UNB Law

Professor Kerri Froc’s research into Canadian federalism was recently published in Vickers, Grace and Collier’s, Handbook on Gender, Diversity and Federalism. Professor Froc’s chapter, Reproducing the masculine, neoliberal state: Canadian federalism doctrine and the judicial deregulation of reproductive technologies, examines the gendered workings of Canadian federalism.

According to Froc, there is a considerable lack of gender analysis in Canadian federalism jurisprudence. It is an area of the law where a feminist legal critique hasn't penetrated to a great extent.

“There is a myriad of these cases. The courts render their decisions as if there's no gendered impact at all. Gender isn't mentioned. Sex isn't mentioned. Women aren't particularly mentioned. It seems like a massive blind spot to me; you have all of these cases affecting women and no one, apart from a few feminist scholars, talks about it.”

Professor Froc sees the United States as having a much deeper and richer critical analysis of federalism from a gender perspective. Researchers like Judith Resnik and Catharine Mackinnon have found that the division of powers has designated women as a matter of local or state concern. The cases imply that women are relegated to the private sphere; men are in the public sphere when it comes to division of powers.

“There is something different going on in Canada—there seems to be a struggle for the soul of the federal state, but that soul is always male. Should we envision the state as embodying a paternalist masculinity? That position comes across very clearly with players like Québec.”

In her analysis, she notes that Québec is presenting itself as the paternalist state in its constitutional litigation, not looking at women as autonomous but as dependents. Legislation that protects women is a local and private matter, not a matter of national concern. As for the federal government, Froc sees it in its constitutional litigation as presenting the state as neo-liberal, providing women with superficial equality.

“The federal state is telling women to go out there and be just the same as men, have the same kinds of entitlements as market actors—but without looking to the state for any protections. Just like men, you can get out there and be a rational market actor and be responsible for yourself.” Therefore, it sees the division of powers as facilitating a smaller social welfare state, with, for instance, protective measures for women being confined to its criminal law powers or requiring carve-outs from provincial protective legislation for federal undertakings.

Froc notes that because of this complexity in how Canadian federalism jurisprudence is gendered, you're not really able to say that the state is sexist per se. At the same time, In the case of assisted human reproduction, which is the focus of her article, there is an obvious disproportionate impact on women due to the more invasive medical procedures involved.

“In the Assisted Human Reproduction Reference, the court said ‘no, most of this is provincial, it’s regulation of a medical practice.’ Therefore, they struck down almost the entire regime of regulating artificial human reproduction. It's the wild neo-liberal West out there. Women are being exploited when it comes to their reproductive capacity. There is, to a great extent, no regulation because it was supposed to be left up to the provinces as a result of the decision, and most provinces aren't doing anything or doing very little.”

For Froc, the gendered implications are clear. Much like how the federal government has to conduct a gender-based analysis when it proposes any legislation, courts should consider whether the federalism doctrine is impacting women as a particular group protected by Section 15. She also urges policy and decision-makers to think about federalism in a more contemporary context, making a deeper gender-based analysis standard practice.

“Look at the interprovincial pipeline. What the data shows is that when the pipeline comes to town, there is increased violence and abuse towards Indigenous women. When we're looking at whether the government has the power to build an inter-provincial pipeline and whether it must comply with provincial protective legislation, courts should be considering the gender implications. Gender and environmental impacts are often linked. With climate change, for instance, it's the poorest and most marginalized people that suffer, including Indigenous peoples and women. It's a diffuse problem that should be tackled under federalism doctrine, as in the Carbon Tax Reference.”

Professor Froc hopes that expanded research will expose the gendered workings of our federalism doctrine, opening the judicial imagination to other possibilities that take feminist analysis seriously, imagining that a state can be something other than male-dominated.

“Doctrine doesn't come from God, it's the stuff that judges make. As I often quote Jack Balkin, a constitutionalist from Yale, ‘it’s not that the framework of constitutional law precludes it, it's that judicial imagination precludes it.’ We all have a responsibility in interpreting our Constitution, and to bring interpretations along. Once society starts to consider arguments as reasonable. It's more and more likely that judges will consider them as matters of common sense. We saw this before, in cases like same-sex marriage.”

Professor Froc teaches constitutional law, advanced constitutional law, and administrative law at UNB. She was recently appointed Book Review Editor for the Canadian Journal of Women and the Law.