Introduction
Gender equality is one of the most controversial and complicated issues that have plagued human societies for many years. In fact, the issue regarding gender equality has been an age-old problem that have prevailed even in the contemporary society. The problem in gender equality lies on the concept of equality itself, primarily because the concept of equality is too broad to be explicitly defined. The case of Stella Bliss, for example, is a manifestation that the concept of equality is subjective and depends on the prevailing perception on equality. According to the merits of the case, Stella Bliss, a Canadian woman, applied for Unemployment Insurance benefit when she left her work four days before giving birth. Such benefit, however, is only afforded to an employee who is compelled to quit work due to reasons other than pregnancy. It was clear, however, that Bliss’s reason for leaving work is due to her pregnancy, which is not covered by the Unemployment Insurance Act of 1971 (RCS Canada Supreme Court Reports, 1979, p. 184). Bliss’s application for the Unemployment Insurance was denied by the Commission and the Board of Referees, prompting her to challenge the decision by filing an appeal to the Umpire, citing the equality provision of the Canadian Bill of Rights. The Umpire ruled in favor of Bliss, but the Commission appealed the decision of the Umpire to the Federal Court of Appeals. After hearing the case, the Federal Court of Appeal overturned the decision of the Umpire and ruled that Bliss’s appeal would be dismissed. The basis of the Federal Court of Appeal’s decision is grounded on the reasoning that Bliss’s disqualification is not because of gender. Rather, she was disqualified from the Unemployment Insurance because she did not met the criteria set by law. According to the Federal Court of Appeals, if there is any manifestation of discrimination, such manifestation “is not created by legislation, but by nature” (RCS Canada Supreme Court Reports, 1979, p. 184). Bliss’s case is of particular importance because it offers a perspective of how formal equality can be a ground for discrimination and a barrier to achieving the ideal gender equality sought by women in society.
The concept of equality can be broadly categorized into two types: 1) formal equality and 2) substantive equality. Formal equality refers to the simplistic concept of equality wherein all people are considered equal regardless of sex, race or social status (Bakan, 1997, p. 68). This type of equality is sometimes referred to as ‘administrative equality’ as it requires nothing more than administering the existing laws equally to everyone (Bakan, 1997, p. 68). Bliss’s case is a perfect example of the realization of formal equality. As can be observed, the rule of law was applied equally regardless of gender and circumstances. Bliss’s argument regarding the ‘equality’ provision of the Canadian Bill of Rights, for instance, was also used against her by the Federal Court of Appeals when it interpreted the equality clause in the Bill of Rights under the context of formal equality arguing that the Bill of Rights guarantee that the law is equally applied to all, notwithstanding whether the person is male or female. The problem with formal equality, however, is it assumes that all people are ‘similarly situated,’ and tends to ignore the existing differences between groups and individuals (McPhedran, n.d., p. 194). Formal equality can be a barrier to achieving the ideal gender equality sought after by feminists. By ignoring that women have unique qualities and biological differences as compared to men. A justice system based on formal equality will further disadvantage women and other individuals who could not compete under their natural circumstances. A good analogy of how formal equality unwittingly promotes discrimination can be observed when assessing the ability of persons with disabilities as compared to normal persons in terms of opportunity. Unless the disadvantageous position of people with disabilities are considered, they do not stand a chance in terms of opportunity when they are up against people of normal stature. Similarly, if the unique qualities of women are not considered, such as their frail physical stature, their monthly menstrual period and their pregnancy, then women, as a group, would be severely disadvantaged.
Contrary to formal equality, many people are beginning to acknowledge that the more ideal form of equality is the one that acknowledges the differences and disadvantages of certain groups and individuals in creating a more equal or balanced society. This equality concept is also known as substantive equality. In the context of legislation, substantive equality refers to laws that “explicitly treat one group differently from others as a way of promoting equality” (Bakan, 1997, p. 307). Among the common examples of legislations that promote substantive equality are “progressive income tax, employment equity, affirmative action, and social welfare programs for the poor” among many others (Bakan, 1997, p. 307). Substantive equality is consistent with the theory of social justice promoted by the philosopher, John Rawls. Rawls, for instance, believe that the notion of justice is interrelated with fairness and not on formal equality (Rawls, 1999, p. 10). For Rawls, it is unfair, and therefore unjust, for the benefits and burdens of society to be distributed equally. Rather, the distribution of social burdens should be based on capability in a manner that is reasonable and fair (Rawls, 1999, p. 10). People could not be left to compete on their own as the weak will be further disadvantaged if they are not given assistance through state welfare and legislation. Under this assumption, substantive equality promotes an expansive state that proactively looks for the welfare of its citizens.
Equality Litigation and Social Change
The significance of Bliss’s case can be attributed to the social and political changes that happened in the aftermath. Although Bliss did not win her case, she became a symbol of feminist movement for substantial equality. As a result of Bliss’s litigation, major reforms were made to address the problem of gender equality in Canada. One of which is the incorporation of Section 15 to the Canadian Charter of Rights and Freedom. Under sub-section 2 of Section 15, the Charter mentions that the right to the equal protection and equal benefit of the law “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” (Penney Kome, 2016, p. 121). Section 15 is considered as a major victory in the fight for gender equality as it reflects the substantive equality, which is also the objective of the modern feminist movement in Canada. As observed by one scholar, “section 15 of the Charter deliberately ushered in important changes by broadening the measure and reach of equality rights with the aim of promoting and achieving substantive equality in Canada” (L’Heureux-Dube, 2006, p. 3).
Bliss’s case may also have contributed significantly to the social changes that is happening in Canada in terms of gender equality. One of the most significant change that can be observed, for instance, is in the perception of liberal feminism in contemporary Canadian society. The traditional feminists, for example, view liberal feminism under the context of formal equality and fought for the right of women to be recognized as man’s equal and thereby, entitled to the same rights and opportunities (Newman & White, 2012, p. 25). This traditional feminism lobbied for the removal of discriminatory laws which prohibits women to compete with men as well as lobbied for the conception of new laws that would ensure women’s equality, such as the right to vote and the right to pursue an education or career of choice among many others. From this classical view, the contemporary feminist in Canada is now trying to pursue a liberal feminism based on substantive equality. Modern feminists, for instance, acknowledge that “it is not enough to achieve formal equality; rather, the playing field needs to be made level first” (Newman & White, 2012, p. 28). Under this new perspective, Canadian women, particularly Canadian mothers, is more assured that the nation of Canada will not only protect their right, but will also proactively seek ways to promote their well-being through social welfare initiatives.
Conclusion
The Bliss v. Attorney General of Canada litigation did not end up favorably for the appellant, Stella Bliss, but it became a turning point for achieving a more substantial gender equality in Canada. Formal equality is the traditional perspective of most feminists and their proponents wherein the fight is to achieve equality in rights and opportunities legally and politically. Over the years, women have achieve a significant victory in this objective as their lobbying efforts have resulted to the removal of the legal and social barriers that discriminate against women. Formal equality, however, is not enough. As demonstrated by the landmark case of Stella Bliss, legislations that promotes formal equality have instead become an instrument of inequality and discrimination. Rather than provide women with a more leveled playing field wherein they can have access to opportunities, the laws that were supposedly designed to promote equality became major barriers to women’s welfare. Bliss’s case exposed these gaps, which, if not addressed, could become an impediment in achieving substantive equality. Formal equality is necessary, but it is not enough to make Canadian women, particularly mothers, achieve their full potential. The government, therefore, should advocate laws that acknowledges gender differences. Section 15 of the Canadian Charter is a significant legislation towards this goal. Such laws can pave the way for more women-friendly laws and social welfare initiatives, which would create an environment wherein women can truly compete with their male counterpart.
References
Bakan, J. (1997). Equality and the Liberal Form of Rights. In Just Words: Constitutional Rights and Social Wrongs (pp. 67–77). University of Toronto Press.
L’Heureux-Dube, C. (2006). Preface. In Making Equality Rights Real: Securing Substantive Equality Under the Charter (pp. 3–7). Toronto: Irwin Law.
McPhedran, M. (n.d.). Equality Rights and Justice. In Pursuing Justice: An Introduction to Justice Studies (pp. 188–214).
Newman, J., & White, L. (2012). Liberal Feminism: How do you define equality? In Women, Politics and Public Policy: The Political Struggles of Canadian Women, 2nd Ed. (pp. 25–28). Oxford University Press.
Penney Kome. (2016). What Section 15 Has Achieved. Retrieved from www.msvu.ca/atlantis
Rawls, J. (1999). A Theory of Justice. Harvard University Press.
RCS Canada Supreme Court Reports. (1979). Bliss v. Attorney General of Canada, 183–194.
