Feminist groups in court to have Bill 21 declared unconstitutional • Pivot

womens rights · rights and freedoms

Since Monday, the Quebec Court of Appeal has been hearing arguments relating to Bill 21. The Quebec Women’s Federation and the Women’s Legal Education and Action Fund propose three analytical criteria to demonstrate the unconstitutionality of the Act, which would infringe on the equality between the sexes provided for in the Canadian Charter of Rights and Freedoms.

The secularism lawor Bill 21, seeks to guarantee the secularism of the Quebec state by prohibiting the wearing of religious symbols by members of the state in positions of authority, as well as teachers in the public network.

Proposed by the CAQ government in March 2019, Bill 21 had largely polarized public and political opinion. Adopted under gag order in June 2019 with the support of the Parti Québécois, the law has been challenged in court.

The Court of Appeal of Quebec finally hears, since Monday, the arguments for and against the Act. Parties in favor of the Act invoke the importance of state neutrality, arguing that by treating all religions equally, the Act does not discriminate against any. But the opposition claims that the law would be unconstitutional because of its discriminatory nature, in particular against certain muslim women female teachers who are prohibited from wearing the hijab or niqab.

The Women’s Legal Education and Action Fund (FAEJ) and the Quebec Women’s Federation (FFQ) intervene in Court on a “friendly” basis, that is to say without being in support of any party or another one.

“Does the application of a clause that appears neutral on the face of it – prohibiting the wearing of religious symbols for certain professions – have a disproportionate impact on a group of women or a sub-group of women? If so, then the law is not neutral, it is discriminatory. »

Nathalie Leger, LEAF

The agencies jointly invoke thesection 28 of the Charter Canadian law, under which people of all genders should benefit equally from the rights and freedoms protected. The two organizations also argue that the notwithstanding clause of the Charter, which allows the exceptional infringement of certain rights and freedoms, could not be used to circumvent this article.


In July 2019, an education student wearing the hijab, supported by the National Council of Canadian Muslims and the Canadian Civil Liberties Association, lost her case before the Superior Court of Quebec. The judge had ruled that the Act did not contravene “the public interest”.

In September 2019, it was the English-Montreal School Board’s turn to challenge the Secularism Act, arguing that it would violate the right to education in the language of the linguistic minority.

In November 2019, the Autonomous Federation of Education, a teachers’ union, also opposed Bill 21, but a majority judgment was rendered and its application was maintained.

As of October 2020, the Superior Court is studying the case in depth, and the Mouvement laïque québécois is defending its legitimacy. In April 2021, the judge at the Superior Court ruled: Bill 21 violates certain fundamental rights, but must be maintained since the derogation clause was used. The Legault government will then appeal for judgment.

Discrimination that would be targeted

Section 28 of the Canadian Charter of Rights and Freedoms constitutionalizes equality between the sexes by requiring that “the rights and freedoms guaranteed by the Charter be implemented without discrimination between the sexes”.

The FFQ and the FAEJ appealed to article 28 in order to insist with the Court of Appeal that the law must not have a discriminatory effect between men and women.

“In the interpretation of Bill 21, one must ask: does the application of a clause which seems neutral at first glance – preventing the wearing of religious symbols for certain professions – have a disproportionate impact on a group of women or a subgroup of women? If so, then the law is not neutral, it is discriminatory”, explains Nathalie Léger, spokesperson for the initiative and member of the FAEJ.

For both organizations, discrimination is linked to the ability of Muslim women wearing the veil to practice their profession. The FAEJ and the FFQ jointly defend that it is not religion that makes it impossible to teach, but the law that has been put in place.

To illustrate this argument, the organizations offer the example of a Muslim woman who, in her beliefs, chooses not to wear the veil. This would not be discriminated against by law. “It is therefore false to say that it is religion that creates discrimination, because there is a certain level of choice, in religion,” explains the spokesperson. “The Law does not give any choice: it asks to deny one’s beliefs, or else to respect them but to no longer be able to work. It’s not a choice. »

The FAEJ and the FFQ defend that it is not religion that creates the impossibility of teaching, but the law that has been put in place.

Substantive equality as an analysis of discrimination

The analytical framework proposed by the FAEJ and the FFQ is in line with the interpretation of real equality of article 28. “There is a difference between formal and substantive equality. Formal equality means treating women and men exactly the same. Real equality is to ensure that the result allows equality,” explains Nathalie Léger.

“In the law, it is stipulated that ‘no one has the right to have religious symbols’. But we know that in some religions, women wear more than men. We know that some religions have more religious symbols than others. The organizations therefore defend that real equality is not respected, since certain groups are more affected than others by Bill 21.

“We must give substantial value to Article 28. Gender equality is a guaranteed right, which cannot be taken away”, defends the spokesperson for the initiative. “If the Court adopts our argumentit will have no choice but to declare the Act unconstitutional”.

Derogation clause?

However, to prevent this constitutional challenge, the Legault government had rightly invoked when the bill was tabled the “notwithstanding clause” of the Canadian Charter of Rights and Freedoms. This makes it possible to contravene certain rights and freedoms provided for in the Charter, in particular the rights to equality, freedom of expression and religion. The first day of the trial was also dedicated to this issue of the derogation clause.

But the FFQ and the FAEJ defend that the derogatory clause does not make it possible to circumvent article 28.

“Gender equality is a guaranteed right, which cannot be taken away. »

“To fully understand section 28, you have to understand its history and understand how it was integrated into the Charter,” explains Nathalie Léger. “Section 28 was not present at the beginning of the constitutional negotiations that led to the Charter. There was only section 15, which protects equality generally. It was when women realized that certain articles could infringe their rights that they wanted this double guarantee of gender equality. »

Article 28 thus acts as a complement to Article 15, having an “interpretation, confirmation and back-up” function. “Our claim is that Article 28, for the historical reasons for its existence, must apply despite the use of the derogation clause”, defends the spokesperson.

The debates in the Court of Appeal must last ten days, involving 17 parties to address a dozen issues, ranging from the legitimacy of the notwithstanding clause to the rights of linguistic minorities.

Feminist groups in court to have Bill 21 declared unconstitutional • Pivot