Feminist Legal Studies

About the Book

In the past few decades, gays and lesbians, along with their families, have become more visible members of Canadian society, enjoying increasing levels of legal recognition. In Transforming Law's Family, Fiona Kelly explores the complex issues encountered by planned lesbian families as they work to define their parental rights, roles, and family structures within the normatively heterosexual tenets of family law.

While Canadian courts recognize lesbian parenthood, they do so only to the degree that lesbian families are equivalent to heterosexual families in form and structure. Issues that are largely unique to planned lesbian families, such as the legal status of known sperm donors or non-biological mothers, remain undefined within the existing legal framework. Drawing on numerous interviews with lesbian mothers, Transforming Law's Family sheds light on changing definitions of family and suggests a model for law reform that allows for the legal recognition of alternative forms of parentage.

The first empirical study in Canada to address the legal dimensions of planned lesbian families, this book makes an important contribution to family law, queer studies, and law reform literature.

About the Author

Fiona Kelly is an Assistant Professor at the UBC Faculty of Law. Her academic interests include family law, tort law, children and the law, sexuality and the law, and feminist legal theory.

Murder, Medicine and Motherhood

by Emma Cunliffe

(Hart Publishing, 2011)

About the Book

Since the early 1990s, unexplained infant death has been reformulated as a criminal justice problem within many western societies. This shift has produced wrongful convictions in more than one jurisdiction. This book uses a detailed case study of the murder trial and appeals of Kathleen Folbigg to examine the pragmatics of proof beyond a reasonable doubt. It explores how legal process, medical knowledge and expectations of motherhood work together when a mother is charged with killing infants who have died in mysterious circumstances. The author argues that Folbigg, who remains in prison, was wrongly convicted.

The book also employs Folbigg's trial and appeals to consider what lessons courts have learned from prior wrongful convictions, such as those of Sally Clark and Angela Cannings. The author's research demonstrates that the Folbigg court was misled about the state of medical knowledge regarding infant death, and that the case proceeded on the incorrect assumption that behavioural and scientific evidence provided independent proofs of guilt. Individual chapters critically assess the relationships between medical research and expert testimony; the operation of unexamined cultural assumptions about good mothering; and the manner in which contested cases are reported by the press as overwhelming.

About the Author

Emma Cunliffe is an Assistant Professor at the UBC Faculty of Law. Her research focuses on scientific and behavioural evidence in the murder trials of mothers, fathers and caregivers who are accused of killing children; and more generally considers how courts work with expert witnesses.

Justice Bertha Wilson: One Woman's Difference

Edited by Kim Brooks

(Vancouver: UBC Press, 2009)

About the Book

Bertha Wilson's appointment as the first female justice of the Supreme Court of Canada in 1982 capped off a career of firsts. Wilson had been the first woman lawyer and partner at a prominent Toronto law firm and the first woman appointed to the Ontario Court of Appeal. Her death in 2007 has, in turn, provoked reflection on her contributions to law and the legal profession and the question, what difference do women judges make?

Justice Bertha Wilson examines Wilson's career through three distinct frames and from a wide range of feminist perspectives. In "Foundations" contributors evince Wilson's contributions to the building blocks of the legal system, including to property law, contract law, and fiduciary duties; in "Controversy" they examine Wilson's role in high-profile, controversial decisions on issues such as prostitution, criminal defence, and child custody. The final section, "Reflections," assesses Wilson's credentials as a feminist judge and her impact on the legal profession and judicial education.

This timely, evocative book highlights Wilson's contributions to the Canadian legal landscape and addresses many of the issues that Wilson grappled with in her life and career. A nuanced portrait of a complex woman, it will appeal to lawyers, judges, policy makers, academics, and anyone interested in law and women's contributions to Canadian society.

About the Editor

Kim Brooks, editor, is an associate professor and the H. Heward Stikeman Chair in the Law of Taxation in the Fculty of Law at McGill University.

About Some of the Contributors

Janine Benedet is an Associate Professor at the UBC Faculty of Law. Her primary research interest is sexual violence against women. Susan B. Boyd is Professor of Law and holds the Chair in Feminist Legal Studies at the University of British Columbia. She works in the fields of family law and feminist legal studies, and is currently focusing on the shifting conceptions of moterhood in family law in relation to the fathers' rights movement and expanding legal definitions of parenthood and familyy. Isabel Grant is a Professor at the UBC Faculty of Law. Her primary research interests include substantive criminal law and mental health law. Janis Sarra is a professor at the UBC Facultyof Law. Her areas of expertise are corporate law, financial services law, and insolvency law.

Reaction and Resistance: Feminism, Law and Social Change

Edited by Dorothy E. Chun, Susan B. Boyd and Hester Lessard

(Vancouver: UBC Press, 2007)

Reaction and Resistance (book cover)

About the Book

The image of “backlash” is pervasive in contemporary debates about the impact of second-wave feminism on law and policy, but systematic research on the subject is lacking. Reaction and Resistance addresses that gap. It analyzes late 20th-century responses to feminism, and asks: to what extent does the concept of backlash accurately explain reactions to feminism over time? The contributors apply multidisciplinary insights to analyze reaction and resistance to feminism in different areas of law and policy, including child custody, child poverty, sexual harassment, and sexual assault. Collectively, their studies paint a more complicated, often contradictory, picture of feminism, law, and social change than the popular image of backlash suggests. Reaction and Resistance offers feminists and other activists empirically grounded knowledge that can be used to develop legal and political strategies for change.

About the Authors

Dorothy E. Chunn is Professor of Sociology at Simon Fraser University. Susan B. Boyd is Professor of Law and holds the Chair in Feminist Legal Studies at the University of British Columbia. Hester Lessard is Associate Professor of Law at the University of Victoria Faculty of Law.

Poverty: Rights, Social Citizenship, and Legal Activism

Edited by Margot Young, Susan B. Boyd, Gwen Brodsky, and Shelagh Day

(Vancouver: UBC Press, 2007)

Poverty: Rights, Social Citizenship, and Legal Activism (book cover)

About the Book

Recent years have seen the retrenchment of Canadian social programs and the restructuring of the welfare state along neo-liberal lines. Social programs at both the federal and the provincial levels have been cut back, eliminated, or recast in exclusionary and punitive forms. Poverty: Rights, Social Citizenship, and Legal Activism responds to these changes by examining the ideas and practices of human rights, citizenship, legislation, and institution-building that are crucial to addressing poverty in this country.

The essays in this volume investigate current trends in social, political, and legal anti-poverty activism. They challenge prevailing assumptions about the role of governments and the methods of accountability in the field of social and economic justice. Through their analysis of rights advocacy and the interconnectedness of law and politics, the contributors also demonstrate that the fight for social and economic justice is vibrant and of critical importance.

About the Authors

Margot Young is an associate professor and Susan Boyd holds the Chair in Feminist Legal Studies in the Faculty of Law at the University of British Columbia. Gwen Brodsky and Shelagh Day are directors of the Poverty and Human Rights Centre in Vancouver.

Gendering Canada's Refugee Process

Catherine Dauvergne, Leonora C. Angeles, & Agnes Huang

(Ottawa: Status of Women Canada, 2006).

Gendering Canada's Refugee Process considers how, when and why gender matters in Canadian refugee determination. It investigates changes brought in by the 2002 Immigration and Refugee Protection Act (IRPA) and fostered by the change in political climate following the September 11, 2001, terrorist attacks in the United States.

The study begins at the point when an individual has first contact, as a refugee claimant, with the Canadian state, either at the border or at an office inside Canada. It considers each step in the process leading up to refugee determination. It also examines what happens to successful and unsuccessful claimants after a refugee determination.

The research focus is on gender from a feminist perspective. This means looking at aspects of the process that affect men and women differently and attempting to determine why this occurs. It also considers when layers of vulnerability overlap and intersect. In the refugee process, racialization, poverty, age, health and sexual identity are important vulnerabilities that intersect with, and are sometimes more important than, gender.

This research involved more than 100 interviews with people in the refugee process including community activists, refugee lawyers, refugee decision makers and others working with Canada's refugee determination system. The project also gathered all available sex-disaggregated statistics relevant to the experience of a person claiming status in Canada. Standards based on Canada's own law and policy commitments, as well as international human rights requirements were considered as a benchmark. The work aggregates and summarizes the myriad laws, policies, rules and regulations that frame the refugee experience in Canada.

Three governmental bodies are responsible for aspects of refugee determination in Canada: the Canadian Border Services Agency (CBSA, an agency of Public Safety and Emergency Preparedness Canada), Citizenship and Immigration Canada (CIC) and the Immigration and Refugee Board (IRB). This report considers each of these bodies and how they share responsibilities under the IRPA. Most of the recommendations are directed to one or more of these agencies.

The key themes are complexity, vulnerability and change. Complexity is highlighted, because the process of seeing a refugee claim through has many hurdles and potential pitfalls, and even a successful claim is not the end of one's encounters with Canadian immigration law. Vulnerability is vital, because even those who ultimately are found not to be refugees are vulnerable individuals with few options. Change is crucial, because there is unceasing incremental adjustment in this policy area.

While the commitment of the Immigration and Refugee Protection Act to gender-based analysis is an important landmark, its promise has not been reached. Efforts stop far short of the analysis point, and are, instead, in the planning phase at best. The IRB's guidelines on gender-related persecution have led to an important awareness at the IRB and elsewhere, but they address only one aspect of a long process. Alone, they are not enough to ensure equality in refugee determination.

The twinned buzz words "security" and "efficiency" have increased complexity and vulnerability, and ensured constant change. Despite several important advancements set out in the IRPA, people claiming refugee status in Canada are worse off now than they were before the new legislation was introduced in 2002. The report makes 79 recommendations.

The Unforgiven Sources of International Law:
Nation-building, Violence, and Gender in the West(ern)

by Ruth Buchanan and Rebecca Johnson
(INTERNATIONAL LAW: MODERN FEMINIST PERSPECTIVES,
Doris Buss and Ambreena Maji, eds., Oxford: Hart Publishing, Forthcoming)

Abstract:
New scholarship in international law has begun to explore the extent to which the discipline is grounded as deeply in the realms of subjectivity and imagination as in the fields of state systems, rationality and facts. In this vein, we take seriously the intersection of law and popular culture, and explore the narratives that locate and give meaning to international law. We turn to the Western genre as a source of insight about the nomos of law and of the international. The cinematic Western is one of our nomos' most prolific and powerful genres for the exploration of law's origins, nation, sovereignty, masculinity and violence. We offer a reading of Clint Eastwood's 1992 film Unforgiven in conjunction with a theoretical account of law's foundation, and contemporary debates over calls for intervention into the affairs of sovereign states. Unforgiven draws our attention to the many erasures still at work in our conceptions of law, violence and gender. It helps us to identify the exclusions operating at 'the source' in the stories we believe about the origins of law, whether in the mythic past of the American West, or in the mythic future of a 'liberated' Iraq.

Keywords: International law, justice, jurisprudence, gender, humanitarian intervention, popular culture

Child Custody, Law, and Women's Work

by Susan B. Boyd

(Toronto: Oxford University Press, 2003).

This book examines the transformation in custody law over the past two centuries. Focussing on the relationship between law and changing gender relations, it also shows that the debates for legislative changes expected in the near future are rooted in gender-based dynamics within the family and society. The author uses a framework that makes central the persisting power relations between men and women in the heterosexual family as well as dominant ideologies about motherhood, fatherhood, and family.

Elaborates on the relationship between laws on post-separation parenting and the way men's and women's work is valued differently in both the private and public spheres.

Establishes a historical and socio-economic context for understanding the current law reform debates on child custody.

Presents the topic from a gender-sensitive/feminist perspective.

Situates current law reform debates in their historical, socio-economic, and gendered context.

Discusses law reform changes and studies their impact in jurisdictions such as Australia and England.

"Is Governor General Adrienne Clarkson Right?: The Current State of Women in the Legal Profession"

Directed Research Essay by Andrea Zappavigna (LLB 2003), supervised by Prof. Susan Boyd, March 27, 2003.

On receiving an honorary degree from York University's Osgoode Hall Law School on February 27, 2003, Governor-General Adrienne Clarkson commented that the legal profession is "built by men, for men, in a man's world," and that the male-dominated rules of the legal world have "wrought havoc on women," obliging many to work equally hard for a fraction of what male colleagues make.

This essay tracks the development and status of women's role in the legal profession, and assesses whether women have become equal partners in the legal world, or whether, as Clarkson suggests, they still only occupy the margins of a male-dominated profession. The author argues that in order for women to begin to play an equal role in the profession, two things must change. Firstly, the legal profession must become willing to accommodate both women and men with family responsibilities. Secondly, a new social contract must be created whereby men and women equally share private sphere responsibilities. It is not until women and men have an equal amount of energy and time to devote to work outside the home that they can begin to become equal partners in the legal profession.

A hard copy is available at the Centre for Feminist Legal Studies, cfls@law.ubc.ca.

Gender on the Line: Technology, Restructuring and the Reorganization of Work in the Call Centre Industry

by Ruth Buchanan with Sarah Koch-Schulte,
(Ottawa: Status of Women Canada, 2000).

This report is a case study of the emerging call centre industry in Canada. Call centres are a relatively recent phenomenon in which firms provide services or market products over the telephone from remote locations. The report focuses on the impacts of economic restructuring on the labour market, and particularly the feminization of labour in Canada, with a view to providing input to policy-makers concerned about issues of women and work. It provides important information on the industry, such as the gender, racial and age composition of the call centre labour force, the ratio of full-time to part-time staff, and wage rates, thereby enabling the examination of economic development policies that target call centres. The report shows that work in call centres has emerged in most sites as unskilled, part-time and low-paid employment. It recommends that provinces should become more selective in their support of call centres as an employment creation strategy.

Status of Women Canada

Download or order (English)
Download or order (French)

Women, Tax and Social Programs: The Gendered Impact of Funding Social Programs through the Tax System

by Claire F.L. Young (Ottawa: Status of Women Canada, 2000).

This study examines the impact on women of funding social programs through the tax system. It does so by using the framework of tax expenditure analysis, which allows one to view any departure from the normative tax system as a spending measure. The analysis also takes into account the socio-economic realities of women's lives and concludes that many tax measures that are subsidies in respect of social programs do not benefit women to the same extent that they benefit men. Tax measures explored include the child care expense deduction, the Canada Child Tax Benefit, tax subsidies for and retirement saving, the disability tax credit and tax relief for caregivers. The conclusion is that in many instances women have less access to these tax subsidies and, often, the amount they receive is less than the amount that men receive. The study concludes with a list of issues that should be considered by those involved in the tax policy process in order to ensure that women are not disadvantaged in comparison to men when tax subsidies are used to fund social programs.

Status of Women Canada

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Download or order (French)

Child Custody Law Reform: Six Feminist Working Papers

Edited by Susan B. Boyd (Vancouver: Centre for Feminist Legal Studies, 2000). With papers by: Debra Burton, Karey Brooks, Elaine Cairns, Joan Braun, Violet Allard and Kimberley Sheepwash
(UBC LL.B. students during Spring 2000).

The papers were written for the use during the 2001 public consultations on reform of child custody access law. The federal government has undertaken to make recommendations for law reform in 2002. The book has three sections, with two papers in each section:

Part 1: Fathers' Rights Discourses -- critical analysis of the discourse of the fathers' rights movement, focusing in particular on the alleged implications of 'father absence' and on the impact of this discourse on lesbian motherhood.

Part 2: Allegations of Abuse and Parental Alienation -- examination of allegations of child sexual abuse in child custody proceedings, and of the invocation of 'parental alientation syndrome', which often occurs in response to allegations of child abuse.

Part 3: Law Reform Trends: Shared Parenting and Parenting Plans -- critical analysis of trends toward shared parenting in Canada and in other jurisdictions, such as Washington State. Links between joint custody and shared parenting are illuminated, demonstrating that shared parenting is not an entirely new concept. The effectiveness of the Parenting Act of Washington is also critically evaluated.

To order, send CA$15 cheque (plus shipping charges if mailed outside Canada) payable to:

Centre for Feminist Legal Studies
UBC Faculty of Law
1822 East Mall
Vancouver, BC
V6T 1Z1

Access to Justice Denied: Women and Legal Aid in BC

by Penny Bain, Shelley Chrest, and Marina Morrow (Vancouver: Women's Access to Legal Services, 2000).

This WALS report (funded by Status of Women Canada) identifies significant barriers to women’s access to justice due to reductions in provincial government funding of legal aid. The researchers interviewed approximately 60 advocates and women denied legal aid in four rural and urban BC communities.

Key findings of the report:

When women who cannot afford a lawyer are denied legal aid, their legal rights are compromised or denied;
The Legal Services Society is not providing BC women with the legal services mandated by the Legal Services Society Act;
Women who would otherwise qualify are denied services because of unreasonable coverage and financial eligibility rules;
The provincial government has the money to fund adequate legal aid from federal government payments and the the provincial sales tax on lawyers' accounts that was created to pay for legal aid;
The federal government has abdicated its responsibility to create national standards for access to justice and to ensure that funds transferred to the provinces are used in accordance with the Charter.

The report makes several recommendations, including that:

Flexibility be returned to the financial eligibility criteria for legal aid;
Expanded coverage be provided to cover variations in family matters;
The Legal Services Society debt be forgiven;
The provincial sales tax collected on lawyers' accounts be put in a dedicated fund for legal aid, along with all federal legal aid funding;
The Attorney General of BC and the federal Minister of Justice call a stakeholder meeting to discuss how to improve women's access to civil legal aid.

Download the report from the BC branch of the
Canadian Bar Association (CBABC)

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