Answer 24

De facto inequalities – those inequalities that were not written explicitly into law, but were
present in society, and the effects of written law

Question 25

Explain third wave feminism

Answer 25

1990s to the present. - Anti-essentialist, intersectional, various different causes coming together for social justice (disability rights, gay rights movements, classism, racism, womens rights etc).

Question 26

what is the focus of third wave feminism

Answer 26

International focus – more women worldwide. The identity, micro-politics of what is appropriate in the every day

Question 27

what is 3rd wave feminisms view of the law?

Answer 27

- Law is resistant to change, takes time and pressure to change, law is a stabilising force. One reason for the lag

Question 28

what are organic intellectuals

Answer 28

- those who bring with them with a built in, subjective perspective. - The reason for the lag between social and movement and law: students and the ones who grow up in the age take some time to become apart of system (students, professors, lawyers etc. ).

Question 29

What does Chamallas write

Answer 29

Three generations of feminist theory

Question 30

what is a generation

Answer 30

periods of intensive development in the fireld

Question 31

what does each generation do

Answer 31

respond to, and criticise its immediate predecessor | -each new strand of feminism is never completely replaced by newer approaches - foundational

Question 32

what are the generations

Answer 32

generation o equality, difference and of complex identities

Question 33

what is the dominant generation

Answer 33

throughout all generations equality thinking has dominated in courts and legislatures

Question 34

what is the generation of equality

Answer 34

- emphasis on women's similarity to men - dismantling the intricate system of sex-based legal distinctions - establish purportedly to protect women - argued that such protection was harmful as it restricted women's lives to the home and family

Question 35

what are the feminisms that arose through the generation of equality?

Answer 35

liberal feminism

Question 36

explain liberal feminism

Answer 36

- commitment to individual autonomy, equal freedoms for men and women. - Arguments do not challenge standards, rules or structures themselves, but focus on equal access - Did not require legal reform, but only needed incremental changes and expansion to make room for women - feminists described themselves as "women's rights advocates", "egalitarians" or "women's liberationists"

Question 37

Explain the generation of difference

Answer 37

1980s - Feminisation of poverty, gender gap in politics, "the social ceiling", working mother's "second shift" - Questioning the idea that gender was irrelevant and the ideal of a gender-blind society - Emphasised ways that men and women were different, but did not accept differences as biological, inherent or inalterable - Rather than requiring women to act more like men to achieve equality, the standards and norms needed changing - Based on women's distinctive needs - Issues involved pregnancy, sexual violence inc. rape, sexual harassment, prostitution, pornography - Less practically orientated than previous generation

Question 38

Explain dominance feminism

Answer 38

- emphasised difference in power between men and women - Argued that concepts such as privacy, objectivity, individual rights did little to increase women's power - Called for transformation of law to remove class-wide denomination of women - Legal system failed to protect women's bodily integrity - Drew links between portrayals of women as sex objects and widespread sexual violence and sex discrimination

Question 39

Explain cultural feminism

Answer 39

- recognize and celebrate women's differences from men - Also called relational feminism - Articulate the ways women often tended to approach problems, view the world, construct identity. -women's have a different voice, perspective - Concern for human relationships, caring, nurturing, empathy, connection - Liberal feminists tended to de-emphasis the mothering role, cultural feminists looked for ways this role could be supported

Question 40

explain jurisprudence

Answer 40

the legal system, the theory or philosophy of law  Generation of differences brought new offerings on sexuality, sexual violence. Introduced dual strategies to offer distinctively feminist course offerings but also incorporate into mainstream

Question 41

what are the big three strands of feminism

Answer 41

cultural, dominance and liberal called the big three

Question 42

explain the generation of complex identities

Answer 42

-1990's - women are a divers groupe - WOC and lesbians felt left out of feminist analysis emphasized dangers of essentialism - Emerged from premise that live experiences differ between women based on race, class, ethnicity, physical disability, immigration status, sexual orientation - Feminists became used to the idea that they are likely to disagree with each other, coalitions are necessary to produce legal reform

Question 43

What are feminisms in the generation of complex identities?

Answer 43

- intersectional, autonomy, sex-positive,-post-modern

Question 44

explain intersectional feminism

Answer 44

- avoiding the reduction of people's experience to only one aspect of personal identity or form of oppression - treating oppression in discrete boxes tended to obscure how other forms of discrimination may be mutually reinforcing

Question 45

explain autonomy feminism

Answer 45

- complex nature of personal identity, presented women simultaneously as both victims of oppression and agents of their own destiny - the focus on sexual violence in the previous generation, feminism had become fixated on victimization, did not properly account for women's ability to make choices, resist, contribute to cultural meaning attached to gender in society

Question 46

explain sex-positive feminism

Answer 46

sought to reclaim sex as being pleasurable for women, distance themselves from accounts depicting sex as dangerous for women

Question 47

explain post-modern feminism

Answer 47

- shift attention of scholars away from hierarchies (men-women to women-women). Target sex-based categories themselves, particularly the notion that only two sexes exist and are opposite - Understanding how individuals are condition to perform their gender in binary ways, socially constructed boundaries between the sexes - Objective for many postmodernists – resist the binary, address stigmatization of individuals who do not or will not conform

Question 48

what are the new three strands of feminism

Answer 48

intersectional, autonomy, post-modern

Question 49

what is the enemies list for legal feminists

Answer 49

- difference, subordination, devaluation - familiar enemies of equality essentialism, victimization, normalization - appeared as third generation feminist legal theories tried to become more inclusive

Question 50

explain difference enemy

Answer 50

– refers to disparate or differential treatment of the sexes. Commonly associated with formal sex-based or gender-based legal classifications. - Liberal feminists highly suspicious of any scheme that provides/ed a different set of rules for men and women

Question 51

explain subordination enemy

Answer 51

-measures injustice by whether a practice or policy serves to deepen power disparities between men and women. Closely linked to dominance feminism. - Does not compare individual, but rather male domains and female domains - Aimed at eliminating systematic patterns that produce structures of gender inequality

Question 52

explain devaluation

Answer 52

- the cultural assignment of a lower value to an entire group of people due to the cognitive association of particular activities eg. women in nursing, caretaking, etc. - can operate to construct a hierarchy, disadvantage individual members of priveleged groups eg. a male as a caretaker

Question 53

explain essentialism

Answer 53

- the tendency to presume commonalities among all women. | - sweeping statements and generalisation

Question 54

explain victimization

Answer 54

- objectification of women, perpetually vulnerable to violence or exploitation, lacking capacity for pleasure, self-direction, self-determination

Question 55

explain normalization

Answer 55

- discourses that privilege certain socially acceptable or normal practices or ideas, marginalising or discrediting those that do not fit the normal eg. marriage, caretaking, heterosexuality - Has the potential to backfire and reinforce, rather than subvert dominant ideologies

Question 56

what are developments inf feminism

Answer 56

- global feminist movement, expansion of scholarly articles to focus on ideas originating outside the US