The Power of Perspectives

The Canadian Bar Association

Kerri A. Froc and Rebecca Bromwich

The Supreme Court, Justin Trudeau and “Diversity Firsts”

August 17 2016 17 August 2016

Justin Trudeau recently announced in a Globe and Mail op-ed, that he will usher in a new way of appointing Supreme Court of Canada judges.  It will emphasize the importance of the bench representing the “diversity of our great country.” This is so, he explains, because “a diverse bench brings different and valuable perspectives to the decision making process, whether informed by gender, ethnicity, personal history or the myriad other things that make us who we are.”

Including gender in this diversity mix intrigued us.  A female appointment would give the court a majority of women for the first time.  But, that is not exactly what Trudeau is promising – only that the federal government will incorporate gender into the diversity equation.

Within weeks of Trudeau’s op-ed, the Globe and Mail published another article, a profile of Supreme Court Justice Rosalie Abella.  In that article, it said that she was introduced before an important speech as the “first Jewish judge on the Supreme Court of Canada.”  She quickly made a correction that she was the first Jewish female judge” on the Supreme Court – the other “first” went to Bora Laskin, appointed by the Trudeau the elder.  Abella’s understanding of women’s religious identity served the Court well when it came to deciding Bruker v Marcovitz, 2007 SCC 54, [2007] 3 SCR 607. 

With Justice Abella penning the majority decision, it ruled that a husband’s failure to provide the wife with a Jewish religious divorce, in breach of their settlement agreement, was justiciable and not a violation of the husband’s freedom of religion.  She wrote, “The public interest in protecting equality rights, the dignity of Jewish women in their independent ability to divorce and remarry, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests and values that outweigh” the husband’s section 2(a) claim.  However, also stated, in essence, that women’s religious freedoms must be taken into consideration when interpreting the guarantee – the husband’s claim failed also because it would trench upon the wife’s religious freedom “to live her life fully as a Jewish woman in Canada.”

That is a potentially revolutionary insight, that rights must be gender-inclusive in interpretation.  To be sure, the Court may have made the same ruling without Justice Abella’s knowledge and doctrinal perspective enriching the analysis.  But it seems unlikely, considering that the Court has interpreted women’s Charter rights and freedoms without coming to this conclusion before (as in Native Women's Assn. of Canada v Canada, [1994] 3 SCR 627).  In fact, in Native Women’s Association, one basis for the Court’s rejecting that the claimant’s freedom of expression and equality rights had been violated by denying them a “seat at the table” at Federal-First Nations discussions surrounding the Charlottetown Accord, was that they failed to show that (primarily) male-led Indigenous organizations were incapable of representing the viewpoint of Indigenous women.  Left unexamined is the constitutional effect of not allowing women to speak for themselves.

We come back to the question of diversity, specifically in relation to another recent claim about gender and male representation in our branches of government.  A pair of authors have claimed Justin Trudeau himself is an example of another “diversity first” when it comes to gender.  A recent paper and op-ed by academics Kyle Kirkup and Jerald Sabin on masculinities in Canadian politics contended that Trudeau “introduced Canadians to a new form of masculinity in a party leader” during the 2015 leadership campaign, departing from the “traditional form of masculinity in Canadian politics — managerial, desexualized and stoic.” Their claim is that, even though yet another man was elected Prime Minister, Justin Trudeau represents a “subordinate masculinity” that bodes well politically for women.

We’re excited about Kirkup and Sabin’s work, which asks serious questions about politics and gender. However, we don’t agree that Justin Trudeau represents another “diversity first” through his form of masculinity, or that his gender presentation in and of itself will reap benefits for women or for increased representation of women.

Like he did by “wearing his father’s buckskin” at a 2016 summer event, we think Trudeau is following in his father’s well-trodden, masculine footsteps. He’s mirroring a decades-old family tradition of “bringing sexy back” by playing Canada’s romantic leading man and, no, that’s not necessarily great news for women seeking or holding leadership roles.

It’s important to consider the Canadian historical context. Looked at alongside “Trudeaumania” and the gender presentation of his father, Justin Trudeau’s gender performance fits within existing frames that implicitly raise barriers to women seeking to lead. The Canadian Parliament remains what feminist political scientists Linda Trimble and Jane Arscott once called a “testosterone tabernacle,” where sexual harassment is a serious problem, and some have estimated that women will not achieve representative parity for another 400 years.

Youthfulness and masculinity aren’t opposites. They’re linked. Both Trudeaus have derived power from being described as young, virile and cosmopolitan. When Pierre Trudeau ran for PM in 1968, media said he had a “boyish spirit,” was a “very attractive guy,” “youthful-looking,” “young-in-mind,” a bachelor, and “only” 48. The oft-used term to describe PET’s popularity, “Trudeaumania,” is a play on the phenomenon experienced by those four “boys” from Liverpool, “Beatlemania.” As well, both the “young” Pierre Trudeau and Justin Trudeau capitalized on their flamboyance. PET was known for the “flutter of his eyelashes” and the “flower behind his ear” — as a “swinger.” In the 1960s, the term was not as sexually loaded as it is today but it referred to a modern, sensual style.

There are lots of ways to showcase manliness. Both Trudeaus, father and son, often break into manly-man displays. Both were renowned for kissing willing young women on the campaign trail. Both Trudeaus have been known to break into the “peacock” balancing pose (a yoga handstand). And they found other ways to showcase their six pack abs and beefcake biceps: PET with his strong hold on his canoe paddle, and JT baring his chest on a Tofino beach this August.

The younger Trudeau doesn’t play a girly or “subordinate” masculinity. He’s drawing on a sexy one, like his father did, using virility to be a “hottie” for swooning voters, whether they are women at a charity fundraiser or male marchers in a Pride parade. Boy bands, to whom both Trudeaus have been likened, use masculine icons and symbols. From primatology, it is clear that for all higher primates, there are multiple paths to male dominance. Being sexually appealing through physical vigour is a common male path to power, whether it’s bonobos looking for mates or humans looking for votes.

To be clear, voters — either male or female — do not vote on gender presentation, including opposite-sex attractiveness, alone. But this factor plays a role. Who voters are and whose gaze is being drawn when performances of masculinity are conducted matters and merits consideration.  From a policy perspective, a leader’s gender performance says nothing in terms of being inclusive of women.  The first Trudeau government made some positive steps for women, such as the legalization of contraception and the institution of pay equity legislation, but women were woefully underrepresented in his Cabinet. Justin Trudeau has already achieved gender parity in Cabinet, but it remains to be seen whether and how this translates into women-friendly public policy (and Supreme Court appointments).

Accordingly, it’s timely and important to consider the significance of gender and gender presentation when it comes to matters of diversity.  However, when evaluating claims of “diversity firsts” and projections of their significance for women and other subordinated groups, one should pay close attention to historical and other contexts.  We are cheered that Justin Trudeau’s apparent preference is that the next appointment to the Supreme Court of Canada be a “visible-minority woman.”  Such an appointment (or the appointment of an Indigenous woman) would be a “diversity first” whose time has come.

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