10/15/2012 12:21 EDT | Updated 12/14/2012 05:12 EST

Appointing a Female Justice Won't Solve Women's Rights


With the recent appointment of Mr. Justice Richard Wagner to the Supreme Court of Canada less than two weeks ago, a backlash developed in the days that followed criticizing not Wagner himself but the fact that the Supreme Court's presence of women justices has now been weakened. With this admirable attempt to advocate for fairer gender representation on the nation's top court, I can't help but wonder if an emphasis on such direct representation distracts us from more effectively tackling systemic barriers to women's rights in our country.

Journalists immediately put Prime Minister Stephen Harper under the microscope for his nominee, noting that he "risked controversy" because, with Wagner, four out of five of Harper's total nominations have been men. Queen's University law professor Kathy Lahey agreed, arguing that Wagner's nomination "reduces the diversity and equity reflected in the court, and sends the message that the wisdom and expertise of women lawyers and judges is still not valued equally with that of men in 21st-century Canada."

A couple of days later, Montreal Gazette writer Janet Bagnall followed Lahey's lead with a column critical of the appointment. Bagnall's premise is that, with women now comprising three instead of four members on the nine-judge court, "the court [...] has moved into the comfort zone created when women make up a third of the workforce." This institutionalized "comfort zone" presupposes that women have achieved equality as long as they have reached that one-third threshold of direct representation, therefore trivializing women to ridicule if they make any further claims to equality.

This "comfort zone" to which Bagnall refers seems intuitive enough for me, and I can't imagine anyone being foolish enough to even attempt to dismiss its existence. What I find problematic, however, is Bagnall's mostly explicit argument that reversing the trend of the underrepresentation of women will necessarily solve systemic gender inequalities in Canada.

Of course it is true that, as Bagnall notes, the more "women joined the court" in recent decades, the "more rulings came down that took into account women's reality." However, we should be mindful that the direct representation of women isn't going to provide an inherent safeguard to women's rights. One only needs to look at the recent controversy with Rona Ambrose for evidence on this point. The federal MP who is also the status of women minister voted in favour of a private member's bill that would have effectively re-opened the abortion debate.

Now, it's important to point out that the counterargument to Bagnall's position has its own flaws. Bagnall cites Ottawa lawyer Eugene Meehan's comments as that counterargument, with Meehan implying that the judicial system has moved beyond gender by focusing instead on "talent, ability, and experience." Such a dismissive perspective is insulting; as if you could just pretend we have moved beyond gender. And here's where Bagnall's "comfort zone" is a useful point of reference.

But simply making the case that we can fight inequalities with greater representation of women is a Band-Aid solution, something to make ourselves "feel good." Let me make myself absolutely clear so as to avoid misunderstandings: the arguments put forth by both Bagnall and Lahey are important and necessary. But in their limited scope, they have an unintended consequence of creating a subtextual mindset that the only alternative to the one-third threshold in the fight for women's rights is greater ostensible direct recognition. What gets lost in this melee over identity politics is the reality that even if women (or any other minority group) have a formal majority in the Supreme Court, legislature buildings, or corporate boardrooms, that that majority by itself does nothing to fight systemic inequalities.

My point is thus that we should not just advocate for stronger women representation on our courts and in our legislatures, as equal attention needs to be paid to battles over women's rights that underlie this representation.