Reaction and resistance: feminism, law, and social change

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Reaction and Resistance

Law and Society Series W. Wesley Pue, General Editor The Law and Society Series explores law as a socially embedded phenomenon. It is premised on the understanding that the conventional division of law from society creates false dichotomies in thinking, scholarship, educational practice, and social life. Books in the series treat law and society as mutually constitutive and seek to bridge scholarship emerging from interdisciplinary engagement of law with disciplines such as politics, social theory, history, political economy, and gender studies. A list of the titles in this series appears at the end of this book.

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

Reaction and Resistance: Feminism, Law, and Social Change

UBCPRESS . Vancouver . Toronto

© UBC Press 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission of the publisher, or, in Canada, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), www.accesscopyright.ca. 15

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Printed in Canada on ancient-forest-free paper (100% post-consumer recycled) that is processed chlorine- and acid-free, with vegetable-based inks.

Library and Archives Canada Cataloguing in Publication Reaction and resistance : feminism, law, and social change / edited by Dorothy E. Chunn, Susan B. Boyd, and Hester Lessard. Includes bibliographical references and index. ISBN 978-0-7748-1411-9 1. Feminism – Canada. 2. Feminism – Political aspects – Canada. 3. Women – Legal status, laws, etc. – Canada. 4. Women – Government policy – Canada. 5. Canada – Social policy. 6. Social change – Canada. I. Chunn, Dorothy E. (Dorothy Ellen), 1943- II. Boyd, Susan B. III. Lessard, Hester, 1948HQ1155.R43 2007

305.420971

C2007-904283-X

Canada UBC Press gratefully acknowledges the Wnancial support for our publishing program of the Government of Canada through the Book Publishing Industry Development Program (BPIDP), and of the Canada Council for the Arts, and the British Columbia Arts Council. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada. UBC Press The University of British Columbia 2029 West Mall Vancouver, BC V6T 1Z2 604-822-5959 / Fax: 604-822-6083 www.ubcpress.ca

Contents

Acknowledgments / vii 1 Feminism, Law, and Social Change: An Overview / 1 Dorothy E. Chunn, Susan B. Boyd, and Hester Lessard PART 1 Media Representations of Feminism, Anti-Racism, and Their Counter-Movements 2 “Take It Easy Girls”: Feminism, Equality, and Social Change in the Media / 31 Dorothy E. Chunn 3 Virtual Backlash: Representations of Men’s “Rights” and Feminist “Wrongs” in Cyberspace / 65 Robert Menzies 4 Imperial Longings, Feminist Responses: Print Media and the Imagining of Nationhood after 9/11 / 98 Sunera Thobani PART 2

Sexual Terrains: Criminal Law and the Campus

5 The Discursive Disappearance of Sexualized Violence: Feminist Law Reform, Judicial Resistance, and Neo-Liberal Sexual Citizenship / 127 Lise Gotell 6 Backlash in the Academy: The Evolution of Campus Sexual Harassment Regimes / 164 Hester Lessard

PART 3

Familial Identities and Neo-Liberal Reform

7 Feminism, Fathers’ Rights, and Family Catastrophes: Parliamentary Discourses on Post-Separation Parenting, 1966-2003 / 198 Susan B. Boyd and Claire F.L. Young 8 Child-Centred Advocacy and the Invisibility of Women in Poverty Discourse and Social Policy / 229 Wanda Wiegers 9 Challenging Heteronormativity? Reaction and Resistance to the Legal Recognition of Same-Sex Partnerships / 262 Claire F.L. Young and Susan B. Boyd Contributors / 291 Index / 293

Acknowledgments

This book grew out of a series of conversations between Dorothy Chunn and Susan Boyd about the lack of any empirical ground for what seemed to be an increasing resistance to, and negative portrayal of, feminism. These conversations — which took place while we walked Vancouver’s Stanley Park seawall during the mid-1990s — in turn generated a Social Sciences and Humanities Research Council (SSHRC) project, which was funded by the Women and Social Change Strategic Grants Program. We are deeply thankful for the latter program and the funds it provided, without which we could not have started, much less completed, the project. Indeed, the subsequent cancellation of the program reinforced our sense of a deepening climate of public disaffection towards feminism and, perhaps ironically, solidiWed our conviction that our project’s focus on reaction and resistance to feminism, law, and social change was urgently needed. Near the end of the project, we held a workshop on “Feminism, Law, and Social Change: (Re)Action and Resistance” at the Peter Wall Institute for Advanced Studies at the University of British Columbia (UBC) on 7-8 May 2004. This workshop was supported by funding from the SSHRC project, the Peter Wall Institute for Advanced Studies (UBC), the Centre for Feminist Legal Studies (UBC), the OfWce of the Vice President (UBC), and the Feminist Institute for Studies on Law and Society at Simon Fraser University. We are grateful to all of our funders for the opportunity to broaden the scope of our investigation of reaction and resistance to feministinspired law reform and to invite a wider range of scholars to contribute to this book. The original SSHRC project’s principal investigator, Dorothy Chunn, and its co-investigators, Susan Boyd, Hester Lessard, Robert Menzies, and Claire Young, are also authors of chapters in the collection. The contributors to the collection represent a range of disciplinary and substantive interests but share a commitment to the analysis of law and society from feminist perspectives. All conceptualize law as a gendering practice, which varies depending on key factors such as race, class, sexual orientation, and disability. Collectively, we bring an interdisciplinary,

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Acknowledgments

historically informed approach to the analysis of feminism, law, and social change. While our respective chapters do not, indeed could not, deal with the complete range of issues that feminists have addressed, they instead provide exemplars, and we have attempted to build on and expand the existing work with the aim of synthesizing knowledge about the dynamics and impact of feminist (and other) social movements, especially in Canada. Although a separate study of reaction and resistance to feminism in Québec is certainly needed, some of our chapters do address discourses emanating from Québec. Many people have assisted us in bringing the book to completion. We thank Randy Schmidt of UBC Press for his sage advice and for steering the manuscript through the various steps in the publication process, and Wes Pue, editor of the now very substantial Law and Society series of which this book is a part. Our anonymous referees took considerable care to give us valuable feedback, which we have tried to respect in making our revisions. Over the years, many amazing research assistants have assisted us, including Angela Cameron, Emma Cunliffe, Renée Hoggard, Fiona Kelly, Krista Robson, Chantal Faucher, Diana Young, Olga Sanmiguel, Nikki Gershbain, and Keltie Mann. Special thanks are due to Shauna Labman, who assisted us with our proofreading, and to Stacy Belden, Sarah Munro, and Darcy Cullen for their editorial work. Finally, we thank our partners, families, and friends for their patience, encouragement, and support during the years we laboured on this project.

Reaction and Resistance

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1 Feminism, Law, and Social Change: An Overview Dorothy E. Chunn, Susan B. Boyd, and Hester Lessard

Legal strategies were central to the women’s movement and other social movements that began “organizing for change” in western democracies during the 1960s (Adamson, Briskin, and McPhail 1988). Since then, Canadian feminists have achieved a considerable reputation worldwide for having set in motion processes that ultimately effected “progressive” social change in their country. They challenged the paternalism of welfare state law, policy, and language and made the personal political in the realms of physical and sexual assault, sexual harassment, and domestic labour. During the early 1980s, feminists played a key role in entrenching strong sex equality guarantees in the Canadian Charter of Rights and Freedoms. Subsequently, they have pushed the limits of these guarantees in a manner that surpasses the jurisprudence in most other countries. Feminism may never have been “fashionable” (Coward 1999, 105), but it has produced some signiWcant results. While their assessments of the impact of reforms vary, many contemporary feminists share a fear that legal and policy reforms that have been achieved through signiWcant struggle are in danger. Women are “running hard to stand still” (Mossman 1994; Smart 1986) or even losing ground that has been hard won (Boyd 1997; Cossman and Fudge 2002). Moreover, the reforms have not beneWted all women equally – their impact has varied depending on a woman’s race, class, (dis)ability, or age. It seems clear, therefore, that feminists who want to maintain and build on past achievements in the face of concerted opposition must confront challenges to, and critiques of, the women’s movement as well as broader political and economic forces such as neo-conservatism and neo-liberalism. In Canada, as in other Western countries, increasingly negative assessments of the impact of second-wave feminism and other social movements such as anti-racism emerged with the ascendancy of neo-liberalism during the late twentieth century. In her book of the same name, Susan Faludi (1991) famously described this reaction and resistance to feminism as

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“backlash.”1 Troublingly, the recent critiques of feminism have emanated not only from the anti-feminists described by Lorna Erwin (1993), Erin Steuter (1992), and Veronica Strong-Boag (1996) but also from self-identiWed “liberated women” or former, “dissident,” or “faux feminists,” including Canadians such as Donna Laframboise (1996) (see also Sommers 1994).2 Several pervasive narratives characterize the so-called backlash against feminism in contemporary culture. One story tells us that far from helping women, feminism has made their lives worse by luring them out of “their proper sphere” into paid employment, thereby generating any number of social problems from family breakdown to youth crime (Parton 1991, A5; Howard and Tarrant 1997). Another story tells us that feminism has achieved its purpose and outlived its usefulness. Women have, it is suggested, now achieved equality with men, and we have entered an era of post-feminism (Paglia 1994; Roiphe 1993; Sommers 1994). A third, and related, narrative informs us that women and other subordinated groups have received more than is their due. It is time, therefore, to restore balance by attending to other casualties of social change (that is, white men) who have been denied or ignored because of the disproportionate attention feminism has demanded and received for “women’s issues” (Laframboise 1996; Sommers 2000; Nathanson and Young 2001, 2006). These narratives Xy in the face of extensive evidence that no fundamental social transformation in liberal democracies has been achieved since the 1960s, despite the extensive feminist engagement with law and policy in an effort to ensure that they respond to the needs of women and other subordinated groups. On the contrary, the gap between advantaged and disadvantaged has actually widened with the dismantling of Keynesian states and the growing hegemony of neo-liberalism (Bakker 1996; Boyd 1997; KingWsher 2002; Brodie 2002; Cossman and Fudge 2002). Moreover, although some women have achieved success in various Welds, many more have not, notably those disadvantaged by class, race, and disability. Yet the feminist counter-narratives showing that equality is still far from a reality for most women, and that women’s movements are needed now more than ever, have considerably less resonance in the current context. The overarching question addressed by the contributors to this volume is “why?” More speciWcally, why do the negative assessments of feminism, which are at odds with the still challenging realities of most women’s lives in the twenty-Wrst century, seem so compelling in contemporary neoliberal and neo-conservative states? To what extent does Faludi’s concept of backlash accurately capture or frame reaction and resistance to feminism since the 1960s? Were feminists and pro-feminists ever consistent agenda setters on legal and policy issues? If not, what explains the seemingly widespread perception that they were (and are)? If so, when and how have they exerted their agenda-setting inXuence?

Feminism, Law, and Social Change

These questions formed a common point of departure for this book’s authors. Our goal is to critically assess the validity of the backlash narratives through case studies that explore the extent of feminist inXuence on law and policy during a period of social (re)formation. Our shared focus is on the responses to, and the outcomes of, feminist engagement in various sites of struggle during the late twentieth and/or early twentyWrst centuries in Canada. Much contemporary discussion of backlash in the literature as well as in popular culture is based on individuals’ personal accounts, for example, the backlash against Sunera Thobani (2002) after her post-9/11 speeches or accounts of backlash against individuals such as former Supreme Court of Canada justice Claire L’Heureux-Dubé (Lessard 2004a; McIntyre 2004; Backhouse 2003). Backlash is also often analyzed within discrete institutional sites such as the family, law, universities, or the media. This volume adds another dimension by examining the relationship between feminism, law, and social change in different sites over time, with the aim of deepening the understanding of how feminism as a political force is currently positioned and portrayed. Accordingly, all of the authors interrogate the concept of backlash and investigate the extent to which backlash narratives have fueled reaction and, perhaps more importantly, resistance to feminist attempts to shape Canadian law and policy. Some (Susan Boyd and Claire Young, Dorothy Chunn, Hester Lessard, and Wanda Wiegers) take a longitudinal approach, starting from 1967 when the Royal Commission on the Status of Women in Canada (1970) was established. Others (Claire Young and Susan Boyd, Robert Menzies, Sunera Thobani, and Lise Gotell) focus their analyses on the late twentieth century and into the new millennium. Some examine competing conceptions and perceptions of feminism, law, and social change held by feminists/women and their critics in areas of law and policy such as child custody, child support, sexual harassment, and sexual assault, where feminist-inspired reforms have generated considerable controversy in both academic and popular culture. Others focus on the role of feminists and the relationship of feminism to the struggles of other social movements (for example, anti-racist, gay/lesbian, and anti-poverty) and counter-movements such as the anti-Muslim, pro-family, and fathers’ rights movements. Although their substantive exemplars are diverse, the contributors address similar questions about how legal and policy changes, or proposed changes, have been perceived and (re)presented over time in a number of institutional sites – courts, legislatures, the academy, mainstream media, and the Internet. What emerges is a longitudinal picture of socio-legal reform and social change that is in a number of ways more complex, even contradictory, than would be evident in any single study. First, and perhaps most signiWcantly, it seems clear that some feminist critiques of Faludi’s concept of backlash, which we discuss later in this chapter, have merit. This

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book demonstrates that reaction and resistance to feminism are neither homogeneous nor identical across all institutions and all areas of law and policy. However, our studies also suggest that resistance to feministinspired change is manifest in most periods – some more than others – and that a historically and culturally contextualized concept of backlash offers considerable explanatory potential. Second, the chapters highlight the tangled relationship between reform and social change in liberal states. While they never controlled the agendasetting process, feminists have been active and inXuential to varying degrees in proposing and shaping socio-legal reforms from the 1960s to the present. However, the broader social and economic forces represented by neoconservatism and neo-liberalism have an important mediating inXuence on the impact that feminism can achieve. Many law reforms that were inspired by feminism proceeded during a period that witnessed the rise of neo-liberalism and privatization, accompanied by a renewed emphasis on the rational liberal individual, choice, contract, and individual responsibility. This neo-liberal individual ostensibly has no gender, and, as a result, social justice initiatives for women can be jettisoned. What this really means is that men’s still more dominant positions are empowered to some degree, while women’s interests are rendered increasingly invisible. As Robert Connell (2005, 1815) has argued, although explicit backlash movements may not generally have had a great deal of inXuence, neo-liberalism has been very important in defending gender inequality. In this introductory chapter, we preface the discussion of our general Wndings about resistance and reform with a review of the feminist debates and critiques of the “backlash” construct. We then expand upon the book’s themes of social change, resistance, and reform by discussing the respective relationships between, Wrst, resistance and social change and, second, reform and social change. The section on resistance and social change highlights the heterogeneous character of feminism and other social movements, the complexity of their relations with counter-movements, and, importantly, the tensions and resonances between these various movements and the larger currents of neo-conservatism and neo-liberalism. The section on reform and social change shifts focus from intra- and intergroup politics to the nexus between feminist political activism and law and policy reform and demonstrates that the strategic implications for feminism of engaging in law and policy discourses are complex and often impossible to predict. We conclude by outlining the book’s organization and brieXy identifying what the research studies in this book reveal. The “Backlash” Debates Canadian feminists identiWed the phenomenon of backlash at least as early as the 1980s (for example, Wilson 1982, 129-30). However, American


author Susan Faludi (1991) popularized the concept in her widely read book describing and analyzing what she characterized as a “Xare up” of “fear and loathing of feminism” in America during the 1980s (xix). In Faludi’s view, pervasive misogyny has always been present as a background feature in America. However, she posits that this generalized misogyny takes the much more virulent and acute form of a backlash at those historical junctures when women are poised to make real gains in social and political life (46). Furthermore, despite an unending array of different forms and expressions, the fundamental direction of the backlash is monotonously consistent across time: “to push women back into their ‘acceptable’ roles – whether as Daddy’s girl or Xuttery romantic, active nester or passive love object” (xxii). Faludi refers to numerous ways in which women’s social and political power seemed to be consolidating and expanding in early 1980s America – for example, the development for the Wrst time of a voting gap between women and men (61) – and argues that these and other real or imagined gains sparked a version of the masculinity crisis that returns with each backlash. Faludi believes in progress but suggests that “American women’s progress might look more like a corkscrew tilted slightly to one side, its loops inching closer to the line of freedom with the passage of time” (46-47). The turns of the spiral represent the ebb and Xow of progress and backlash. Faludi posits that there have been four such turns in America, starting with the mid-nineteenth-century struggles for women’s rights and ending with the gains achieved by the 1970s women’s movement “on the twin fronts of employment and fertility” (55). For these reasons, we ended up with the backlash in the 1980s. Sylvia Walby (1997) endorses Faludi’s overarching view of historical progress towards women’s full equality and the periodic eruption of backlash – at least at a general level. For Walby, it is crucially important to give more prominence to the “historical signiWcance of backlash” (165). Otherwise, the intermittent nature of feminism’s successes tends to be blamed on feminists themselves. Walby canvasses the various explanations for the demise of Wrst-wave feminism in the late nineteenth and early twentieth centuries: that the feminist movement was badly organized and bitterly divided or that key activists sold out or were co-opted. In addition, she points out that by far the most common explanation for the disappearance of Wrst-wave feminism is its success, namely that the movement disbanded because it had achieved its objectives (159-61). All such accounts, she argues, distort history by failing to give proper weight to, if not erasing, the ferocious attacks that stopped Wrst-wave feminism in its tracks and drove it underground. The scholarly silences around anti-feminist crusades also concern Veronica Strong-Boag (1996). Writing in a Canadian context, Strong-Boag

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observes that “attacks on feminism have so far received relatively little scholarly attention” (3). She starts the “substantial task” of Wlling the gap by comparing two generations of English-Canadian misogynists, the Wrstwave anti-feminists of the Victorian era and the late-twentieth-century crusaders for patriarchy. Strong-Boag Wnds, like Faludi, that the anti-feminist backlash at these two different historical junctures takes the form of a masculinity crisis. As she puts it, “[d]isorderly women threaten the male identity, rendering it essentially problematic, and thus undermine the foundations of civil society” (6). Indeed, her two generations of anti-feminists adhere to essentially the same patriarchal vision of naturally dependent and therefore subordinate women performing reproductive roles within the domestic sphere. The main difference is that where the earlier generation saw a feminist threat to that vision on the horizon, their successors warn that “powerful feminist agitators” are poised to take over and destroy “patriarchal civilization” (21). The historical consistency portrayed by Faludi and Strong-Boag is, however, disputed by Walby on one front, speciWcally, Faludi’s assumption that the content of backlash is essentially unvaried across different jurisdictions. Although Walby (1997, 156) asserts that feminism has enough commonality across differences of “nation, ethnic group, social class, and time” to be declared a “continuing tradition,” she argues that one must be attentive nonetheless to signiWcant differences in experience. By comparing UK and US experiences of backlash against feminism in the 1980s, she refutes Faludi’s argument that those experiences have been essentially similar (16364). In the United States, the impetus fueling backlash may have been a version of private patriarchy, namely a desire to “get women back in the home” and into primarily unpaid reproductive roles. In the United Kingdom, on the other hand, resistance more often took the form of public patriarchy, namely the slashing of welfare regimes predominantly used by women, accompanied by the encouragement of women to engage in paid work but on signiWcantly more disadvantageous terms than men (164). Adding another layer of nuance, Lynne Segal (1999) suggests that a dichotomous, class-based approach may actually have been operating, under which some (usually more afXuent) women were encouraged to take up full-time reproductive work while others (typically mothers on social assistance) were pushed into paid work or exhorted to marry the fathers of their children. The studies in this book demonstrate that both models are present in the Canadian context (Wiegers, this volume; Menzies, this volume). Walby’s arguments for retaining the backlash metaphor while remaining sensitive to historical, social, and cultural complexities are rooted in a commitment to taking seriously both women’s history and patriarchal power. Walby explicitly engages with the assumptions about gender, history, and power that remain submerged or under-theorized in Faludi’s book.


Indeed, much of the scholarly work done by feminists on backlash at some point engages with the question of the relationship between backlash and the wider patterns of power and privilege. For example, in their study of what they term “organized anti-feminism” or “countermovements,” Janet Saltzman Chafetz and Anthony Gary Dworkin (1987, 35) assert that “countermovements are proinstitutional in character, that is, supportive of the establishment and the status quo or status quo ante.” Writing at a later date, Ann E. Cudd (2002) grapples more directly with the challenge of distinguishing between progressive and reactionary social movements in order to sort out which perspective represents social change and which represents backlash. Cudd employs the concept of oppression to do this sorting much in the way Walby uses the concept of patriarchal power. By mapping historical struggles onto a relatively stable set of power relations, both Cudd and Walby can then make the argument that backlash – the conservative, reactionary side of the power struggle – needs to be closely examined and theorized by feminists. Other feminists are less convinced of the usefulness of the backlash metaphor. Some urge a much more cautious and limited use while others reject it altogether, Wnding it dangerous and disempowering. Janice Newson (1993, 93), for example, wants to “eliminate the use of the word ‘backlash’ as a metaphorical account of resistance and opposition to women’s efforts to advance in society.” She takes aim at the way in which the metaphor disempowers women, forcing us to construct ourselves as victims, without agency, caught up in the forces of history, and to defend the “ground which we have already won” rather than staying focused on our own forward motion and agency (96). Like Walby, Cudd, and StrongBoag, Newson takes seriously the notion that history reXects a long struggle between women’s demands for equality and patriarchal resistance, but she Wnds that the backlash metaphor simpliWes the relation between progress and resistance, with disastrous consequences for women. Not only does a focus on backlash distract women from their own momentum and allow the terms of struggle to be set by the forces of patriarchal conservatism, but it also constructs social relations that privilege “male power and male authority” as the “regime of rationality” (94; see also Smith 1992, 208). In a similar vein, Hester Lessard (1999) analyzes the way in which the backlash metaphor reinforces the “regime of rationality” within the legal discourse of sexual assault. Parminder Bhachu (1997), like Newson, objects to the “victimology” underlying the backlash metaphor. However, whereas Newson focuses on how the implicit construction of women as victims shapes the Xows of power between women and men to the detriment of women, Bhachu sees the backlash metaphor as part of the “cultural and symbolic economies” of dominant, white, Western feminisms (187). The Xows of power between

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dominant and marginalized feminisms are her main concern. Bhachu acknowledges that the “victimology” agenda has produced much valuable work on the various dimensions of cultural, social, and economic oppression experienced by women of colour and, in particular, by the British-Asian women who are the subject of her study. However, she argues forcefully that certain vigilant “feminist gatekeepers” of simplistic models of patriarchal oppression have never provided space for the multiplicity of agencies and innovative production of new cultural forms by diasporic Asian women (189). In this volume, Sunera Thobani offers a similar critique of the ways in which the concept of backlash fails to explain the antiIslamism that dominates print media reporting in Canada of the 9/11 events and the subsequent “war on terrorism.” Bhachu’s general claim concerning the exclusionary impacts of the backlash metaphor Wnds some support in a study by Mary Hawkesworth (1997), who wants to complicate the “feminist” part of the backlash equation by recognizing that there are a multiplicity of feminisms, while leaving the metaphor itself unexamined. To this extent, her project Wts with Walby’s goal of illuminating the multiplicity of patriarchies. Both aim to bring a more nuanced and complex understanding of historical, cultural, and social diversity to the overly simpliWed, but otherwise useful, backlash narrative. In canvassing a range of feminist views on a purported backlash against afWrmative action in America, Hawkesworth observes that from the black feminist standpoint, there is no backlash. Rather, “[w]hat appears so clearly to be ‘backlash’ from a white feminist standpoint surfaces within this [black feminist] frame as perpetuation and consolidation of white privilege, a prophylactic against any systemic gains for African Americans” (146). The objections to the backlash metaphor raised by Newson, Bhachu, and the American feminists of colour referred to by Hawkesworth, as well as Thobani (this volume), are reiterated and developed into a broader critique by Davina Cooper (1997) in her study of the efforts of the New Christian Right in Britain in the late 1980s and 1990s to re-insert Christianity at the centre of what it viewed to be a secular, multicultural school system. Echoing Newson, she observes that “Wxating on backlash can lead to a political activism obsessed with the forces of reaction” (57). In addition, she analyzes two signiWcant distortions generated by the backlash narrative of historical change. The Wrst is the implication that conservative forces draw resources from some source external to their engagement with progressive forces (54). Cooper counters that typically both progressive and conservative forces draw resources from each other.3 The second distortion is the implication that the opposing forces of change and resistance that constitute the backlash paradigm are primarily, if not exclusively, motivated by a competition with each other for dominance. In other words, the backlash narrative, with its lock step, “push me pull you”


account of social change, misrepresents the complexity of political motivation. Cooper argues for a more contingent, complicated, and open-ended understanding of political motivation “as a discursive effect of a complex range of ongoing socio-economic, cultural, and political processes” (55). Cooper’s critique of the backlash metaphor is rooted in a more fundamental quarrel with the assumption that historical change unfolds in a three-part chronological sequence: a period of equilibrium, followed by a period of disruption during which radical forces triumph in certain areas, and ending with the backlash period during which reactionary forces mobilize against the perceived imbalance. This model of change tends to reinforce a liberal dislike of radicalism that is typically cast in the language of the threat to democracy and rule of law posed by political agendas that move too fast and stray too far from popular consensus (56). Working within a post-Foucauldian understanding of power, Cooper is uncomfortable with an account of social change that “deploys a zero-sum notion of power, emphasizes agency, and depicts history as periods of reaction parasitically contingent on epochs of change” (45). The strategic dangers for progressive social movements that attend an uncritical reliance on the backlash framework include not only allowing conservative forces to set the terms and boundaries of political struggle but also failing to realize that a more complex set of social processes may overtake or render those forces irrelevant (54 and 57). Didi Herman (1997) launches a similar critique of backlash in her study of the anti-gay and lesbian politics of the Christian Right in America, rejecting the backlash construct on both theoretical and strategic grounds. Perhaps referring to Faludi’s tilted corkscrew image of American women’s progress towards freedom, Herman asserts that “it may be more useful to conceptualize social movements as Xuid, dynamic, contradictory, and contingent rather than simply as forces meeting counterforces in the evolutionary spiral for supremacy” (66). Herman, like Newson and Bhachu, is impatient with the simpliWcations of the victim/perpetrator dyad that fuels the backlash story, arguing that the lesbian and gay movement can just as easily be portrayed as the force that is reacting against heterosexual dominance and the Christian Right as the “establishment ‘victim’” (65). Just as Bhachu argues that the assigned role of victim to women elides agency and differences among women, Herman argues that the assigned role of perpetrator elides the extent to which the Christian Right is “riven with a matrix of Wssures” (66). Furthermore, Herman observes that the Christian Right can be seen as “progressive” in its aims, seeking to shift society towards a utopian future – the reign of Christ on Earth rather than the return to a golden age (66 and 69). Like Cooper, Herman is deeply concerned by the strategic missteps that Xow from the over-simpliWcations underpinning the backlash construct, in particular, the failure to assess

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accurately the breadth and strength of a movement such as the Christian Right. The rejection by these authors of the backlash construct is rooted in their theoretical commitments to a Foucauldian-derived conception of power as dispersed, decentred, Xuid, and relational. In contrast, Chafetz and Dworkin, Walby, Strong-Boag, Newson, and Cudd all rely in varying degrees on a view of power as omnipotent and unidimensional and as centred in patriarchy or in state or civil society institutions. Indeed, one of Cudd’s main points is that the backlash construct makes no sense unless it is understood against the backdrop of structural relations of power. Cooper and Herman turn that observation on its head, arguing that because the backlash construct is grounded in an assumption that power is reducible to its location in a set of institutions or social groups it is unreliable – even dangerous – as a strategic tool. In short, signiWcant differences in the theoretical understandings that frame the feminist work on the backlash construct account for some of the disagreements about its utility. However, with the exception of Cudd, whose work explores the conceptual Wt between backlash and other betterestablished theoretical concepts within liberal theory, their insights into the strategic advantages and disadvantages of viewing anti-feminism and anti-gay/lesbian forces through the lens of backlash are not irreconciliable. Walby and Strong-Boag’s view that a complex understanding of backlash can be used to correct some of the distortions of mainstream historians is not inconsistent with Newson, Bhachu, Hawkesworth, Cooper, and Herman’s view that the backlash construct itself perpetuates its own set of distortions. Indeed, most of these writers argue, at some level, that feminist and gay/lesbian activists need to place strategic considerations within a more nuanced, multi-dimensional account of social struggles and change. This book provides support for their argument. Resistance and Social Change On the one hand, the research in this volume presents a collective challenge to Faludi’s (1991) overly simplistic conceptualization of backlash. The see-saw image of a linear trajectory of feminist success followed by the reversal of earlier achievements does not accurately encapsulate the reception and impact of second-wave feminist attempts to effect social change in Canadian law and policy (Lessard, this volume). On the contrary, the various studies indicate that the resistance to change that was demanded – and, more importantly, achieved in some measure – by social movements is an inevitable and ongoing part of the political culture in liberal states. It is not a phenomenon that emerges full-blown at particular points in time, albeit the intensity of the resistance is greater at some moments than it is at others. Moreover, the processes of change and resistance are much


more complex and overlapping than the Faludi-inspired imagery and rhetoric of backlash suggests. On the other hand, our research studies do not provide unequivocal evidence in support of the argument that feminists should abandon backlash as a conceptual tool. Rather, they are in accord with the more complicated conceptions of backlash elaborated by Walby (1997) and others, namely that resistance to feminism is continuous across time and space but is never homogeneous or precisely calibrated within and across all institutional sites and all areas of law and policy. What changes are the context, content, form, and degree of resistance at speciWc moments and in particular arenas, all of which must be carefully studied. As well, particular attention must be paid to the role of the mainstream media in shaping events into narratives of change and resistance that are intelligible within a restrictive liberal paradigm (Chunn, this volume). Moreover, viewed retrospectively, second-wave feminism and other 1960s social movements must be contextualized in relation to the (re)formation of welfare liberalism as neo-liberalism during the late twentieth century. Keynesian states, based on post-Second World War afXuence and “new” middle classes, created spaces for the development of the 1960s countercultures and for historical “underdogs” to make equality claims on the state, which, in turn, contributed to the “liberalization” of law and policy in various areas (Hall et al. 1978; Hall 1980; Brodie, Gavigan, and Jenson 1992). By the early 1970s, the “boom” times were over and the move from the hegemony of welfare liberalism to the hegemony of neo-liberalism was in process (Cossman and Fudge 2002). As in other jurisdictions, the restructuring of the Canadian liberal state has shifted the parameters of debate to the political right (Bashevkin 1998; Brodie 1995). Traditional conservatism has moved to neo-conservatism, as witnessed by the purging of “red Tories” and the integration of a fundamentalist Christian Right component into the new Conservative Party of Canada. Welfare liberalism has shifted to neo-liberalism, as witnessed by the purging of the social/ left wing and the integration of the libertarian right component within the Liberal Party. And feminism itself, along with other 1960s social movements, has been weakened by the attacks of anti-feminists, including antifeminist feminists (Minnich 1998). That said, historical and cultural inXuences different from those in the United States and Western Europe have helped to shape a distinctive context for the emergence of second-wave feminism in Canada. Ann Oakley and Juliet Mitchell (1997, xx) argue that, originally, the dominant inXuences on feminism in Europe were “variously socialist,” and, therefore, the emphasis was on women within class systems and on the women’s liberation movement rather than on feminism. In contrast, because the United States after McCarthyism was “innocent of a widespread socialist

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tradition,” feminists emphasized power rather than class, and the history of (second-wave) feminism “was of women Wrst and foremost, irrespective of other political practices” (ibid.). Moreover, according to Oakley and Mitchell, “the American feminist focus on power ... enabled a right-wing free-market feminism to prosper in a way that has not been possible ... in Europe. This means that something antagonistic to women, [as] a political or social group, can lurk within the very walls that frame the feminist appeal” (ibid. and xxi; see also Walters 1997). During the late twentieth century, socialist ideas and practices had more legitimacy and political space in Canada than in the United States, though less than in Western Europe. Mediated by a materialist sensibility, the liberal and radical feminisms developed by US feminists exerted a somewhat more muted inXuence on (Anglo)-Canadian feminism. Moreover, the women’s movement followed a different trajectory of development among francophone feminists in Québec (Belleau 2000). Although second-wave anglophone Canadian feminists (the main focus of this book), like their counterparts in other Western countries, placed great emphasis on litigation and legislative reform strategies to achieve equality for women, they developed perspectives that drew on various feminist traditions. They produced variants of radical and liberal feminist theories – result-equality and integrative feminisms – that were more attentive to axes of oppression beyond gender. Likewise, socialist-feminism was more apparent in Canadian feminist legal work than in American (Boyd and Sheehy 1986; Bouchard, Boyd, and Sheehy 1999; Chunn and Lacombe 2000), which was likely due to the strength of political economy scholarship in Canada (for example, Maroney and Luxton 1987). Arguably, then, these multiple inXuences on Canadian feminism left less room for the development of right-wing feminisms than in the United States. That said, Canadian critics of feminism (for example, Laframboise 1996; Nathanson and Young 2001, 2006) often invoke the work of American feminists who denounce feminism (for example, Paglia 1994; Roiphe 1993; Sommers 1994). Despite the different national strands of feminism, the most inXuential second-wave feminisms in both institutional and public cultures have primarily reXected the experiences of middle-class, white, heterosexual, ablebodied women. Moreover, liberal feminists early became established in the eyes of the public as spokeswomen of the Canadian women’s liberation movement (Adamson, Briskin, and McPhail 1988, 54). Some feminists have always addressed the linkages between gender inequality and other structured inequalities related to class and, increasingly, to race, disability, and sexual orientation. Attention to differences among women also characterizes identity politics literature, and feminist post-structuralist and postmodern theorists have delineated the “inessential woman” (Spelman 1988). However, these feminisms have been inXuential primarily within academic


and some grassroots activist venues and far less visible in the courts, legislatures, media, and the administrative and organizational structures of the academy itself. As a result, resistance to feminism often actually represents resistance to a particular strand of feminism. In Canada, neo-conservatism and neo-liberalism form a key part of the context, and have constituted ongoing sources, of resistance to feminism and other social movements – those “conscious, collective, organized attempt[s]” to bring about large-scale change in the social order that came out of the 1960s liberalization (Steuter 1992, 289).4 The co-existence of competing world views and the relationship of each to the others – the tensions and (at times) congruities between these relationships and the possibilities and difWculties posed by them – are important considerations in the analysis of backlash (Cossman 2002). At times, neo-conservatism and neo-liberalism have spawned counter-movements to feminism such as the pro-family and fathers’ rights movements that are “conscious, collective organized attempts[s] to resist or reverse social change” (Steuter 1992, 289; see also Boyd and Young, this volume). With the development of the Internet, anti-feminist counter-movements have begun to exist in both material and virtual form (Menzies, this volume). It is, however, vital to keep in mind that none of these world views is internally homogeneous. Neo-conservatism, neo-liberalism, and feminism all incorporate a range of positions. Not surprisingly, then, points of contention as well as consensus among adherents of the three world views have signiWcantly shaped the context in which resistance to feminism has played out. For instance, Lorna Erwin’s (1993, 414) study of the pro-family movement during the 1980s revealed not only the expected consensus on sexual, reproductive, and family issues but also that many “ordinary” members held economic and political attitudes that seemed “somewhat more liberal than those of Canadians generally.” It was these attitudes, presumably, that generated internal resistance when some leaders began to argue for shifting the movement’s emphasis to Wscal restraint and cutbacks in social services (414 and 417). Similarly, differences between more and less libertarian neo-liberals (Walker 1988; Chrétien 1992) and among feminists themselves (Wiegers, Thobani, and Chunn, this volume) were important in framing reaction and resistance to second-wave feminism. The tensions and congruities between neo-conservatism, neo-liberalism, and feminism are evident in the contested nature of language. Since the 1960s, discursive struggles have emerged over the meaning of a whole series of key words and concepts – equality, rights, consent, choice, sameness, difference, family, marriage, children, responsibility, poverty, community, nationhood, citizenship, security, and privacy. This contestation makes it possible for feminists, progressive activists, neo-conservatives, and neo-liberals to use the same language to argue for very different purposes.

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For example, during the early 1990s, the Conservative government in Alberta (mis)appropriated oppositional and progressive discourses on “family,” “community,” and “responsibility” (for example, as developed by First Nations) in order to promote regressive, privatizing policies in relation to the delivery of child welfare (Kline 1997). As well, the neo-liberal language of responsibilization has Wltered and shaped in unanticipated ways feminist efforts to contextualize the malleable language of choice and consent in the arena of heterosexual relations and sexual assault law (Gotell, this volume). Likewise, discursive contestation means that groups may take seemingly similar positions on an issue for very different political purposes. In R. v. Butler, for example, both the feminist group the Women’s Legal Education and Action Fund and governments sought to uphold the criminalization of pornography – the former because of concerns about substantive equality and the latter in order to preserve a virtuous social order. However, both were inattentive to the impact of pornography regulation on non-normative sexualities (Cossman, Bell, Gotell, and Ross 1997). Indeed, a discursive shift marked the increasing hegemony of neoliberalism during the 1990s as the adherents to all three world views began to use the language of choice, rights, equality, and fairness. This convergence made it increasingly difWcult to differentiate between feminist rights discourse and (neo)-liberal discourse (Hough 1994) and more challenging for feminists to refute neo-liberal/neo-conservative arguments and critiques (Steuter 1992). As feminist Susan Cole (1987, 35, cited in Steuter 1992, 302) observed after a public debate with Gwen Landolt, then president of Realistic, Equal, Active for Life (REAL) Women, the pro-family movement was beginning to speak about women’s choice either to stay home or to engage in paid employment: “Never once did she say women were naturally suited to the role of housewife and men born to run the world. She never sided with God. Her vision, at least the one she revealed on the podium, did not have any of the fundamentalist fervour we tend to associate with the right wing.” Other examples abound. Fathers’ rights advocates have been particularly adept at borrowing from the feminist language of rights and equality in the realm of family law reform (Boyd 2004). Equality for Gays and Lesbians Everywhere (EGALE) has used neo-liberal arguments and discourse (“sameness,” “choice,” “(formal) equality”) when arguing for equal treatment of same-sex partners (Young and Boyd, this volume). As a result, feminism has often appeared to be nowhere in sight in these debates, other than as a caricature of claims for special treatment of women or men-hating, anti-family lesbians. Less afXuent lesbians and women who are disadvantaged by same-sex common law and marriage recognition, for example, are typically absent in these caricatures and disappear from public view.


Not surprisingly, then, an ascendant neo-liberalism has made it difWcult for feminists to keep substantive equality on the public agenda or to prevent their advocacy of substantive equality from being attacked as a request for special treatment (Boyd 2004; Chunn, this volume). Feminist concern with race, sexuality, and other factors leading to marginalization has led increasingly to a portrayal of feminism as unrepresentative of the “mainstream” (“Getting the NAC” 1996; Laframboise 1996, 145-57), even as it struggled to become more representative of women generally. Researchers have also noted an increasing erasure of women’s speciWcity and feminist analysis from public culture and from public debates on topics such as same-sex marriage (Young and Boyd, this volume); child poverty (Wiegers, this volume); sexual assault (Gotell, this volume); and child custody (Boyd and Young, this volume). Resistance to feminism does not always, however, take the form of a monolithic rejection and dismissal of the movement for women’s equality. Not all feminists and feminisms are condemned by counter-movements such as fathers’ rights or dissident feminism (Boyd 2004). In fact, an ongoing dichotomization can be detected between “good” and “bad” feminists, as various chapters in this book show, and the relationship between these two constructions goes some way towards explaining which feminisms achieve a public voice and which are discredited (Chunn, this volume; Thobani, this volume). Our authors also explore the construction of good and bad victims (Gotell, this volume; Lessard, this volume), good and bad poor people (Wiegers, this volume), good and bad mothers (Boyd and Young, this volume), and good and bad lesbians and gay men (Young and Boyd, this volume). For example, it has become difWcult for gay men and lesbians who do not conform to nuclear family norms, and for feminists who offer a critical analysis of the reinforcement of the nuclear family, to Wnd a voice in the debates on same-sex relationship recognition (Young and Boyd, this volume). Those who embrace the nuclear family form are “heard” in the debates, whereas those who offer a more challenging critique of the status quo or of accepted institutions are either dismissed or choose not to participate, knowing how dichotomous the debate has become. Our chapters also reveal that certain discourses may prevail in particular arenas but not in others. Parliamentary debates appear to have provided a public forum for neo-conservative resistance to feminism (and to other social movements) during the 1980s and especially the late 1990s and early twenty-Wrst century (Boyd and Young, this volume). Likewise, the Internet has clearly formed a very fertile site for transnational neoconservative and neo-liberal resistance in the twenty-Wrst century (Menzies, this volume). Meanwhile, universities have provided a public forum for libertarian neo-liberal resistance to feminism during the 1990s (Lessard, this volume). However, whichever discourse Wnds a home in a particular

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site, its impact in another is not predetermined. Despite the increased presence of neo-conservative views on the family in parliamentary debates and committee hearings, law reform responses on the part of the federal government have been more cautious and, arguably, have adopted a neoliberal approach rather than a neo-conservative one (Boyd and Young, this volume; Young and Boyd, this volume). As well, despite the fact that legislative reforms to sexual assault law have occurred within a neo-liberal context, they have resulted in some positive consequences for complainants in the courts (Gotell, this volume). These insights potentially provide a basis for developing feminist strategies and for choosing the sites upon which to focus in ongoing feminist struggle. Resistance to feminism may be continuous across time and space, but it does not always demonstrate the same intensity or assume the same form across institutions (Chunn, this volume; Walby 1997). Moreover, in contrast to the cross-national dichotomies drawn by Walby (1997), which we discussed earlier, our studies show that both neoconservative and neo-liberal trends are relevant in Canada. Socially conservative discourses in Canada clearly are aimed at pushing women back into the home (Menzies, this volume; Young and Boyd, this volume), while neo-liberal interventions emphasize the need to roll back social supports and push women into the labour force as a remedy for social problems such as poverty (for example, Wiegers, this volume). However, neo-liberalism appears to have experienced an easier ascendancy in Canada, in relation to neo-conservatism, although the two are often both identiWable in Welds such as family law debates (Cossman 2002; Boyd and Young, this volume). Thus, while Canada has undergone a rightward political shift since the 1960s, (neo)-conservatism, (neo)-liberalism, and feminism have followed different trajectories in this country than they have in either the United States or Western Europe (Bashevkin 1998). For instance, Canadian neoconservatism does not yet have nearly the force of the American model “with its fusion of a cultural and economic offensive” (Erwin 1993, 417). Likewise, the dominant strand of neo-liberalism in Canada is less libertarian than is its US counterpart. Finally, as noted earlier, Canadian feminism appears to have been somewhat more immune to attack from within than it is in the United States. We turn now to an exploration of feminist initiatives in relation to law reform in Canada and their mixed outcomes. Reform and Social Change In addition to tracking the nature of resistance to modern feminism, this book contributes to the now considerable literature and ongoing discussion about feminist strategizing and advocacy in the area of law and social policy. It is, of course, notoriously difWcult for outsider groups and social movements to control the direction of social change even when some of


their ideas are embraced. The mixed outcomes of feminist efforts to change legal norms and inXuence social policy have been well documented, including the tendency for reforms to advantage those women who are already more privileged along lines of race, class, and disability (for example, Kline 1989; Iyer 1997; Mosoff 1997; Razack 1998; Chunn 2006). In most Welds, successes such as the wording of the equality provisions of the Canadian Charter of Rights and Freedoms or rape law reform have been met by renewed resistance and, often, dilutions of the changes (see, for example, McIntyre 1993; McIntyre, Boyle, Lakeman, and Sheehy 2000). It is fair to conclude that feminists have never controlled the social change agenda and to observe that social movements such as feminism are not on an equal plane with proponents of hegemonic world views or countermovements that resonate with conventional ideologies. Yet the tendency to focus on what was not accomplished by feminists, and to forget what was, is problematic. As well, good and bad outcomes of feminist initiatives are not uniform in all arenas, with some producing more success than others. Without focusing on the gains that have been achieved, the accomplishments of earlier generations of feminist activists are downplayed and feminists end up blaming each other for failures (Walby 1997, 160-61). That said, many chapters in this volume (for example, Lise Gotell’s and Hester Lessard’s) demonstrate the ambiguity of outcomes arising from resorting to law reform, the courts, and legal solutions to address broader social problems. The limits of law’s ability to deal with complex social problems has long been a focus of socio-legal literature, which has often revealed the extent to which social movements have been de-politicized by succumbing to the power of law (Bakan 1997; Smart 1989; Smith 1999). In this volume, Wanda Wiegers shows that even broader social policies on problems such as child poverty can be translated into narrow legal strategies that fail to grapple with the material factors generating the problem. Conversely, Lise Gotell, in Chapter 5, shows how promising reforms to sexual assault law can take on a different meaning in light of the reconWguration of masculinities and femininities under neo-liberalism. Sociolegal reform, in and of itself, is rarely transformative. Moreover, (feminist) proposals are rarely, if ever, directly translated into law and policy. Research sometimes can, with hindsight, identify the right combination of circumstances that can produce desired law reforms (Coltrane and Hickman 1992), but it is an entirely different matter to predict these circumstances in advance of an initiative. Thus, while it is crucial to watch for those contradictions that produce spaces and moments that are receptive to change, social transformation is not simply a technical matter of devising exactly the right strategy to achieve equality. In short, reform is a political process that is mediated by the way discourses enter a particular forum, get Wltered, digested, and discussed, often

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becoming estranged in the process from the context in which they were initially formed. Unanticipated and unwanted consequences of reform initiatives are therefore inevitable. For instance, the tendency to treat violence against women as a criminal rather than a civil matter, even in the family law realm, which in turn requires a more difWcult burden of proof for women complaining of violence, was clearly not a reform outcome that feminists working on violence against women sought or expected. Moreover, even reforms that appear to respond to feminist concerns can produce problematic, unintended side effects (as with child support reforms generating a review of child custody law that was motivated by fathers’ rights: Boyd and Young, this volume) or be diminished by their own terms (Fineman 1983; Mossman 1994) or by other developments (Boyd and Young 2004). Similarly, the pursuit of reforms such as harassment policies by feminists seeking to challenge systemic sexism in the workplace has been overtaken in some contexts by managerial imperatives aimed at suppressing workplace sexuality in the name of enhancing productivity and professionalism (Schulz 2003). Undesirable outcomes also can occur when reforms that are advocated in one context (for example, liberalization) are ultimately implemented in another context (for example, neo-liberalism). Thus, the drive by the campus women’s movement in the 1970s and 1980s to implement harassment regimes at universities must now be assessed in the context of the impact of the neo-liberal agenda, not only on universities but also on human rights regimes more generally (Lessard, this volume). Feminists may therefore be blamed for the perceived failures of a reform, whereas the failure is actually produced by the socio-economic conditions within which it operates. A classic example in this regard is the blaming of feminist advocates of family law reform for the high rates of poverty experienced by female-headed lone parent households and for the degeneration of the “fatherless” neighbourhoods in which they live (Richards 1997, 202-13). It is also the case that reform successes and failures are not uniform. There are differences (and contradictions) between what is happening in various institutional sites and the forms of discourse being used at any given time. Thus, social movement activists have had greater success using equality rights arguments in some sites and with some issues as opposed to others. The Supreme Court of Canada has displayed a greater willingness to respond positively to claims for recognition rather than redistribution (Fudge 2001, 341). As well, formal equality and claims for equal treatment with another similar group have obtained the greatest purchase. The problem is that the formal equality argument tends to be made in reference to another (privileged) group, which, in turn, is reinforced as the standard. In addition, the contextual details of systemic disadvantage and of intersecting dimensions of disadvantage tend to get stripped away in


the face of the analytic imperative to construct claimants as the same as their comparators in all respects save for the identity marker – for example, their femaleness or maleness – which brings them within one of the grounds of discrimination (Lessard 2004b). Social transformation is difWcult under these circumstances. For instance, same-sex relationship recognition is achieved on the same terms as normative heterosexual relationships – that is, on a dyadic marriage model (Young and Boyd, this volume); women achieve rights most successfully when they are able to compare themselves most directly to men (Chunn, this volume; Menzies, this volume), and racialized women are most embraced when they are most similar to non-racialized women (Thobani, this volume). Law reform debates are thus all too often framed in a way that excludes a more radical analysis that challenges the norm. Even those who resist feminist arguments, such as neo-conservatives who reject same-sex marriage, endorse a formal equality argument. For instance, because same-sex relationships are not the same as opposite-sex relationships, the law should treat them differently. Moreover, at times, neo-conservatives use a rightsbased argument focused on children to shore up their position, asserting that since same-sex couples cannot really be married in the traditional sense, all things being equal, children have the right to two heterosexual parents (Young and Boyd, this volume). Feminists are not, of course, unaware of the difWculties of presenting their positions within the (neo)-liberal paradigm. Some have tried to adapt their arguments to avoid backlash, or to Wt into the neo-liberal, genderneutral framework, or to deWne their positions in terms that adopt some positions of the counter-movements. For instance, feminists working on law reform have sometimes eschewed a gendered, feminist language about mothers’ disproportionate responsibility for caregiving and domestic labour, in favour of language that frames the issues in terms of the best interests of children (Boyd 2004, 288) or child poverty (Wiegers, this volume). Feminists have thus at times consciously downplayed or excluded feminist discourse in their efforts to advance particular socio-legal reforms. Moreover, during consultations on same-sex marriage and beneWts, some feminists have chosen not to take public positions at all regarding the feminist critique of marriage (Young and Boyd, this volume) in order not to undermine the gay and lesbian lobbyists making the case in favour of same-sex marriage. Similarly, there is often pressure on Black or Aboriginal feminists not to take positions that criticize men or patriarchal relations in their own communities (Koshan 1997; McIvor 2004). In the context of employment equity, Abigail Bakan and Audrey Kobayashi (2000, 44-45) have observed that public servants entrusted with implementing provincial and federal employment equity policies have deliberately downplayed their enthusiasm for the policies in the face of

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what they perceive to be a signiWcant backlash, arguing that any move to improve employment equity will jeopardize reforms already in place. Their study concluded that backlash “is a major factor impeding the progress of employment equity in a number of provinces” (63). These various forms of self-censorship are of great concern, especially during a period when a gendered analysis is notably absent from much state discourse on a wide range of issues from child poverty (Wiegers, this volume) to sexual assault (Gotell, this volume). This book also addresses the difWculties associated with critiquing concepts such as “backlash” or the “gender wars” without buying into their terms of reference. Focusing on a simplistic notion of backlash in the context of law reform risks reproducing the sense of a battle being waged between equally positioned adversaries on neutral terrain (Chunn, this volume). As Susan Boyd and Claire Young (this volume) show in relation to child custody law reform, the outcome of this construction of a complex debate as a “gender war” between men and women can be that a government may strike a “compromise” between feminist and neo-conservative positions by choosing a position that appears to be halfway in between them. The compromise reform may fail to take account of important feminist arguments regarding, for example, the dangers to women and children of failing to take proper account of violence against women. This approach ignores the power dynamic between the two movements and the fact that the historically disadvantaged group might offer “outsider” knowledge that the law should take into account. Another consequence is the construction of socially privileged perspectives and groups as being victimized or marginalized. For example, the reporting on sexual harassment cases during the 1990s frequently, and problematically, assumed an equality of position and power between the complainants and respondents (Lessard, this volume). Feminists are not, of course, the only group to Wnd their reform claims translated in unexpected ways – for instance, fathers’ rights arguments have been taken up to some degree by Canadian policy makers, but not necessarily in a manner that they intended (Boyd and Young, this volume). In fact, a key Wnding of our studies is that it is crucial to examine the role of the state in constituting and reshaping these discursive claims. Connell (2005, 1815) has suggested that whereas explicit backlash movements themselves have not generally had a great deal of inXuence, partly because they constantly exaggerate women’s power, neo-liberalism itself is a key movement in the defence of gender inequality. Its ostensibly gender-neutral promotion of free market principles, individualism, and the rejection of state control cannot promote social justice in relation to gender. As most studies in this volume show, the larger political context is key to understanding the resistance to feminism and the trajectory of reform initiatives.


Feminists and other progressive social movements must also keep in mind that they are contesting structures of power that often are more receptive to, and supportive of, the discourse of counter-movements. The resistance to feminism manifested by counter-movements such as fathers’ rights thus speaks both to the measure of success that feminism has achieved at certain times and places and to the power that feminism is confronting. As Chafetz and Dworkin (1987, 33) put it: “A backlash movement is most likely to emerge when the movement against which it is reacting grows relatively large or effective in the pursuit of its goals and therefore comes to be perceived as a substantial threat to material and status interests.” These counter-movements may well exist before the social movement they resist, but “they neither fully organize as a countermovement nor develop their ideological scope until after the rise and initial success of the movements they attack” (Steuter 1992, 289). Understanding the relationship between social movements such as feminism, power, and the state is therefore key. Organization of the Book The chapters are organized into three clusters, based on various sites of discursive struggle. The Wrst part examines media representations of feminism, anti-racism, and their counter-movements. In “‘Take It Easy Girls’: Feminism, Equality, and Social Change in the Media,” Dorothy Chunn presents a thematic content analysis of how mainstream, English-language newspapers have depicted feminist perspectives on equality/equity in the “public” realm over a thirty-two-year period. She argues that conceptions of equality have been framed consistently within the conWnes of hegemonic liberal ideas and assumptions. Thus, feminist perspectives on equality have been (re)presented in very selective and homogenizing ways with certain voices included and others – notably those of racialized feminists in Canada – marginalized or absent. She also concludes that resistance to feminism has been omnipresent, albeit the precise content and degree of resistance has shifted with the impact of neo-liberal restructuring. Overall, then, feminists have been neither “agenda setters” nor “primary deWners” (Hall et al. 1978) of the equality issues covered by the print media in late-twentieth-century Canada. Robert Menzies tackles another form of media – the brave new world of men’s rights Web pages – in “Virtual Backlash: Representations of Men’s ‘Rights’ and Feminist ‘Wrongs’ in Cyberspace.” He documents remarkably virulent examples of anti-feminist content, suggesting that far from being irrelevant, these cyber-discourses can play a role in shaping the contemporary status of feminism. Indeed, many themes identiWed by Menzies are reXected in other studies in this volume. As a result, feminists ignore cyberspace as a site of struggle at our peril. For example, many of the websites

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portray feminism as threatening to the nation – a theme that crops up in parliamentary debates on “the family” (Boyd and Young, this volume; Young and Boyd, this volume) as well as in Sunera Thobani’s chapter. Moreover, the threat to the nation is frequently linked to threats to the father-headed patriarchal family as well as to threats to the racialized (white) character of the nation. This chapter also serves as the most comprehensive review of anti-feminist discourses and literature in the book. In “Imperial Longings, Feminist Responses: Print Media and the Imagining of Nationhood after 9/11,” Sunera Thobani challenges Faludi’s concept of backlash in the context of the representation in mainstream print media of Muslim men and women post-9/11, during the period when the “war on terrorism” began. Resisting any notion that backlash is sufWcient to understand the racialized and gendered contours of these representations, Thobani suggests instead that the post-9/11 reporting played a role in reconstituting Canadian nationhood as “Western” in its essence and, therefore, as imperiled by the nation’s others: immigrants and refugees. Read alongside the men’s rights notion that feminism imperils the nation (Menzies, this volume), this theme points to the xenophobic anxieties of those who resist change to imperialist and patriarchal norms. Importantly, Thobani illuminates the construction of Muslim women as hapless victims and unwitting accomplices of hyper-patriarchal Muslim men. The portrayal of Muslim women as being in need of rescue by the West deXects attention from the ongoing misogyny and sexism facing women in Canada and thus reinforces the sense that Western feminism is irrelevant. The second part of the book enters the terrain of sexuality, in which feminist claims often generate (heterosexual) anxiety and resistance. Its two chapters examine trends in the criminal law of sexual assault and the development and operation of sexual harassment policies in universities. Lise Gotell builds on the extensive Canadian feminist literature on sexual assault in “The Discursive Disappearance of Sexualized Violence: Feminist Law Reform, Judicial Resistance, and Neo-Liberal Sexual Citizenship.” Like other feminists, she notes the uneven development of this Weld of law, with law reforms frequently being met by resistance and Charter challenges. However, Gotell places this area of the law squarely in the context of the rise of neo-liberalism, which contributes to the erasure of the gendered context of sexual violence. This framework also allows her to formulate the concept of the “neo-liberal sexual citizen,” who is held responsible for her own safety in a privatized discourse of sexualized violence. The concept of the neo-liberal sexual citizen, while still highly controversial, permits an understanding of some of the successes in recent case law on the admissibility of personal records and consent as well as the speciWc form of backlash to feminist understandings of sexualized violence


that now occurs when women take complaints of sexual assault into the criminal justice system. In “Backlash in the Academy: The Evolution of Campus Sexual Harassment Regimes,” Hester Lessard explores backlash against feminism in the university context, using the example of the struggle for, and response to, sexual harassment protections at the University of British Columbia, as well as two high-proWle sexual harassment claims in British Columbia in the 1990s. Like Thobani, Lessard troubles the traditional narrative of backlash. By placing the story of sexual harassment policies within the broader context of liberalization and, later, of the neo-liberalization of Canadian universities and higher education policy, she complicates the backlash narrative and provides a stronger base for analysis and strategy during a period when human rights regimes were being privatized. The Wnal part of the book examines law and policy related to family, which constitutes a prime site of backlash discourse. In “Feminism, Fathers’ Rights, and Family Catastrophes: Parliamentary Discourses on Post-Separation Parenting, 1966-2003,” Susan Boyd and Claire Young document the extent to which fathers’ rights and feminist discourses have permeated parliamentary debates on family law in Canada since the Wrst Divorce Act was initiated. Their Wndings challenge the dominant narrative emerging from fathers’ rights advocates that feminists have controlled the law reform agenda. In fact, gendered analyses were virtually silenced in government documents on family law reform by the turn of the twenty-Wrst century. At the same time, however, the interests of the neo-liberal state in privatizing social costs coalesced with the arguments that many women’s groups made about the economic needs of women and children, and reforms to child support law responded to these state interests as much as they did to feminism. This chapter also paints a more complex picture of backlash, suggesting that fathers’ rights discourse might better Wnd its ammunition in state policies rather than in the ostensibly successful feminist initiatives. It also illustrates the superWcial nature of law reforms touted as “feminist” and the resistance to incorporating an approach to post-separation parenting law that takes proper account of women’s ongoing social responsibility for children. Wanda Wiegers explores another terrain in which the speciWcity of women’s lives has become invisible in “Child-Centred Advocacy and the Invisibility of Women in Poverty Discourse and Social Policy.” Her critical analysis of the shift towards a focus on children in the war against poverty again directs attention to the larger context of the rise of neoliberalism in Canada, accompanied by state initiatives on restructuring economic responsibilities by emphasizing personal rather than collective responsibility. Although the backlash dynamic is perhaps less obvious in this study, Wiegers shows that the new policies such as child support

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guidelines, the National Child BeneWt, and the Early Childhood Development Initiative beneWt least those who are most disadvantaged – women and children who are reliant on social assistance. Moreover, mother blaming is prevalent along with a pathologizing and infantilization of women on welfare. This study points to the urgency of reconsidering feminist efforts to invoke child-centred strategies in order to advance women’s interests. Finally, in “Challenging Heteronormativity? Reaction and Resistance to the Legal Recognition of Same-Sex Partnerships,” Claire Young and Susan Boyd analyze the virtual disappearance of feminist insights on family and marriage in public hearings on same-sex relationship recognition in Canada in the early twenty-Wrst century. The quite remarkable changes in this Weld of law over a short period of time have certainly generated a clear neo-conservative backlash, but this chapter is more concerned with the ways in which the oppositional framework of the debate has sidelined feminist analysis. Despite the challenge that same-sex marriage brings to socially conservative assumptions about family, society, and nation, the debates have proceeded in a narrow paradigm that reinforces dyadic, nuclear family relationships and erases a history of feminist critical engagement with the family. This study suggests the need for more cross-fertilization between social movements, at least to the extent that the gay and lesbian lobby in Canada has marginalized feminist critique in order to put forward the most persuasive argument. We hope that this book adds to the extant critical and feminist theorizing about the workings of social movements and counter-movements. Our research provides empirically grounded knowledge that feminists and other social activists can draw on in developing new legal and political strategies for promoting the equality of all women during an era marked by the decline of the welfare state and the ascendancy of a neo-liberal state in Canada. Now more than ever, feminist insights – particularly those that are attentive to questions of race, class, and other key markers of social inequality – need to be conveyed to the public. One insight of our studies is that discursive sites such as the media and the House of Commons tend to privilege particular voices within social movements such as feminism, typically marginalizing the analysis of women of colour, for instance, and privileging the voices of those who Wt better within liberal or neo-liberal frameworks. As well, feminists must develop strategies to respond to various components of the anti-feminist movement. Finally, Robert Menzies (2001, 201) has pointed out that feminists must take the men’s rights movement seriously because the struggle that it represents, and its resistance to feminism, is fundamentally related to our (in)ability to preserve and advance human rights. Partly for this reason, all social movements need to take anti-feminism seriously because at its root antifeminism represents “a far deeper conXict over who gets access to the


power structures of contemporary society” (201). Resistance to feminism – in all of its complexities – is thus relevant to all progressive movements for social change.

Notes 1 We have enclosed the word “backlash” in quotation marks here to indicate that we intend to problematize the concept. We will not, however, use quotation marks around the word throughout the book. 2 Donna Laframboise (1996, 8) uses the term “dissident” feminists, while Rhonda Hammer (2002, 8) uses “faux feminists” or “pseudofeminists.” For critical reviews of this literature, see Elizabeth Minnich (1998) and Robert Menzies (2001). 3 Janet Saltzman Chafetz and Anthony Dworkin (1987, 33 and 42), while agreeing generally with the notion that progressive and conservative forces draw resources from one another, suggest that a power imbalance often characterizes this dynamic. SpeciWcally, the backlash or countermovement often is allied with material and status interests. 4 Steuter (1992, 290) points out that while feminism clearly is a social movement, “social movements theorists have so long ignored women’s struggle for change as an object of research that it is now questionable whether the traditional models for explaining and interpreting social movements can have any validity for the experience of women.” References Adamson, Nancy, Linda Briskin, and Margaret McPhail. 1988. Feminist Organizing for Change: The Contemporary Women’s Movement in Canada. Toronto: Oxford University Press. Backhouse, Constance. 2003. “The Chilly Climate for Women Judges: ReXections on the Backlash from the Ewanchuk Case.” Canadian Journal of Women and the Law 15(1): 167-93. Bakan, Abigail, and Audrey Kobayashi. 2000. Employment Equity Policy in Canada: A Provincial Comparison. Ottawa: Status of Women Canada. Bakan, Joel. 1997. Just Words: Constitutional Rights and Social Wrongs. Toronto: University of Toronto Press. Bakker, Isabelle, ed. 1996. Rethinking Restructuring: Gender and Change in Canada. Toronto: University of Toronto Press. Bashevkin, Sylvia. 1998. Women on the Defensive: Living through Conservative Times. Toronto: University of Toronto Press. Belleau, Marie-Claire. 2000. “L’intersectionalité: Feminisms in a Divided World (QuébecCanada).” In Dorothy E. Chunn and Dany Lacombe, eds., Law as a Gendering Practice, 19-39. Toronto: Oxford University Press. Bhachu, Parminder. 1997. “Dangerous Design: Asian Women and the New Landscapes of Fashion.” In Ann Oakley and Juliet Mitchell, eds., Who’s Afraid of Feminism: Seeing through the Backlash, 187-99. New York: New Press. Bouchard, Josée, Susan B. Boyd, and Elizabeth A. Sheehy. 1999. “Canadian Feminist Literature on Law: An Annotated Bibliography.” Canadian Journal of Women and the Law 11(1 and 2): 1-604. Boyd, Susan B., ed. 1997. Challenging the Public/Private Divide: Feminism, Law, and Public Policy. Toronto: University of Toronto Press. –. 2004. “Backlash against Feminism: Canadian Custody and Access Reform Debates of the Late Twentieth Century.” Canadian Journal of Women and the Law 16(2): 255-90. Boyd, Susan B., and Elizabeth Sheehy. 1986. “Feminist Perspectives on Law: Canadian Theory and Practice.” Canadian Journal of Women and the Law 2(1): 1-52. Boyd, Susan B., and Claire F.L. Young. 2004. “Feminism, Law, and Public Policy: Family Feuds and Taxing Times.” Osgoode Hall Law Journal 42(4): 545-82. Brodie, Janine. 1995. Politics on the Margins: Restructuring and the Canadian Woman’s Movement. Halifax: Fernwood Publishing. —. 2002. “Citizenship and Solidarity: ReXections on the Canadian Way.” Citizenship Studies 6(4): 377-94.

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Brodie, Janine, Shelley A.M. Gavigan, and Jane Jenson. 1992. The Politics of Abortion. Toronto: Oxford University Press. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. Chafetz, Janet Saltzman, and Anthony Gary Dworkin. 1987. “In the Face of Threat: Organized Antifeminism in Comparative Perspective.” Gender and Society 1(1): 33-60. Chrétien, Jean, ed. 1992. Finding Common Ground. Hull: Voyageur. Chunn, Dorothy E. 2006. “Feminism, Law, and ‘the Family’: Assessing the Reform Legacy.” In Elizabeth Comack, ed., Locating Law: Race/Class/Gender Connections, 234-72. 2d edition. Halifax: Fernwood Publishing. Chunn, Dorothy E., and Dany Lacombe, eds. 2000. Law as a Gendering Practice. Toronto: Oxford University Press. Cole, Susan. 1987. “On MufWns and Misogyny: REAL Women Get Real.” THIS Magazine 21(4): 33-36. Coltrane, Scott, and Neal Hickman. 1992. “The Rhetoric of Rights and Needs: Moral Discourse in the Reform of Child Custody and Child Support Law.” Social Problems 39(4): 400-20. Connell, Robert W. 2005. “Change among the Gatekeepers: Men, Masculinities, and Gender Equality in the Global Arena.” Signs: Journal of Women in Culture and Society 30(3): 1801-25. Cooper, Davina. 1997. “‘At the Expense of Christianity’: Backlash Discourse and Moral Panic.” In Leslie Roman and Linda Eyre, eds., Dangerous Territories: Struggles for Difference and Equality in Education, 43-61. New York: Routledge. Cossman, Brenda. 2002. “Family Feuds: Neo-Liberal and Neo-Conservative Visions of the Reprivatization Project.” In Brenda Cossman and Judy Fudge, eds., Privatization, Law, and the Challenge to Feminism, 169-217. Toronto: University of Toronto Press. Cossman, Brenda, and Judy Fudge, eds. 2002. Privatization, Law, and the Challenge to Feminism. Toronto: University of Toronto Press. Cossman, Brenda, Shannon Bell, Lise Gotell, and Becki Ross. 1997. Bad Attitude/s on Trial: Pornography, Feminism, and the Butler Decision. Toronto: University of Toronto Press. Coward, Rosalind. 1999. Sacred Cows: Is Feminism Relevant to the New Millennium? London: Harper Collins. Cudd, Ann E. 2002. “Analyzing Backlash to Progressive Social Movements.” In Anita M. Superson and Ann E. Cudd, eds., Theorizing Backlash: Philosophical ReXections on the Resistance to Feminism, 3-16. Lanham, MD: Rowman and LittleWeld. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Erwin, Lorna. 1993. “Neoconservatism and the Canadian Pro-Family Movement.” Canadian Review of Sociology and Anthropology 30(3): 401-20. Faludi, Susan. 1991. Backlash: The Undeclared War against American Women. New York: Crown Publishers. Fineman, Martha. 1983. “Implementing Equality: Ideology, Contradiction and Social Change: A Study of Rhetoric and Results in the Regulation of the Consequences of Divorce.” Wisconsin Law Review 4: 789-886. Fudge, Judy. 2001. “The Canadian Charter of Rights: Recognition, Redistribution, and the Imperialism of the Courts.” In Tom Campbell, K.D. Ewing, and Adam Tomkins, eds., Sceptical Essays on Human Rights, 335-58. Oxford: Oxford University Press. “Getting the NAC.” 1996. Editorial. Globe and Mail. 18 June, A18. Hall, S. 1980. “Reformism and the Legislation of Consent.” In National Deviancy Conference, ed., Permissiveness and Control: The Fate of the Sixties Legislation, 1-43. London: MacMillan Hall, S, et al., eds. 1978. Policing the Crisis: Mugging, the State and Law and Order. London: MacMillan. Hammer, Rhonda. 2002. Antifeminism and Family Terrorism. Lanham: Rowman and LittleWeld. Hawkesworth, Mary. 1999. “Analyzing Backlash: Feminist Standpoint Theory as Analytical Tool.” Women’s Studies International Forum 22(2): 135-55.


Herman, Didi. 1997. “‘Then I Saw a New Heaven and a New Earth’: Thoughts on the Christian Right and the Problem of ‘Backlash.’” In Leslie Roman and Linda Eyre, eds., Dangerous Territories: Struggles for Difference and Equality in Education, 63-74. New York: Routledge. Hough, Janet. 1994. “Mistaking Liberalism for Feminism: Spousal Support in Canada.” Journal of Canadian Studies 29(2): 147-64. Howard, A., and S.R.A. Tarrant, eds. 1997. Reaction to the Modern Women’s Movement, 1963 to the Present. New York: Garland. Iyer, Nitya. 1997. “Some Mothers Are Better Than Others: A Re-examination of Maternity BeneWts.” In Susan B. Boyd, ed., Challenging the Public/Private Divide: Feminism, Law, and Public Policy, 168-94. Toronto: University of Toronto Press. KingWsher, Catherine. 2002. Western Welfare in Decline: Globalization and Women’s Poverty. Philadelphia: University of Pennsylvania Press. Kline, Marlee. 1989. “Race, Racism, and Feminist Legal Theory.” Harvard Women’s Law Journal 12: 115-50. –. 1997. “Blue Meanies in Alberta: Tory Tactics and the Privatization of Child Welfare.” In Susan B. Boyd, ed., Challenging the Public/Private Divide: Feminism, Law, and Public Policy, 330-59. Toronto: University of Toronto Press. Koshan, Jennifer. 1997. “Sounds of Silence: The Public/Private Dichotomy, Violence, and Aboriginal Women.” In Susan B. Boyd, ed., Challenging the Public/Private Divide: Feminism, Law, and Public Policy, 87-109. Toronto: University of Toronto Press. Laframboise, Donna. 1996. The Princess at the Window: A New Gender Morality. Toronto: Penguin. Lessard, Hester. 1999. “Farce or Tragedy?: Judicial Backlash and Justice McClung.” Constitutional Studies 10(3): 65-73. –. 2004a. “Backlash and the Feminist Judge: The Work of Justice Claire L’Heureux-Dubé.” In Elizabeth Sheehy, ed., Adding Feminism to Law: The Contributions of Justice L’HeureuxDubé, 133-42. Toronto: Irwin Law. –. 2004b. “Mothers, Fathers, and Naming: ReXections on the Law Equality Framework and Trociuk v. British Columbia (Attorney General).” Canadian Journal of Women and the Law 16(1): 165-211. Maroney, Heather Jon, and Meg Luxton, eds. 1987. Feminism and Political Economy: Women’s Work, Women’s Struggles. Toronto: Methuen. McIntyre, Sheila. 1993. “Backlash against Equality: The Tyranny of the ‘Politically Correct.’” McGill Law Journal 38(1): 1-63. –. 2004. “Personalizing the Political and Politicizing the Personal: Understanding Justice McClung and his Defenders.” In Elizabeth Sheehy, ed., Adding Feminism to Law: The Contributions of Justice L’Heureux-Dubé, 313-46. Toronto: Irwin Law. McIntyre, Sheila, with Christine Boyle, Lee Lakeman, and Elizabeth Sheehy. 2000. “Tracking and Resisting Backlash against Equality Gains in Sexual Offence Law.” Canadian Woman Studies 20(3): 72-83. McIvor, Sharon. 2004. “Aboriginal Women Unmasked: Using Equality to Advance Women’s Rights.” Canadian Journal of Women and the Law 16(1): 106-36. Menzies, Robert. 2001. Review of The War against Boys: How Misguided Feminism Is Harming Our Young Men, by Christina Hoff Sommers. Canadian Journal of Women and the Law 13(1): 196-202. Minnich, Elizabeth Kamarck. 1998. “Feminist Attacks on Feminisms: Patriarchy’s Prodigal Daughters.” Feminist Studies 24: 159-75. Mosoff, Judith. 1997. “‘A Jury Dressed in Medical White and Judicial Black’: Mothers with Mental Health Histories in Child Welfare and Custody.” In Susan B. Boyd, ed., Challenging the Public/Private Divide: Feminism, Law, and Public Policy, 227-52. Toronto: University of Toronto Press. Mossman, Mary Jane. 1994. “Running Hard to Stand Still: The Paradox of Family Law Reform.” Dalhousie Law Journal 17(1): 5-34. Nathanson, Paul, and Katherine K. Young. 2001. Spreading Misandry: The Teaching of Contempt for Men in Popular Culture. Montreal and Kingston: McGill-Queen’s University Press.

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–. 2006. Legalizing Misandry: From Public Shame to Systemic Discrimination against Men. Montreal and Kingston: McGill-Queen’s University Press. Newson, Janice. 1993. “‘Backlash’ against Feminism: A Disempowering Metaphor.” Resources for Feminist Research 20(3/4): 93-97. Oakley, Ann, and Juliet Mitchell, eds. 1997. Who’s Afraid of Feminism? Seeing through the Backlash. New York: New Press. Paglia, Camille. 1994. Vamps + Tramps: New Essays. New York: Vintage Books. Parton, Nicole. 1991. “Blow Feminism Girls, Find Mr. Right.” Vancouver Sun, 9 November, A5. Razack, Sherene H. 1998. Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms. Toronto: University of Toronto Press. Richards, John. 1997. Retooling the Welfare State: What’s Wrong, What’s to Be Done. Ottawa: C.D. Howe Institute. Roiphe, Katie. 1993. The Morning After: Sex, Fear, and Feminism on Campus. New York: Little Brown. Royal Commission on the Status of Women in Canada. 1970. Report. Ottawa: Information Canada. Schulz, Vicki. 2003. “The Sanitized Workplace.” Yale Law Journal 112: 2061-94. Segal, Lynn. 1999. Why Feminism? Gender, Psychology, Politics. New York: Columbia University Press. Smart, Carol. 1986. “Feminism and Law: Some Problems of Analysis and Strategy.” International Journal of the Sociology of Law 14: 109-23. –. 1989. Feminism and the Power of Law. London: Routledge. Smith, Dorothy. 1992. “Whistling Women: ReXections on Rage and Rationality.” In W. Carroll, D. Harrison, L. Christiansen-Ruffman, R.F. Currie, and D. Harrison, eds., Fragile Truths: Twenty-Five Years of Sociology and Anthropology in Canada, 207-26. Ottawa: Carleton University Press. Smith, Miriam. 1999. Lesbian and Gay Rights in Canada: Social Movements and EqualitySeeking, 1971-1995. Toronto: University of Toronto Press. Sommers, Christina Hoff. 1994. Who Stole Feminism? How Women Have Betrayed Women. New York: Simon and Schuster. –. 2000. The War against Boys: How Misguided Feminism Is Harming Our Young Men. New York: Simon and Schuster Spelman, Elizabeth V. 1988. Inessential Woman: Problems of Exclusion in Feminist Thought. Boston: Beacon Press. Steuter, Erin. 1992. “Women against Feminism: An Examination of Feminist Social Movements and Anti-Feminist Countermovements.” Canadian Review of Sociology and Anthropology 29(3): 288-306. Strong-Boag, Veronica. 1996. “Independent Women, Problematic Men: First- and SecondWave Anti-Feminism in Canada from Goldwin Smith to Betty Steele.” Histoire sociale/Social History 29(57): 1-22. Thobani, Sunera. 2002. “War Frenzy.” Meridians: Feminism, Race, Transnationalism 2(2): 289-97. Walby, Sylvia. 1997. Gender Transformations. London and New York: Routledge. Walker, Michael, ed. 1988. Privatization: Tactics and Techniques. Vancouver: Fraser Institute. Walters, Margaret. 1997. “American Gothic: Feminism, Melodrama and the Backlash.” In Ann Oakley and Juliet Mitchell, eds., Who’s Afraid of Feminism? Seeing through the Backlash, 56-76. New York: New Press. Wilson, Susannah Jane Foster. 1982. Women, the Family and the Economy. Toronto: McGraw-Hill Ryerson. Cases Cited R. v. Butler, [1992] 1 S.C.R. 452.

Part 1 Media Representations of Feminism, Anti-Racism, and Their Counter-Movements


2 “Take It Easy Girls”: Feminism, Equality, and Social Change in the Media Dorothy E. Chunn

“Feminism was never fashionable.” (Coward 1999, 105)

For feminism and other equality-seeking movements originating in the 1960s, law and mass media were important sites of engagement because of their potential to legitimate and facilitate strategies for social change (Gitlin 1980; Boyd 1997; Cossman and Fudge 2002; Bradley 2003). In retrospect, the collective impact of this engagement was mixed. Mounting evidence indicates that the strategies employed by these social movements to challenge and reduce or eliminate inequalities produced contradictory and uneven results in every institutional arena (ibid; see also Adamson, Briskin, and McPhail 1988; Smart 1989; Freeman 2001). Two pervasive, “blaming” narratives about the impact of second-wave feminism have emerged. The neo-conservative story accuses feminists of making things worse for women by wrongly encouraging them to emulate men and attributes numerous contemporary social ills to women’s misguided efforts to be the same as men (Menzies, this volume). The neoliberal story blames feminists for continuing to make equality demands in a “post-feminist” society when gender equality has been achieved and many women now occupy high status positions and wield power over men (for example, Sommers 1994; Laframboise 1996; Nathanson and Young 2006; see also McRobbie 2004, 1). In this “Catch-22” situation, feminists are critiqued both for disrupting the natural order of things, thereby creating unhappiness for themselves and society, and for refusing to admit their success in the quest for equality and demanding even more of the societal pie. Many feminists have voiced disquiet about the ways in which rights and equality discourses now are used against them (see, for example, Smart 1989; Faludi 1991; Hammer 2000, 2002). Of particular concern are critiques of second-wave feminism emanating from self-professed feminists or former feminists who assert that “backlash” against the women’s movement is self-induced (Paglia 1994; Roiphe 1993; Sommers 1994; Laframboise 1996). Echoing neo-liberal arguments, these critics claim that rigid

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adherence to “victim feminism” has subverted reform efforts and transformed feminists into “victimizers” (ibid.). Before assigning blame for reforms gone awry, it is necessary to move beyond this often anecdotal, rhetorical critique and examine the impact of second-wave feminism more systematically within the wider context of the (re)formation of many Western societies during the late twentieth century. The “benevolent” Keynesian state of the 1950s and 1960s has morphed through a short period of liberalization into an authoritarian form of liberal state in which law and mass media are key to moral (self)-regulation (Hall et al. 1978; Hall 1980; Denis 1995). The two types of liberal state are not wholly distinct, however. The ideological underpinnings of liberalism, including the public-private distinction, remain intact at the same time as social and discursive relations are (re)formed (Boyd 1997; Cossman and Fudge 2002). Feminism and other late twentieth-century equality-seeking movements framed their politics using multiple conceptions of equality, some deploying more mainstream liberal conceptions of formal equality and equality of opportunity, others pursuing a more substantive conception of equality that engages with systemic injustice as well as differentiated experiences of inequality, and still others eschewing the language of equality altogether and focusing on historical, material, and ideological structures of oppression such as colonialism, capitalism, racism, and patriarchy. None of these movements had an easy task. Indeed, the resistance to equality proposals and reforms that is evident in every societal institution throughout this period calls into question the use of the term “backlash” (Faludi 1991) to encapsulate the way in which second-wave feminism was perceived and received. The image of an evolutionary movement towards equality that began in the 1960s and generated backlash two decades later does not accurately explain the development and impact of feminism and other social movements (Chunn, Boyd, and Lessard, this volume). An analysis of the differences in the content of the resistance to feminism that was generated by the (re)formation of the structural context in which feminists were working during the late twentieth century is, however, needed. The relative importance of (neo)-conservative and (neo)-liberal reactions to feminism shifted. During the 1960s and 1970s, the strongest resistance to feminist demands for formal equality and equal opportunity – demands ultimately enshrined in the 1982 Canadian Charter of Rights and Freedoms – came from those with a vested interest in a paternalistic state that openly discriminated against women and minorities in law and policy. With the post-Charter ascendancy of neo-liberalism, opposition to feminism increasingly emanated from those with a vested interest in the reinvigoration of classical conceptions of the minimal state and formal equality, accompanied by increased reliance on private institutions

“Take It Easy Girls”

such as the market to address social needs and issues ( Jenson and Phillips 2001). Print media have played, and still play, a pivotal role in selecting and framing the issues that circulate in the public culture of liberal states. This chapter examines the continuities and differences in the representation of, as well as reaction and resistance to, feminist perspectives on equality through a qualitative content analysis of Canadian mainstream print media coverage. SpeciWcally, I focus on how feminist ideas about equality and the ways to achieve it were portrayed in three representative newspapers over a thirty-two-year period, from the establishment of the Royal Commission on the Status of Women in 1967 to the end of the twentieth century. The analysis addresses one overarching question: To what extent did feminist perspectives inform the conceptualization of equality in these newspapers? I begin with a brief overview of my study and the operation of mass media in liberal societies during the late twentieth century. I then document how print media representations of equality have reXected the conXuence between media criteria of newsworthiness and the key tenets of liberalism – a linkage that has framed conceptions of equality within the conWnes of hegemonic liberal ideas and assumptions about social reality throughout the entire period. Next, I discuss the impact of structural changes in the organization and operation of mass media and in society more generally on the content of media coverage as well as my conclusion that, while the precise content of resistance to feminism has shifted, the consequences of ongoing media adherence to a “liberal” framework has made it difWcult for social movements such as feminism to control the ways in which they are (re)presented. Finally, I assess the extent to which feminism and other social movements can determine how they are depicted in the mainstream media. Mass Media in Liberal States The Study This print media analysis is one component of a larger research project on the reaction and resistance to feminism in different institutional sites. My total newspaper sample consists of 4,645 items on a number of substantive topics that pertain to both “public” and “private” realms – equality/ equity, sexual harassment, custody and access, child support. Media coverage of criminal law is excluded, and feminists and feminism are examined as they appear in a sample of news items on particular topics rather than in a sample based on a search for items on feminists and feminism per se.1 As a result of limited resources, the study focuses on English language media, and, thus, my claims are qualiWed by the exclusively Anglophone scope of the data collection.

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Dorothy E. Chunn

To compile a representative sample, items on the topics of research interest cited earlier were drawn from three different types of newspaper: the Globe and Mail, a self-deWned “quality” newspaper with a focus on national and international coverage aimed at political, business, and academic elites; The Province (Vancouver), a “quality” turned “popular” newspaper with a focus on local coverage that presents itself as the “vox pop”; and the Toronto Star, a hybrid that tries to attract the consumers of both “quality” and “popular” publications (Ericson, Baranek, and Chan 1991, 35-36). Data collection entailed cover-to-cover searches of the three newspapers, excluding the classiWed advertisements, for one month per year, randomly selected, between 1967 and 1999. This approach demonstrated the importance of not focusing only on coverage in the ofWcially designated “news” sections of a newspaper. Most items in the sample were not front or second page news (see also Fitzgerald 1993). Moreover, people often read selectively and may routinely skip “hard” news coverage. This chapter is based on a qualitative content analysis of a sub-sample of 2,719 items related to equality/equity in the “public” realm between 1967 and 1999 – 571 (21 percent) from the Globe and Mail; 1,399 (51.5 percent) from the Toronto Star; and 749 (27.5 percent) from The Province.2 The Operation of Mass Media in Liberal States Like all media coverage, the depictions of feminists and feminist perspectives on equality/equity since the 1960s reXect two major, intersecting inXuences on the determination of what was newsworthy and how it was represented (Hall 1993). First, the impact of format constraints (television, radio, and print), organizational constraints (deadlines, competition, and proWtability), and professional ideologies on the selection and representation of topics was a constant throughout the late twentieth century (Hall et al., 1978, chapter 3; Gitlin 1980, 249-82; Ericson, Baranek, and Chan 1991, 149-238). Journalistic criteria of newsworthiness meshed with prevailing ideas about professional objectivity to frame the representations of issues (ibid.). As a result, media coverage (or not) of feminist perspectives remained squarely within the conWnes of hegemonic liberal ideas about the basis of social reality (see Costain, Braunstein, and Berggren 1997; Huddy 1997; Bradley 2003), including a focus on the individual, an adversarial model of “truth” formation, and a conception of equality as formal equality (sameness). Economic restructuring was the second important inXuence. While media coverage of feminism and feminists remained “in sync” with core liberal assumptions about the world throughout this period, the (re)formation of liberalism changed the ways in which those assumptions were reXected in the (re)presentation of issues. In the wider structural context of the shift from a Keynesian to a neo-liberal state, the boundaries within


which issues were framed were reset and hegemonic, common-sense ideas about social reality were re-jigged (Hall et al. 1978; Hall 1980). In retrospect, it is clear that liberal democracies were moving into a neo-liberal mode throughout the last third of the twentieth century. Structural changes were producing an authoritarian form of liberal democracy (Denis 1995; Jenson and Phillips 2001), contributing to the recasting of media coverage of feminism and analogous social movements to Wt the new political rationality. I now turn to an examination of the continuities and differences in Canadian print media portrayals of equality/equity issues since the 1960s. Newsworthiness, Liberalism, and Media Depictions of Equality The enduring inXuence of liberal ideas on mainstream media and the compatibility between the criteria of newsworthiness and the key tenets of liberalism are easily demonstrated. Primary or cardinal news values – unwritten rules that seem to be widely shared within and across media outlets – are key to decisions about which events out of the universe of daily possibilities will receive coverage (Hall et al. 1978, 53-54; Gitlin 1980, 6-7). The media emphasis on selecting unusual, unique, personal stories involving drama and/or conXict and presenting them in an “objective” frame Wts easily with a focus on the individual, an adversarial conception of “truth” formation, and a conception of equality as sameness. This correspondence between criteria of newsworthiness and liberal ideas is evident in media representations of feminist perspectives on equality/equity throughout my newspaper sub-sample. Focus on the Individual From the 1960s through the 1990s, the media focus on the unique, the personal, and the unusual was reXected in stories that centred on individual equality seekers and achievers. All of the newspapers published many articles featuring women who achieved personal Wrsts. These stories fell into three main categories. One focused on the Wrst woman to be admitted to a job or profession traditionally monopolized by men. Many of these women “pioneers” were noteworthy for their entry into high status careers in law, the church, politics, the military, and business. Coverage included the appointments of Mabel van Camp and Bertha Wilson, respectively the Wrst woman Supreme Court and Appeal Court judges in Ontario (Canadian Press 1971, 1; “First Woman Named” 1975, A3); the Wrst “feminine” Anglican priests (Associated Press 1971, 49) and bishop (McAteer 1993, K18); the Wrst woman general in the Canadian Armed Forces (Canadian Press 1987, A3; “First Woman General” 1987, 56; and the Wrst woman chairman (“she prefers that term”) of the Vancouver Board of Trade in its 103-year history (Bermingham 1990, 29). Other women were newsworthy

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as trailblazers in traditionally male working-class jobs in forestry, mining, and construction and as transit drivers, WreWghters, and police ofWcers. Occasionally, women who achieved both race and gender “Wrsts” were featured, for instance, Glenda Simms, the Wrst woman of colour to preside over the Canadian Advisory Council on the Status of Women (Cockburn 1990, 61; see also Canadian Press 1990, 36). While they marked important achievements, these stories often glossed over the fact that the “Wrsts” were exceptional cases, leaving male domination intact in many arenas and institutions. A second category of stories featured women entering previously maleonly spaces such as drinking establishments (Canadian Press 1969a, W8) and professional and social clubs (Canadian Press 1973, 12; “Egad! Woman Minister” 1978, A4; Rowan 1973, 1 and 2). The admission of the Wrst women to McSorleys, an all-male drinking establishment in New York City for 116 years until New York prohibited discrimination on the grounds of sex, was covered by all three newspapers and was front-page news in two (Lichtenstein 1970, 1; New York Times Service 1970a, 1; United Press International 1970, 3). Similarly, a woman sports reporter who lodged a successful human rights complaint challenging her exclusion from the press box at the Canadian men’s softball championships in the mid-1970s became the focus of a story in the Toronto Star (Canadian Press 1974, G2). Denied entry because “[i]t’s not discrimination, it’s a press box and it’s only for men,” the reporter received an apology and admittance to the press box for the duration of the championships. A third category of personal Wrst stories centred on women who challenged long-standing cultural “norms” in the workplace and public spaces. During the 1960s and 1970s, challenges to dress codes that prohibited women from wearing pantsuits or short skirts were a newsworthy topic. Four years after a Canadian member of parliament and under-secretary of state for education was barred from a London restaurant because she was wearing “a trouser suit” (Canadian Press 1969b, 69), the Toronto Star featured a photo of Flora MacDonald, Conservative member of parliament, in the pantsuit she had worn in the Canadian House of Commons, marking the Wrst time that “a woman MP had worn pants there” (“An Unprecedented Trouser Suit” 1973, 4). These stories also illustrate the media focus on what women wear as opposed to their substantive accomplishments. More recently, women made the news for challenging prohibitions on being topless (News Service 1986a, 22; News Service 1986b, 18) and for breastfeeding in public and/or at work. For example, a 1996 story in the The Province (Vancouver) focused on a ruling by the Québec Human Rights Commission that a real-estate developer and a security company should pay $2,500 in “moral damages” to a woman who was told to “cover up” as she fed her baby in a shopping centre (“Breastfeeding OK’d” 1996, A26).


A similar story highlighted the end of a six-year struggle by a “high-ranking” government ofWcial to bring a sex discrimination complaint before the British Columbia Human Rights Tribunal after being “told she couldn’t breastfeed her baby during a public government forum” (McLintock 1997b, A2; see also McLintock 1997a, A2). Media coverage also individualized feminist reformers and leaders. Like other research (Lilburn, Magarey, and Sheridan 2000), my sub-sample contains reviews of feminist books and feature articles about particular feminists that usually appeared in the “Life,” “Family,” or “Entertainment” sections. Occasionally, feminist books were excerpted (see Greer 1984, M14), and reviews/features were not necessarily negative (Daly 1970, 53; LehmannHaupt 1970a, W8, 1970b, 20). Indeed, some were written by feminists (Cockburn 1990, 61; Landsberg 1992, D5). The American feminist leaders, Betty Friedan and Gloria Steinem, were recurrently proWled (United Press International 1982, B4; Slopen 1983, G11; Cockburn 1992, A41; Dunphy 1993, B13; Wente 1993, A2; McLellan 1996, A2). However, coverage generally highlighted the personal attributes, experiences, and achievements of the feminist without linking her to feminism as a social movement. Even in news reports, feminists who spoke about issues of concern to women or who were representatives of women’s organizations were routinely framed in personalized and/or feminized ways that male leaders were not (see also Goddu 1999; Freeman 2001). A 1969 front-page story about a speech to the Women’s Canadian Club by Judy LaMarsh, a lawyer and former federal cabinet minister, is typical. Along with details of her comments on the status of women, we learn that “the buxom former cabinet minister ... didn’t startle [her audience] with the bold wigs, Xamboyant earrings and garish boots that were part of her armor” when she was in federal politics but rather “looked almost demure in a quiet red kneelength outWt” (Doig 1969, 1). Decades later, media personalization of feminists continued unabated. In 1993, a female columnist praised Betty Friedan for being “both incisive and deeply womanly.” Wearing “a black blouse with many rufXes, orange nail polish, red lipstick ... [s]he is a smallboned, large-featured woman, who was never pretty but is now quite handsome” (Wente 1993, A2; see also Dunphy 1993, B13). Seemingly, the extent to which women/feminists complied with expectations of normative femininity was as important to the media as anything they had to say or contribute. Adversarial Model of “Truth” Formation Like other institutions such as law, the mass media in liberal democracies frame issues within the parameters of an adversarial model of “truth” formation. Imbued with a professional ideology of objectivity (Hall et al. 1978; Gitlin 1980; Ericson, Baranek, and Chan 1991), journalists highlight stories

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involving conXict that can be represented in terms of two, often “extreme,” sides. The “truth” then resides somewhere in between. In newspapers, this framing of sides is sometimes present in a single article or in side-by-side commentaries, but most often it is achieved over time through the presentation of competing viewpoints in different formats, such as letters to the editor, columns with opposed views, and editorials (Ericson, Baranek, and Chan 1991, 168-75). This dichotomization is inherent to liberalism and was evident in several binary opposites that recurred in the depiction of equality/ equity issues throughout my sub-sample. I shall focus on the inter-gender dichotomy between men and women and on the various intra-gender dichotomies linked to the conceptions of women and of feminism. Not surprisingly, the inter-gender dichotomy encapsulated in the slogan “battle of the sexes” was a major source of drama and conXict. Considerable news coverage was framed in war-like language as an ongoing struggle in which women fought for equality with men or vice versa (Kirkwood 1970a, 13, 1970b, 9; Rowes 1971, W5; Bateson 1982, B4; United Press International 1984a, 34, and 1984b, F4; Kastner 1997, D2). The headline of one news item on municipal politics announced that “[i]t’s a battle of the sexes in Ward 10” (Zaritsky 1969, 7), even though the Wrst sentence informed readers that none of the candidates saw it that way. The photo arrangement, placing the four women candidates on one side of a graphic of Ward 10 and the two male candidates on the other side, reinforced the adversarial image. Some news stories depicting the “gender wars” were both entertaining and educational. A 1973 Wller article, “Scotland’s Libbers Whistling at Men,” described how the “renowned” St. Andrews golf course was “echoing to a new hunting call ... of women’s libbers” stationed at street intersections who were whistling and winking at male golfers returning home (Associated Press 1973, 76). Tired of women being propositioned in the streets, the St. Andrews women’s liberation group was trying to give “[the laddies] a sharp lesson in women’s rights.” Other news coverage of the “gender wars” emphasized the hostility and anger of the “combatants.” In a 1984 story about the National Organization for Men opening headquarters in New York, the group founder, a divorce lawyer and monthly columnist on men’s rights in Penthouse Magazine, “vow[ed] to take on the feminist cabal,” which he distinguished from “most women in the country” (United Press International 1984b, F4; United Press International 1984a, 34). Important intra-gender dichotomies were also depicted. For instance, the differentiation between feminine and feminist women is striking and consistent throughout the sub-sample. In a 1969 feature article “The Feminist versus the Feminine,” the page is literally split in half (Worthington 1969, 89). On one side is a full-time homemaker, wife of an executive, mother of Wve with another on the way who spoke “strongly against the working mother” because a mother’s place is “in the home where she’s


needed by her husband and children, not in a downtown ofWce.” On the other side is a chartered accountant in full-time employment at a community college, wife of an engineer and mother of three children, selfdescribed “radical feminist” and founding member of the New Feminists, a group of well-educated Toronto women “dedicated to releasing women from their traditional role as child-bearers and powerless members of a male-dominated society.” The text in a box between photographs of the two women reads: “This is a time of great change for women ... which sometimes makes it difWcult for women themselves to decide which role to play ... One woman is happy to remain at home. The other woman is striving to change society. For still others, perhaps the answer lies somewhere in the middle” [emphasis added]. Feminine women embrace the normative femininity associated with being heterosexual, white, and middle class. They are “ordinary” women who are content to be homemakers – “[s]elf-seeking women’s lib should liberate itself” – and/or to work in “pink ghetto” jobs (Duff 1973, 7). As the president of the National Secretaries Association in the United States during the early 1970s put it, “[t]he truth is, we’re not unhappy” (Klemesrud 1972, W14). Feminine women also like to make themselves conventionally attractive to men and see nothing wrong with participation in beauty contests or employment that trades on their sexuality. They do not feel oppressed and reject feminism as unrepresentative of their interests (Associated Press–Canadian Press–New York Times Service 1970, 3; Grant 1970, 2-4). An article typical of early coverage, “CNE Queen Not behind Liberation,” informs readers that “the reigning beauty” is a university student who will marry in a few weeks, is “always treated like a lady,” and “would rather not be liberated” (McCracken 1974, E1). In contrast, feminists are frequently depicted in media coverage as the antithesis of “real” women. They Xout normative femininity and oppose beauty contests, makeup, and clothes associated with conventional standards of female attractiveness. They aspire to move out of traditional female employment into “men’s” jobs, eschew women’s role as homemakers, and scorn women who stay home. In 1970, for instance, the mayor of East York made the news when she refused to hold a luncheon for Grey Cup beauty contestants. The mention of her age (sixty-nine) and her explanation – “I’m a feminist and don’t believe in beauty contests anyway” – subtly linked feminism to being old and unmarried (“I’m a Feminist” 1970, 28; see also “Beauty Pageant Out” 1970, 9). The media also constructed many feminists as unruly, combative manhaters. Associated with the women’s liberation movement of the early 1970s, this framing of feminists has become the common sense of the present. Words such as “feminist,” “feminism,” “libbers,” “women’s lib” (Grant 1970, 2-4), “lady libs,” “femimilitants” (Bain 1970, 6), and even “women’s organization”

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were invariably used when more radical demands were made and/or when conXict erupted (Rex 1969, 13; Kirkwood 1970a, 13). In 1969, when the Front common des Quebecoises organized a street protest against a Montreal by-law, the story with photographs of police and women demonstrators was front-page news in both Toronto newspapers (Hartley 1969, 1; “170 Chained Women Arrested in Montreal” 1969, 1, 3). Text under the Globe and Mail photograph tells readers that police in “riot gear ... dragged shrieking women to paddy wagons.” The Toronto Star photo featured “militant feminists” chained together, and we learn that 170 were arrested after the Wre department “saw[ed] through chains.” Later coverage contains the same subtext about feminists and feminism. In 1993, a Toronto Star columnist wrote a scathing critique of the Voice of Women (VOW) for organizing a “woman-only” vigil “to pay homage to women and children victimized by war,” which was held at the same place and time as the civic Remembrance Day ceremony to honour (male) war veterans (DiManno 1993, A7). Describing the VOW action as “virulent feminism,” DiManno says that the group – “accusatory, vengeful, engorged with hatred for our fathers and our brothers and our husbands and our sons” – had “politicized” Remembrance Day and “don’t see the shame” of it. Overall, the mainstream media consistently constructed a division between women who were homogenized as reasonable, peaceful, heterosexual, feminine, and attractive and feminists who were homogenized and “othered” as unreasonable, unruly, lesbian, masculine, and unattractive. The “whiteness” of both categories is also signiWcant. The rare appearance of racialized women in these stories suggests that they were not viewed as competitive contenders for the title of reasonable woman. A variation on the adversarial framing of feminist versus feminine women is the dichotomization between organized feminist and anti-feminist women that runs through the coverage of equality issues. Typically, “radical” feminists and feminist organizations are positioned in opposition to antifeminists and anti-feminist organizations. In the 1970s, ad hoc groups such as Men Our Masters (MOM) emerged “to tackle the women’s liberation movement,” working “to preserve femininity for women and masterliness for men” (Associated Press 1970b, 44). In Canada during the 1980s and 1990s, media coverage pitted the anti-feminist group, Realistic, Equal, Active for Life (REAL) Women, against the feminist National Action Committee on the Status of Women (NAC) (see also Gill 1989; Goddu 1999; PirschSteigerwald 2001). The Wnal type of intra-gender dichotomy features the divisions among feminists and underpins a more general distinction between “good” and “bad” feminists. These internecine conXicts are often depicted as generational wars (Associated Press–Canadian Press–New York Times Service 1970, 9). Just before the Wftieth anniversary of women’s suffrage in the United


States in August 1970, the Globe and Mail ran a story on a seventy-fouryear-old one-time suffragette who rejected “the shrill, strident approach” of the women’s liberation movement exempliWed by “burning bras and going to men’s restaurants” (Associated Press 1970a, 9; see also Canadian Press 1970, 61). My sub-sample captures another generational split among second-wave feminists themselves (Reid 1970, 3). During the early 1980s, some liberal feminist leaders in the United States and Canada expressed public dissatisfaction with the way the women’s movement had evolved (“‘Superwomen’ Can’t Win” 1980, C1; Kaye 1982, 8) while younger, often more radical feminists, were equally public in their critique of older movement leaders that were “out of touch” with the contemporary, “liberated young woman” (Dowling 1983, A17). A key issue of contention was equality-seeking strategies with older feminists generally favouring mainstreaming approaches aimed at the achievement of formal equality and equal opportunity and younger feminists seeking nothing less than the end of patriarchy. More recently, the media have devoted considerable attention to divisions among feminists allegedly generated by second-wave women’s liberation feminists – “bitter and humorless man haters ... out of kilter with current issues” (Blackmore 1997, 81; see also McRobbie 2004 on post-feminism) – who alienate younger women and third-wave feminists with their supposed construction of women as eternal victims and their anti-male stance (Lipovenko 1992, A16; Turner 1993, C1, C2; Read 1995, A12). Naomi Wolf, one of the most inXuential of the new generation feminists in America, called for a more “Xexible,” “user-friendly” feminism for the 1990s: “[w]e have to make it clear that joy and feminism aren’t mutually exclusive” (Turner 1993, C1). Unlike the so-called “text-driven,” academic feminism, the new feminism is “fuelled by popular culture and music in particular, and its icons are women with the right attitude, the right looks and a microphone” (O’Brien 1999, B1). Equality as Sameness The dichotomous framing of issues is linked to criteria of newsworthiness that highlight difference and are underpinned by the quintessentially liberal conception of equality as sameness. What makes something newsworthy is a deviation from the norm. Second-wave feminists advocated a plethora of reforms aimed at the implementation of both formal and substantive equality for women. What caught media attention was the legally mandated, overt sex discrimination experienced by women vis-à-vis men in every institutional site. During the 1960s and early 1970s period of liberalization in Canada, the exposure and eradication of legalized unfairness, or making women formally equal to men, became newsworthy and remained so through the 1990s. Although the feminist emphasis on differential

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treatment to achieve equal outcomes was also newsworthy during the late twentieth century, media coverage usually equated equality with identical treatment and reXected ambivalence towards, or outright rejection of, a substantive equality approach. Despite resistance from defenders of the paternalistic status quo, liberalization during the 1960s created the context in which formal equality discourse gained momentum. The three newspapers regularly published items that implicitly or explicitly highlighted the need to eliminate sex discrimination in existing law and policy and/or to provide equal opportunities for women to enter historically male-dominated sites (“Judy Lamarsh’s Black Book” 1967, 11; “Commission Urged” 1967, W2; Riche 1997, A29 and A30). By the early 1970s, the idea that qualiWed women should not be barred from jobs on the basis of their sex was becoming commonplace. In 1972, when the male “chairman” of the Toronto Transit Commission said publicly that it would be problematic to hire women drivers because there were no washroom facilities for them (“Woman’s Place” 1972, 5), the Globe and Mail published a strong rebuttal likening “[t]he washroom ... to ... Custer’s Last Stand for every institution Wghting the advancing female hordes” (“Transit Gloria?” 1972, 6). The feminist focus on formal equality exempliWed by struggles to obtain legislation and policies premised on gender neutrality was also represented in media coverage. During the 1970s and 1980s, when the adoption of gender-neutral language was highly contentious, efforts by feminists and pro-feminists to eliminate all sex-speciWc language met with resistance and sparked lively debates that often centred on the feasibility of replacing words such as “alderman,” “policeman,” and “chairman” with genderneutral terms and of using “Ms” as the equivalent of “Mr” instead of the marital status-signiWers “Mrs” or “Miss.” The media increasingly linked formal equality to gender neutrality with respect to the substantive content of legislation and policy but were slower to support arguments for gender-neutral forms of address. Early coverage of the latter tended to trivialize the issue. In 1973, both Toronto newspapers covered a local political debate about replacing “alderman” with the gender-neutral term “alderperson,” which ended with the Toronto Executive Committee voting in favour and the lone member who opposed the change declaring that he would “remain an alderman not alderperson, and [was] against female aldermen becoming alderwomen or alderpersons” (“Kilborn Does Want Women” 1973, 25). Analysis of the news stories, letters to the editor, and editorial commentary suggests that, overall, the representation of protest against and support for the new gender-neutral term subtly mocked and undermined the signiWcance of the reform. A news item in the Globe and Mail, entitled “Sexist Semantics Is Labeled Absurd,” reported that all three women on Toronto City Council


opposed the adoption of the term “alderperson” (Coleperson (sic) 1973, 5). Although two were not necessarily opposed to gender-neutral language, the article emphasizes the silliness of splitting semantic hairs (see also “Dramatis Personae” 1973, 6). Toronto Star coverage likewise highlighted the theme of splitting hairs. The author of one letter to the editor agreed that replacing the word “man” was a step forward, but she pointed out that “person” also has gender connotations, not to mention “fe-male,” “wo-man,” and “hu-man,” and concluded with the suggestion that perhaps elected ofWcials at City Hall could be called “Alde-beings” (Del Grande 1973, 7; see also Smyth 1973, 7). This “where will it all end?” subtext undercut the arguments for gender-neutral forms of address without directly attacking them, even though feminists ultimately won most of the language “wars,” including the campaign to change the “Museum of Man” to the “Museum of Civilization” (Landsberg 1986, A2). In contrast, feminist efforts to move beyond formal equality to an emphasis on equal outcomes and substantive equality were often subject to direct critique, reXecting the tension within liberalism about afWrmative action policies and legislation (see Coward 1999, 216). None of the three newspapers was unreservedly supportive of substantive equality initiatives. Media discourse often linked afWrmative action to “quotas” (Lipovenko 1984, 14) and either implicitly or explicitly pointed to its unfairness and/or ineffectiveness (“Women’s Rights” 1974, 4; Canadian Press 1982, B21). However, the framing of topics such as pay and employment equity showed some variation. Like other research (Henry and Tator 2005), my analysis reveals that the Globe and Mail was unequivocal in rejecting equity legislation and policies of any kind. A 1998 ruling by the Federal Court of Appeal that allowed women employees at Bell Telephone to take their pay-equity case to the Canadian Human Rights Commission also bolstered a Wfteen-year payequity struggle waged by federal women civil servants (see Fudge 2002) and sparked an immediate editorial denunciation of pay equity as “expensive nonsense”: “The idea behind pay equity is that some people are not being paid what they are truly ‘worth,’ a sentiment we have all felt but have normally never tried to put into law ... [If] Ottawa ... continue[s] to say that pay equity is only fairness ... it is going to have to put several billion dollars worth of Canadians’ money where its mouth is” (“Time to Pay” 1998, A28; see also “Employment Equity’s” 1993, A26). In contrast, the Toronto Star described Ottawa’s case as “weak” and suggested that “[i]ts real objective appears to be to bully the women into settling for 25 cents on the dollar, rather than pursuing a principled legal solution” (“Pay Equity Ruling” 1998, A34). However, the Toronto Star also emphasized that the pay-equity law needed to be “reworked.”

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Overall, the compatibility between journalistic criteria of newsworthiness and key concepts and ideologies in liberal thought created discernible continuities in the (re)presentation of equality/equity issues throughout the late twentieth century. I next examine the consequences for feminism of containment within liberal parameters in the media as well as the differences in the content of coverage of equality/equity over time with the structural shift from Keynesian state to neo-liberal state. Plus ça change? Feminism and Media Representations of Equality The (in)ability of feminists to transgress liberalism in any institutional site, including the media, is arguably related to the reaction and resistance to feminism at a given moment. In retrospect, feminists accomplished a great deal from the 1960s to the end of the twentieth century, although their achievements tend to be less celebrated than their failures. During the 1960s, they challenged the prevailing mode of patriarchal relations embedded within paternalism. This challenge generated immense resistance, but the tenor of the times was towards liberalization. Feminists were able to “ride the wave” that shifted attitudes towards a liberalized state with laws and policies grounded in formal equality and equality of opportunity. In Canada, the liberalization period produced the Royal Commission on the Status of Women (1970) and the 1982 Charter, both of which generated effects that continued into the 1990s. Feminists thus helped to establish the formal rights of women and to legitimize their entry into institutions where men had held a virtual monopoly. During the ascendancy of neo-liberalism, feminists continued to push the parameters of liberalism to obtain the implementation of law and policy aimed at equal outcomes (for example, pay and employment equity) and at alleviating “chilly climates” in schools and workplaces (Lessard, this volume). We can trace these real world feminist achievements in Canadian print media coverage – a curvilinear trajectory marked by a weakening resistance to liberalization through the 1970s, the “triumph” of formal equality in the 1980s, and an increasing resistance to pushing beyond formal, and towards substantive, equality during the 1990s. Although feminist perspectives on equality were always contained within liberal parameters and resistance to feminism existed even when media and public cultures were more favourable to progressive social movements, print media representations of feminist perspectives on equality were not identical throughout the late twentieth century. The same “liberal” criteria of newsworthiness governed and framed media coverage during the entire period, but the wider structural (re)formation of liberalism shifted the pictures in the frame. Thus, it is illuminating to consider the similarities and differences in the media portrayal of feminist perspectives on equality/equity through an analysis of the inter-related and overlapping consequences of the mainstream media


focus on the individual, on inter- and intra-gender conXict, and on equality as sameness. Consequences of Individualization The individualized media coverage of women/feminists simpliWed and decontextualized the equality issues that feminists wanted to highlight. In diverse ways, second-wave feminists strove to illuminate the links between personal and political, but the media focus on individual achievements or discrimination against individuals personalized these issues and often emphasized the extent to which the women involved adhered to normative standards of femininity. The resulting depoliticization of feminist perspectives through the marginalization or erasure of collective interests had two important consequences. First, media coverage conveys the impression that gender/sex discrimination consists of overtly sexist words and behaviour and that it resides in sexist individuals and not in patriarchal structures. By conWning patriarchal attitudes and actions to individuals, only the most egregious men (and women) who openly deny or oppose formal equality are subject to negative representations. Once they are dealt with, and/or preventive measures aimed at individuals are implemented, everyone else is off the hook (Finn 1989; Lessard 1999). The location of sexism in individuals runs through my entire study, becoming most pronounced in the 1980s and 1990s when overt discrimination had become unacceptable. Sexist “bad apples” in my sub-sample include judges (Canadian Press 1993a, A13); politicians (“Kilborn Does Want Women” 1973, 25); and members of all-male clubs who behave or speak in clearly inappropriate ways (“Rotarians Stalk Out” 1992, A10; see also “Kiwanis Club Vote” 1987, D25). During the 1970s and 1980s, the growing success of feminist struggles for the implementation of formal equality and gender-neutral language in law, policy, and public life more generally was signalled by the increasing depiction of opponents as anomalies. In 1981, the organizer of an electoral all-candidates dinner held at the exclusively male Servicemen’s Club in Toronto refused to admit the only woman candidate and was forced by subsequent publicity to admit that the incident was “an embarrassing situation” and that a letter of apology was planned (Levett 1981, A2). By the 1990s, the isolation and “othering” of the sexist “bad apple” was becoming routine. In 1993, a year after then federal justice minister Kim Campbell announced that she would carefully scrutinize all future judicial candidates with the goal of keeping “insensitive sexists off the bench” (Edge 1992b, A1), an Ontario judicial inquiry found that a “so-called Kissing Judge” accused of sexual harassment by three women “had displayed a lack of regard for the dignity and honor of his position” and recommended that he be “removed from ofWce” (Canadian Press 1993a, A13; Tyler 1993, A1 and A4).

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A second consequence of the depoliticization of feminist ideas is that individuals become the women’s movement. While second-wave feminists fought to remove systemic sex discrimination in law and policy and to establish equality for all women in both public and private spheres, the media consistently obscured this objective through coverage that highlighted individual women who experienced overt discrimination and/or successfully challenged it and individual feminist leaders and reformers. Even media savvy feminist leaders such as Gloria Steinem and Judy Rebick were individualized in press coverage and links to the collective goals, and achievements of the women’s/feminist movement were downplayed or absent (Goddu 1999, 106; Freeman 2001; Bradley 2003). Thus, individual feminists were given media space and often portrayed positively but were also conXated with the social movement they represented (Cockburn 1992, A41; Landsberg 1992, D5; McLellan 1994, A17; see also Lilburn, Magarey, and Sheridan 2000). Moreover, in the American context, certain second-wave feminist leaders, like some leaders of other 1960s social movements (Gitlin 1980), attained iconic status through their construction as celebrities, and the representation of feminism as a social movement was often reduced to entertaining “sound bytes” (Bradley 2003; see also Scheuer 2001). Such portrayals are present throughout my sub-sample, albeit during the 1990s second-wave feminist media celebrities were joined, and eclipsed, by some of their selfprofessed feminist critics (Read 1995, A12; Turner 1993, C1 and C2; see also Gring-Pemble and Blair 2000; Hammer 2000). Clearly, the individualization of both the sources and targets of sexism had a deWning inXuence on the representation of equality issues in Canadian print media during the late twentieth century. Consequences of Dichotomization The dichotomous framing of issues in mainstream media also has important consequences for the representation of feminist perspectives on equality. First, the routine media focus on inter- and intra-gender conXict entrenches the separation between the normal and the other. With respect to the man-woman dichotomy, the routine framing of coverage in terms of the “battle of the sexes” establishes men as the norm against which women are assessed. This frame continually reinforces the idea that women are men’s inferiors and that equality means women should aspire to be just like men (see Freeman 1994, 3). Framing media coverage in terms of intra-gender dichotomies has a similar “othering” effect. The consistent division between feminist and feminine women reproduces the idea that feminists are a breed apart and unrepresentative of most women – “normal” homemakers and secretaries are distinct from feminists, as are liberated but feminine women who do


not need feminism to be successful. These divisions underpin an ongoing pattern where women who have entered traditionally male realms proactively distance themselves from feminism and/or blame women for their own inequality. Coverage of a woman candidate who ran against two men in the 1968 federal election “normalized” her as a non-feminist, “a pert home economist with a husband and Wve children” who for years had said “that women ... turn down promotions or public ofWce and then unfairly blame men” (Weiers 1968, 51; see also Zaritsky 1969, 7). Similarly, a woman cabinet minister in the Manitoba government told a 1968 hearing of the Royal Commission on the Status of Women that women’s “own choice” kept them out of traditionally male occupations (Canadian Press 1968, 35). Most signiWcant, perhaps, is the ongoing “othering” of some feminists through the media’s portrayal of internecine conXicts. “Good” feminists do not make equality demands that seriously threaten the status quo whereas “bad” feminists insist that the implementation of equality requires the privileged to relinquish some or all of their privilege. Moreover, the “bad” feminists of today can become the “good” feminists of tomorrow. During the 1960s, liberal feminists who challenged paternalism were initially considered radical relative to their Wrst-wave feminist precursors because their demands could only be met if (some) men gave up advantages to accord women equal rights and opportunities with them in both the public and private spheres. Resistance was manifest in the media and elsewhere. Some Canadian journalists responded to the Royal Commission on the Status of Women and its chair, Florence Bird (the professional journalist, Anne Francis), with overt critique and others with critique in the guise of condescension: “[S]o far as women are concerned, I’m a pretty enlightened fellow. The reason is that the [RCSW] has been meandering across the country, inviting the women of the nation to bare their breasts (in a manner of speaking), and to tell all to Auntie Anne Francis, the chairlady” (Bain 1968, 6). As ideas of formal equality, equal opportunity, and gender neutrality became more normative in law, policy, and public culture during the 1970s, mainstream media began to construct liberal feminists positively in relation to the “bad” feminists linked to the Women’s Liberation Movement. The same columnist now expressed support for formal equality in matters of employment on the one hand and criticized “the extremists” who were linked to “women’s lib” and “the brassiere-burning gambit” on the other hand (Bain 1970, 6; see also Braithwaite 1971, 19, 1972, 9). Second-wave liberal feminist leaders became exemplars of the “good” feminist over time – a trend illustrated by Betty Friedan’s appointment as a fellow at Harvard University in the early 1980s (United Press International 1982, B4). “Good” feminists were now constructed as those who stuck to mainstreaming strategies to secure formal equality and equality of opportunity for women.

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By the late 1980s, with the ascendancy of neo-liberalism, formal equality had become common sense in media and public culture and “bad” feminists were increasingly equated with demands for substantive equality measures. In the United States, the new dichotomy was characterized as the split between (“good”) “equity feminists” who insist that they are now equal to men and feminist struggles are located elsewhere and (“bad”) “gender feminists” who argue that equality for women in liberal democracies is far from established and that feminism continues to be relevant in these societies (Sommers 1994; see also Turner 1993, C1 and C2; Read 1995, A12). In Canada, the split between “good” and “bad” feminists often has a racialized dimension. “Good” feminists are usually white and “bad” feminists are women of colour and/or immigrants (see, for example, Laframboise 1996, 145-57). Post-1993, when the NAC began the ofWcial pursuit of a “politics of inclusion” under the leadership of women of colour (that is, Sunera Thobani and Joan Grant Cummings), media coverage tended to depict the policy “as a divisive politics which discriminates against white, middle-class women” (Pirsch-Steigerwald 2001, 11). Likewise, since 9/11, we see the media dichotomization between “good” racialized feminists who support the arguments that women of colour in Afghanistan and elsewhere need liberating and “bad” racialized feminists who maintain that women of colour in Western societies continue to experience inequalities that need to be addressed (see Thobani, this volume; Jiwani 2005). The theme that explores the idea that continued talk of inequality by Western women is unwarranted in light of the women who are really oppressed around the world is exempliWed by a column that Margaret Wente (1995, A2) wrote for International Women’s Day in 1995. She told readers who think Western women “suffer from domestic oppression because their husbands refuse to do their share of the housework” to remember that Western women’s problems “are rather nice problems to have” as a “quick trot around the globe” conWrms. The “quick trot” focuses on the position of women in China, Russia, Algeria, and Saudi Arabia – effectively constructing the really oppressed woman as a racialized other. A second, related consequence of the media focus on inter- and intragender dichotomies in the framing of equality issues is essentialism – the construction of homogeneous categories that is also the basis for “othering.” Inter-gender dichotomization erases differences among women and commonalities between women and men generated by structured inequalities related to class, race, and other social relations, putting the sole focus on women and men. Yet, clearly, women are not homogeneous nor do they automatically identify with other women or feminism. For instance, women journalists may or may not be sympathetic to feminist perspectives. Those who are can give voice to feminist perspectives themselves or help feminists on the outside to access the media. Former or faux feminists or


non- or anti-feminists arguably are more damaging to feminism than their male counterparts.3 Additionally, dichotomization can equalize unequals by implying that two sides are equivalent when they are not. During the 1980s, media coverage pitted the NAC against REAL Women, suggesting that the two groups represented roughly equal constituencies. In fact, REAL Women was one anti-feminist organization with a sizeable constituency but a relatively small membership (Erwin 1993) compared to the NAC, which was a national umbrella organization representing hundreds of women’s/feminist groups with thousands of members. The media framing misleadingly suggested that REAL Women had parity with the NAC and constructed the former “as a credible opposition to feminism” (Gill 1989, 10; see also PirschSteigerwald 2001). Moreover, as Jenn Goddu (1999, 120) has argued, REAL Women has provided an alternative voice for the media that allows for the representation of feminism in opposition. REAL sources in early media coverage often were former feminists who felt that the women’s movement no longer represented them (ibid., 121; see also Laframboise 1996). Arguably, this dichotomous framing pushed both the feminist movement and the antifeminist counter-movement to the “extremes” in media coverage. Since extreme movements do not speak for the majority of women (or men) in society, feminism and feminists can be relegated to the sidelines since they are not perceived to represent a legitimate constituency (Gitlin 1980, in Goddu 1999, 106-7). Consequences of Defining Equality as Sameness In my sub-sample, the vast majority of media coverage of equality issues during the late twentieth century was framed within the parameters of formal equality and rights discourse and premised on a conception of equality as sameness – enabling women (and other historically disadvantaged groups) to achieve parity with (middle-class white) men. Progressive in the context of challenging paternalism and advocating liberalization, this approach became regressive for feminists once they had achieved formal equality (Smart 1989; Hough 1994). In the context of neo-liberalism, formal equality took on a different gloss when it became part of the discourse of privatization policies and the marketization of social life (see Jenson and Phillips 2001). The privileging of formal equality in media representations has important implications. First, it delegitimates and marginalizes all other perspectives on equality. During the struggles against paternalism, formal equality was virtually the only conception of equality espoused by feminists that appeared in media coverage. Likewise, in the context of neo-liberalism, the privileging of formal equality in law and policy invalidated other conceptions

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of equality. As then Globe and Mail editor William Thorsell (1995, D6) argued, “[t]here are not two different kinds of equality in the world ... Section 15 (2) can be described as the ‘discrimination clause’ in our Charter because, if it were not there, our courts would surely overturn quota-based afWrmative action programs because they unreasonably limit the individual’s right to equality under the law.” Tying discrimination to overt comments and behaviours leaves the ideological and structural bases of inequality intact and renders further demands for measures to address substantive inequalities and/or to ensure equal outcomes unnecessary. Second, the reduction of equality to formal equality obscures or erases qualitative differences by equating situations that are not identical, putting very diverse issues on the same plane in media coverage. With regard to women’s equality, every issue – whether it be gaining access to previously all-male clubs and drinking establishments, winning the right to wear pant suits at work, adopting gender-neutral language, gaining access to traditionally male-dominated careers, and entrenching protection from sex discrimination in the Charter – is framed in much the same way. This levelling-out process obscures the context in which equality demands are made, as well as the relative power of the claimants, and leaves no basis for prioritizing some claims over others. It thus creates space for the equation of claims by social movements that represent “underdogs” such as feminism with the claims of counter-movements aimed at maintaining the status quo or reversing equality gains achieved by historically disadvantaged groups. Indeed, media representation of equality issues in terms of equal and competing claims – women versus men, feminists versus anti-feminists, feminists versus women – effectively constructs feminism not as a social movement but, rather, as just one interest group among many. Although this general conceptualization of interest groups runs through my subsample, the media depiction of feminism and feminist advocacy organizations during the late twentieth century changed in ways that mirrored “real life.” Through the 1970s and culminating with the adoption of the Charter, we can see the inXuence of liberalization in the argument that the state should support advocacy organizations that represent historically unequal groups ( Jenson and Phillips 2001, 79-80). Post-Charter in the context of an ascendant neo-liberalism, the state was increasingly reluctant to provide such support, particularly for organizations that were critical of the state. Advocacy groups such as the NAC were depicted more and more as representatives of “special interests” (ibid., 83-85; see also PirschSteigerwald 2001). By the late 1990s, the NAC was in chronic Wscal crisis and facing closure because of cutbacks in its federal funding, but “pleas for money” to the minister in charge of the status of women went “unheeded” (Canadian Press 1998a, A38; Canadian Press 1998c, A11). Concomitant attacks on the policy of multiculturalism exacerbated the position


of racialized and immigrant women (“Has Diversity Gone Too Far?” 1997, D1 and D2). ConXating equality and formal equality has a third related consequence. It entrenches the white, middle-class male experience as the norm rather than facilitating the reform of the (male) standard to incorporate the lived experiences of differently situated others. As some white middle-class women reap the beneWts of formal equality and begin to approximate that male norm, they become representative of all women in the same way that the experiences of white middle-class men have been generalized historically to everyone else, and it is assumed that the interests of all women are well taken care of. Media coverage highlighted women who started to access and/or assume leadership positions in domains once monopolized by men and implied that other women should be able to do likewise. This theme became increasingly prominent with the ascendancy of neo-liberalism. During the late 1980s and through the 1990s, the three newspapers published ongoing stories about how women were closing the equality gap in every arena from athletics (Couzens 1988, A19), to previously sex-segregated youth organizations such as Scouts (Canadian Press 1998b, A14), to paid employment (Bourette 1999, A1), and to entry and advancement in professional occupations (Statistics Canada 1988, D2; “Women, Minorities Seen Gaining” 1989, G8; Adler 1998, B15; “TD Wins Award” 1999, B21). If we’re all equal now, women (and minorities) are no longer disadvantaged. In a post-feminist era, feminists who continue to talk about substantive inequalities and attempt to reframe the conceptualization of gender equality elicit a number of undermining responses that resonate with the common sense of formal equality. One is a “blaming the victim” response discussed previously – women stereotype too, women pass on opportunities. Another, exempliWed by the lead-in to a 1995 Op-Ed piece in the Globe and Mail, comes from women in historically disadvantaged groups who reject feminist approaches to disadvantage: “Equity programs are well meant, but if I were hired because I am a woman of colour, I would feel as if I had sneaked in the back way. I prefer to enter by the front door” ( Johnson 1995, A24). The perception that women are no longer disadvantaged underpins yet another argument that continued claims for gender equity by women have to be assessed against the evidence that meeting women’s (unwarranted) demands requires the unequal treatment of other historically disadvantaged groups. The construction of feminists/women as more privileged than minorities creates conXict and competition among the marginalized about who is least equal and most deserving of state assistance (Gichuru 1993, H4). This type of media coverage not only undermines the legitimacy of feminism/feminists but also pushes them, and women’s continuing inequality more generally, to the margins or out of the picture altogether.

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Moreover, despite occasional attempts by journalists to contextualize the issues (see Salutin 1995, D1), even demands for redress of historical gender inequities were constructed as unaffordable, and therefore unreasonable, in the economic climate of radical economic restructuring. Increasingly, through the late twentieth century, discourses about “waste” and “Wscal deWcit” attributed to “the ‘uncontrolled growth’ and ‘collective greed’ of the welfare state” (Wall 2000, 262) buttressed the argument that governments simply could not afford to rectify historical mistakes (Laghi 1997, A9). The implication is that gender equity must be assessed in terms of increased output rather than social justice (Blackmore 1997, 85). Perhaps the most important consequence of restricting equality to formal equality is the way in which this conceptualization of equality works to the advantage of those already privileged (see Brodsky and Day 1989). White, middle-class men, and, to a lesser extent, their working-class counterparts can and do claim victim status for themselves by constructing women/feminists as advocates of reverse discrimination (Coward 1999). This theme runs through my sub-sample, becoming more pronounced in the late twentieth century when women were formally equal to men. The media coverage includes recurrent stories about individual men who challenged women-only spaces such as professional associations (Adams 1974, W3), sports leagues (“It’s Your Move” 1974, 14), and women-only events ( Jones 1983, A2). A 1974 item in The Province (Vancouver), entitled “It’s Your Move Women’s Lib,” tells the story of a man who planned to challenge the women-only membership policy of the “Ladies” Professional Golf Association (“It’s Your Move” 1974, 14). Similarly, in the early 1980s, a Toronto Star columnist protested the exclusion of men from a feminist “public pornography seminar” by constructing equivalence between (white) men and historically disadvantaged groups ( Jones 1983, A2 [emphasis added]). Lamenting “the increasing anti-male tone adopted by the more extreme feminists,” he said, “imagine what would have happened if for ‘men’ you substituted ‘blacks’ or ‘the handicapped’ or even ‘women.’” Men also fought against having to pay higher car insurance premiums than women (“Sex Bias Is Charged” 1972, 4; Canadian Press 1972, 74) and brought challenges under equal-pay laws. In 1970, a front-page story in the Globe and Mail highlighted a suit Wled under a federal same-payfor-same-work law by the US Department of Labor against two McDonald’s restaurants “for paying women more than men” to work as order takers (Reuters 1970b, 1; see also Reuters 1970a, 31). The minimal pay of both groups is not mentioned, creating the impression that women employees, not McDonald’s, beneWt at men’s expense. Through the 1980s and 1990s, white men were increasingly constructed as victims of reverse discrimination in coverage of employment and payequity legislation and policies (Henry and Tator 2005). The 1993 brouhaha


over an Ontario government employment-equity initiative that preceded the planned implementation of the Wrst provincial employment-equity legislation in Canada (ibid., 164) is illustrative. An advertisement for a wellpaid civil service position that targeted speciWc under-represented groups and seemingly excluded white men elicited almost universal condemnation in both Toronto newspapers (Deverell 1993, A32; “Employment Equity’s True Colours” 1993, A26; “White Men Need Not Apply” 1993, A22; Ferguson 1993a, A9; Walkom 1993, B5). An agenda-setting story in the Globe and Mail, under a headline referring to the barring of “white applicants” for a “senior position” and linking employment equity to reverse discrimination, set the parameters of debate (Mittelstaedt 1993, A4). Beginning with a question, “should discrimination against white men in job hirings be allowed?” serves to reinforce the messages in the headline. In the face of unrelenting criticism, the New Democratic Party government pulled the advertisement – a move that was reported in all three newspapers as a triumph for advocates of identical treatment (Canadian Press 1993b, A7; Ferguson 1993b, A1 and A20; Rusk 1993, A8). The Toronto Star published a front-page story under the provocative headline “NDP Suspends Ban on White Males” (Ferguson 1993b, A1 and 20). Michele Landsberg, a Toronto Star columnist, was among the few media voices to deviate from the reverse discrimination narrative. Her column “Pro-White Bias Is Still Thriving in Civil Service” pointed out what others ignored – the job was never open to outside applicants because of a hiring freeze in the civil service (Landsberg 1993, D1). Moreover, there was no internal ban on white male applicants since any man on the “surplus” list of civil servants who had been laid off through government downsizing, as well as any francophone or disabled man, was eligible to apply. Since these “details” were not relayed to the public, the media framed the issue as one of “reverse discrimination,” and employment equity took “an undeserved and damaging knock” (ibid.). Notably, Landsberg’s column appeared after the issue had already been framed as employment inequity. In combination, then, individualization, dichotomization, and the conception of equality as formal equality marginalized or excluded most feminist perspectives on equality/equity in media coverage. Newsworthy items about feminism and feminists almost invariably fell within the boundaries of liberal assumptions and discourse. As a result, the ability of feminists to inject counter-hegemonic equality narratives into mainstream media was seriously limited. Thus, it is hardly surprising that (white) liberal feminism emerged as the “acceptable” voice of feminism. As noted earlier, the discourses and strategies of the liberal feminist women’s movement Wt most easily with hegemonic liberal assumptions and ideas. In particular,

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liberal feminists could more easily meet the media criterion of “concision” (Noam Chomsky, in Achbar 1994, 158) than could other feminists whose discourses and strategies were foreign to mainstream (liberal) ears and therefore could be ignored or marginalized. Media sources can be concise when they say things that resonate with common sense because they do not need to contextualize and provide evidence for their assertions. Concision thus acts as a “structural constraint” on unconventional or dissenting views because “[you] can’t give evidence if you’re stuck with concision” and without evidence, you will sound as if you are “from Neptune” (ibid.). The question, then, is whether feminists of any stripe were ever agenda setters with respect to the framing of equality/equity issues in the media. In the conclusion, I assess the extent to which second-wave feminists exercised control over the ways in which the print media represented them and can be blamed for representations gone awry. Liberalism Unmodified? Controlling Representations Like other research (Freeman 2001; Bradley 2003), my study suggests that feminist attempts to inXuence the content of mainstream print media during the late twentieth century had both intended and unintended outcomes and that feminists achieved successes as well as failures with respect to media coverage of equality/equity issues. Notwithstanding the negative consequences of being trapped in a liberal frame, feminism and other social movements helped to facilitate an important discursive shift in media depictions of equality that (re)formed the parameters of debate. Only a minority in Canadian society continue to dispute the idea that women should enjoy formal equality. Now the question is not if women should have equality rights but, rather, whether they have achieved full equality. No longer do overt condescension and paternalism deWne Canadian mainstream media representations of women, albeit some journalists and media sources continue to express such attitudes. Nor do we see the routine use of sexist language. Forms of address such as “Ms” have become widespread, while headlines such as “Woman, 22, Is Named Policeman of Month,” and the use of words such as “ladies” and “girls” to describe adult women are no longer commonplace (“Woman, 22” 1969, 4 [emphasis added]). Nonetheless, resistance to feminism was never absent in media coverage of equality/equity issues – a Wnding that challenges Faludi’s (1991) linear, progress-reaction concept of “backlash.” The content and level of resistance to feminists and other “underdog” social movements in the mainstream media at any given time reXects two intertwined inXuences: media organization and the composition of personnel, particularly journalists and editors, as well as the wider social context in which mainstream media operate. With regard to organizational factors, many studies demonstrate that media reliance on ofWcial or other


mainstream sources of information privileges the accounts of more powerful people and groups in society, making it difWcult for less powerful individuals and groups to be “heard” (Hall et al. 1978; Herman and Chomsky 1988; Ericson, Baranek, and Chan 1989, 1991). Those representing or defending the status quo routinely “over-access” the media and become agenda setters and “primary deWners” of the issues. A key issue for outsider individuals and groups that try to access the media, including feminism, is the receptivity of journalists and editors to their viewpoints. My study parallels other research showing the importance of feminist or pro-feminist journalists in decisions about which issues are selected for coverage and how they are covered. I conducted no interviews with journalists, but my qualitative content analysis supports Freeman’s (2001) conclusion that feminist/women-friendly journalists played a pivotal role in advocating for, and helping to frame, media coverage of equality. Moreover, the position occupied by a feminist or pro-feminist journalist within a media outlet may be just as important as her/his presence or absence. Columnists have more autonomy than reporters. They usually select their topics and can be openly one-sided. Indeed, they are often hired to be opinionated. In contrast, reporters can inXuence but not necessarily determine the issues that they cover and are not supposed to be overtly partial. The existence and receptivity of feminist or pro-feminist journalists to their counterparts outside the media organization is clearly mapped in the presence or absence, as well as the portrayal, of feminist sources in the media coverage of equality issues. In my sub-sample, feminist sources were most visible from the 1970s to the early 1990s, particularly during the 1980s when the number of explicitly feminist/pro-feminist reporters and columnists at the three newspapers was greatest. Similarly, the growing marginalization or absence of such sources during the 1990s coincided with the disappearance or growing equivocation of many feminist or pro-feminist journalists. As feminists became more peripheral sources in media accounts, they were represented increasingly by their critics, including women journalists and sources who were self-identiWed “dissident” feminists, former feminists, or anti-feminists. This development created space for the circulation and growing hegemony of the “blaming” narratives discussed earlier. However, the shifting representation of feminism in mainstream media is by no means solely the outcome of changes at the organizational level. Extraorganizational change is equally implicated. Feminism, (neo)-conservatism, and (neo)-liberalism were competing world views throughout the period studied, but their relationship to each other shifted in the context of restructuring as liberalism was reformed. These shifts are evident in my newspaper sub-sample. The late 1960s to the mid-1980s tracks the successful challenge to welfare paternalism from social movements such as feminism that emerged during a period of liberalization and helped to bring

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formal equality discourses into the public culture. Initially, feminists occupied an “underdog” position that was similar to that of other 1960s rights-oriented social movements that struggled against an entrenched paternalistic establishment. During the 1970s, their use of rights discourse put them in line with liberals and libertarians who pushed for genderneutral law and policy and a return to a minimalist state. In the 1980s, feminists encountered open resistance from neo-conservatives, particularly the “pro-family” counter-movements, but their continuing pursuit of equality rights was compatible with the federal Liberals’ Wght to repatriate the Constitution (Erwin 1993). Feminist success was evidenced in the Charter, which not only entrenched formal equality rights but also provided a basis to argue for law and policy reforms aimed at substantive equality such as pay/employment equity initiatives. Through the 1990s, however, feminists increasingly found themselves “running hard to stand still” in the face of overt resistance to their equality claims and arguments from both neo-liberals and neo-conservatives (Smart 1989). A central development with negative impact on the ability of feminism to be a transgressive “voice” in media discussions of equality was the growing discursive homogeneity among feminists, neo-conservatives, and neo-liberals (Chunn, Boyd, and Lessard, this volume). Over time, everyone ended up using liberal discourse. By the late 1980s in Canada, even neo-conservatives were adopting liberal discourse, for instance, to argue against the extension of equality rights to historically disadvantaged groups such as gays and lesbians (Young and Boyd, this volume; see also Cole 1987). With liberalism increasingly being the only compelling political discourse, feminist meanings of equality tended to be reduced to liberal or neo-liberal ones. In a context of liberalization, feminists could still use equality discourse to make gains (for example, the elimination of overt sex discrimination), but in a neo-liberal, market-driven society with formal equality entrenched and context erased, they can no longer effectively use the liberal discourse of equality/rights (Smart 1989; Hough 1994). Likewise, feminists were initially newsworthy because they were “underdogs” seeking to end sex discrimination – a potentially transgressive goal that could be, and was, truncated and represented by the media without transgressing the boundaries of liberalism. Once formal equality was constitutionally guaranteed, feminists became less newsworthy as the media moved on to other “underdog” interest groups or they were newsworthy in the negative for making demands that fell outside and thus challenged a formal equality paradigm. Consequently, feminists are less and less visible as media sources or are newsworthy for seemingly demanding more than they deserve or by talking about women’s continuing inequality, particularly among those who are not white, heterosexual, able-bodied, and middle class. Most disconcerting for contemporary feminists concerned with


substantive equality is the glaring, unintended consequence of secondwave feminist reform efforts, namely, that the greatest beneWciaries of formal equality – white, primarily heterosexual, able-bodied, middle-class women – are so often the disseminators of the media message that feminism has achieved its objectives and is no longer needed. Representations of equality issues were not completely devoid of potentially transgressive feminist content and the presence of feminist and pro-feminist columnists and, to a lesser extent, reporters at the three newspapers in my study clearly created space for feminist analyses of equality that went beyond liberalism. However, the heterogeneity of feminist demands – ranging from reform to revolution – was seldom represented (see also Goddu 1999). The “tilt” of the media privileged liberal feminist perspectives on equality, pushing a whole range of feminist narratives and discourses about equality to the sidelines (Gill 1989, 1-2). The most critical issue, however, is the extent to which feminist journalists and sources exercised consistent control over whether and how their perspectives on equality issues were represented. Gitlin’s (1980) conclusion about the uphill struggle that “underdog” social movements experience in their attempts to shape how mainstream media represent them is borne out by my analysis, which suggests that feminists did not achieve consistent control over how they or the movement were portrayed in print during the late twentieth century. Indeed, feminists who consciously tried to exert control over media portrayals of themselves and of feminism more generally have acknowledged their inability to do so. After assuming the NAC presidency in 1990, Judy Rebick deliberately encouraged a media focus on her outspokenness, “but in the end was amazed by the extent to which it was exaggerated” and thereby diverted attention away from “what she had to say” (Goddu 1999, 114-15). Overall, blaming feminists for “bad” outcomes or for refusing to acknowledge that they have achieved equality is too simplistic. Feminism truly was never popular (Coward 1999, 105), and resistance was omnipresent in the print media (Gill 1989, 1-2; Goddu 1999). The three newspapers have consistently represented feminist perspectives on equality in selective and homogenizing ways. Certain feminist voices were included while others were marginalized or absent. Thus, while feminist perspectives on equality received more positive coverage at certain times, feminists for the most part were neither “agenda-setters” nor “primary deWners” (Hall et al. 1978) of the equality issues covered by the print media in late twentiethcentury Canada. This Wnding tells us that feminists never had the power attributed to them by their critics and that blaming them for “bad” consequences is misplaced. It also raises the question of how much of the feminism in liberal feminism actually appeared in media coverage after it had passed

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through liberal Wlters and met the journalistic criterion of concision. My analysis suggests that it is often difWcult to distinguish feminism from liberalism unmodiWed in the media coverage of equality issues. Ultimately, perhaps what accounts for the successes of second-wave feminism in inXuencing media representations of equality is the ability to Wnd and exploit spaces within liberalism and liberal discourses on equality.

Acknowledgments I am indebted to Sue Bartuk, Dana Christensen, Chris Giacomantonio, Karen Golding, Camilla Sears, and especially Krista Robson and Chantal Faucher, for research assistance. My thanks to Susan Boyd, Hester Lessard, Lise Gotell, Claire Young, and the anonymous UBC Press reviewers for comments on various drafts of this chapter.

Notes 1 The rationale for these selection criteria is that considerable feminist work on the media focuses on the portrayal of second-wave feminism/women (see, for example, Norris 1997; Freeman 2001; Bradley 2003) or coverage of criminal law (see, for example, Benedict 1992; Fineman and McCluskey 1997; Berns 2004). 2 This analysis excludes all visuals (for example, comics and cartoons) with the exception of some photographs with under-text. Analysis of the representation of equality/equity in the “private” realm of the family is in progress. 3 For instance, Michele Landsberg, a feminist journalist at the Toronto Star from the late 1970s through the 1990s, consistently addressed the equality concerns of feminists outside the media. Margaret Wente has likewise highlighted the views of dissident, former, and anti-feminists in the Globe and Mail since the early 1990s. References “170 Chained Women Arrested in Montreal.” 1969. Toronto Star, 29 November, 1 and 3. Achbar, Mark, ed. 1994. Manufacturing Consent: Noam Chomsky and the Media. Montreal: Black Rose Press. Adams, N. John. 1974. “Bid Fails to Get Women Teachers to Admit Men as Group Members.” Globe and Mail, 8 August, W3. Adamson, Nancy, Linda Briskin, and Margaret McPhail. 1988. Feminist Organizing for Change: The Contemporary Women’s Movement in Canada. Toronto: Oxford University Press. Adler, Nancy. 1998. “Women Rise from Pink Ghetto.” Globe and Mail, 24 November, B15. Associated Press–Canadian Press–New York Times Service. 1970. “Don’t Turn Your Honey Sour, Says ‘Liberated Woman.’” Province (Vancouver), 26 August, 3. Associated Press. 1970a. “Bra-Burning a Black Eye, Old-Time Suffragette Says.” Globe and Mail, 26 August, 9. –. 1970b. “MOM Sticks Up for Men’s Rights.” Toronto Star, 4 August, 44. –. 1971. “First Two Feminine Priests May Cause Anglican Upset.” Province (Vancouver), 20 November, 49. –. 1973. “Scotland’s Libbers Whistling at Men.” Toronto Star, 17 January, 76. Bain, George. 1968. “The Ladies, Bless ‘Em.” Globe and Mail, 3 May, 6. –. 1970. “Take It Easy, Girls.” Globe and Mail, 27 August, 6. Bateson, Helen. 1982. “UBC Battle of Sexes Coming to a Draw.” Province (Vancouver), 10 January, B4. “Beauty Pageant Out, True.” 1970. Globe and Mail, 11 August, 9. Benedict, Helen. 1992. Virgin or Vamp: How the Press Covers Sex Crimes. New York: Oxford University Press.


Bermingham, John. 1990. “First for Trade Body. Vancouver Career Woman Breaks 103Year History.” Province (Vancouver), 26 June, 29. Berns, Nancy. 2004. Framing the Victim: Domestic Violence, Media, and Social Problems. Hawthorne, NY: Aldine de Gruyter. Blackmore, Jill. 1997. “Disciplining Feminism: A Look at Gender-Equity Struggles in Australian Higher Education.” In Leslie Roman and Linda Eyre, eds., Dangerous Territories: Struggles for Difference and Equality in Education, 75-98. New York: Routledge. Bourette, Susan. 1999. “Women Gain Most of Canada’s New Jobs.” Globe and Mail, 9 January, A1-2. Boyd, Susan B., ed. 1997. Challenging the Public/Private Divide, Feminism, Law and Public Policy. Toronto: University of Toronto Press. Bradley, Patricia. 2003. Mass Media and the Shaping of American Feminism, 1963-1975. Jackson: University Press of Mississippi. Braithwaite, Dennis. 1971. “A Breakthrough for Women’s Liberation.” Toronto Star, 19 November, 9. –. 1972. “Now I’m Convinced Women’s Lib Is Serious.” Toronto Star, 14 December, 9. “Breastfeeding OK’d.” 1996. Province (Vancouver), 9 January, A26. Brodsky, Gwen, and Shelagh Day. 1989. Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? Ottawa: Canadian Advisory Council on the Status of Women. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. Canadian Press. 1968. “Must Blame Ourselves for Status Inequality – Woman Politician.” Toronto Star, 30 May, 35. –. 1969a. “Cheers! All-Male Pub Room Invaded.” Globe and Mail, 20 November, W8. –. 1969b. “Woman MP in Trousers Refused Admission to Hotel.” Toronto Star, 6 November, 69. –. 1970. “Fight for Equality but Remain Feminine Women Told.” Toronto Star, 27 August, 61. –. 1971. “Ontario Gets First ‘Madam Justice.’” Toronto Star, 11 November, 1. –. 1972. “Men Claim Sex Bias in Premiums.” Toronto Star, 4 December, 74. –. 1973. “Women Move In: Toronto’s Empire Club.” Province (Vancouver), 6 January, 12. –. 1974. “Woman Reporter Gets Seat in Sports Press Box.” Toronto Star, 31 August, G2. –. 1982. “Minorities Seen Hurt by Rules.” Globe and Mail, 21 January, B21. –. 1987. “First Woman Is Selected as General.” Globe and Mail, 28 January, A3. –. 1990. “Inuit Mayor in Class by Herself: Unique Woman Shows the Way in Arctic Quebec.” The Province (Vancouver), 21 June, 36. –. 1993a. “Firing Urged for ‘Kissing Judge.’” Province (Vancouver), 25 November, A13. –. 1993b. “Rae Rethinks Equity Policy, Ad Left Out White Males.” Province (Vancouver), 16 November, A7. –. 1998a. “Ottawa’s Cold Shoulder Will Force Us to Fold, Says NAC.” Province (Vancouver), 26 November, A38. –. 1998b. “Scouts Open Door Wide to Girls.” Globe and Mail, 23 November, A14. –. 1998c. “Without Funds, NAC to Fold.” Globe and Mail, 26 November, A11. Cockburn, Lyn. 1990. “A Woman of Substance.” Province (Vancouver), 29 June, 61. –. 1992. “Flawed Hero Launches New Revolution.” Province (Vancouver), 20 February, A41. Cole, Susan. 1987. “On MufWns and Misogyny: REAL Women Get Real.” THIS Magazine 21(4): 33-36. Coleperson (sic), Thomas. 1973. “Sexist Semantics Is Labeled Absurd: Alderperson Issue.” Globe and Mail, 6 January, 5. “Commission Urged to Examine Church Discrimination of Women.” 1967. Globe and Mail, 15 June, W2. Cossman, Brenda, and Judy Fudge, eds. 2002. Privatization, Law and the Challenge to Feminism. Toronto: University of Toronto Press. Costain, Anne, Richard Braunstein, and Heidi Berggren. 1997. “Framing the Women’s

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Movement.” In Pippa Norris, ed., Women, Media and Politics, 205-20. New York: Oxford University Press. Couzens, Gerald Secor. 1988. “Women Close Equality Gap.” Globe and Mail, 4 March, A19. Coward, Rosalind. 1999. Sacred Cows: Is Feminism Relevant to the New Millennium? London: HarperCollins. Daly, Margaret. 1970. “This Scorching Dose of Feminism May Be Too Much for Most People.” Toronto Star, 15 August, 53. Del Grande, Lynda. 1973. “‘Person’ Is Dangerous Word, Woman.” Letter. Toronto Star, 11 January, 7. Denis, Claude. 1995. “‘Government Can Do Whatever It Wants’: Moral Regulation in Ralph Klein’s Alberta.” Canadian Review of Sociology and Anthropology 32(3): 365-83. Deverell, John. 1993. “Equity Push Shaken by Ad Excluding Able White Men.” Toronto Star, 13 November, A32. DiManno, Rosie. 1993. “These Crusading Women Do Not Speak for Me.” Toronto Star, 12 November, A7. Doig, John. 1969. “Judy Predicts Guerrilla War for Women’s Rights.” Toronto Star, 13 November, 1. Dowling, Donna. 1983. “Laura Sabia Is Out of Touch.” Letter. Toronto Star, 9 June, A17. “Dramatis Personae.” 1973. Editorial. Globe and Mail, 6 January, 6. Duff, Jean. 1973. “Self-Seeking Women’s Lib Should Liberate Itself, Housewife Says.” Letter. Globe and Mail, 13 January, 7. Dunphy, Catherine. 1993. “Betty Friedan’s New Crusade Fights Fear and Myths of Aging.” Toronto Star, 14 November, B13. Edge, Marc. 1992a. “Meaning Matters.” Province (Vancouver), 24 February, A3. –. 1992b. “No Sexists Need Apply.” Province (Vancouver), 24 February, A1. “Egad! Woman Minister Tries to Join the Albany Club.” 1978. Globe and Mail, 6 December, A4. “Employment Equity’s True Colours.” 1993. Editorial. Globe and Mail, 12 November, A26. Ericson, Richard, Patricia Baranek, and Janet Chan. 1989. Negotiating Control: A Study of News Sources. Toronto: University of Toronto Press. –. 1991. Representing Order, Crime, Law, and Justice in the News Media. Toronto: University of Toronto Press. Erwin, Lorna. 1993. “Neoconservatism and the Canadian Pro-Family Movement.” Canadian Review of Sociology and Anthropology 30(3): 401-20. Faludi, Susan. 1991. Backlash: The Undeclared War against American Women. New York: Crown Publishers. Ferguson, Derek. 1993a. “Job Policy Bars Whites for Years, NDP Admits.” Toronto Star, 10 November, A9. –. 1993b. “NDP Suspends Ban on White Males.” Toronto Star, 16 November, A1 and 20. Fineman, Martha, and Martha McCluskey, eds. 1997. Feminism, Media and the Law. New York: Oxford University Press. Finn, Geraldine. 1989. “Taking Gender into Account in the ‘Theatre of Terror’: Violence, Media, and the Maintenance of Male Dominance.” Canadian Journal of Women and the Law 3: 375-94. “First Woman General.” 1987. Province (Vancouver), 28 January, 56. “First Woman Named to Court of Appeal.” 1975. Toronto Star, 20 December, A3. Fitzgerald, Robin. 1993. “Constructing Fetal Personhood in the Press: A Study of the Vancouver Sun’s Coverage of Reproduction from 1969 to 1989.” MA thesis, Department of Criminology, Simon Fraser University, Burnaby, BC. Freeman, Barbara. 1994. “The Media and the Royal Commission on the Status of Women in Canada 1966-1972, Research in Progress.” Resources for Feminist Research 23(3): 3-9. –. 2001. The Satellite Sex, The Media and Women’s Issues in English Canada, 1966-1971. Waterloo, ON: Wilfrid Laurier University Press. Fudge, Judy. 2002. “From Segregation to Privatization: Equality, the Law, and Women Public Servants, 1908-2001.” In Brenda Cossman and Judy Fudge, eds., Privatization, Law, and the Challenge to Feminism, 86-127. Toronto: University of Toronto Press.


Gichuru, Peter. 1993. “If Only the Retarded Had Feminism’s Voice.” Letter. Toronto Star, 8 November, H4. Gill, Donna. 1989. “REAL Women and the Press, An Ideological Alliance of Convenience.” Canadian Journal of Communication 14(3): 1-16. Gitlin, Todd. 1980. The Whole World Is Watching, Mass Media in the Making and Unmaking of the New Left. Los Angeles: University of California Press. Goddu, Jenn. 1999. “‘Powerless, Public-Spirited Women,’ ‘Angry Feminists,’ and ‘The MufWn Lobby,’ Newspaper and Magazine Coverage of Three National Women’s Groups from 1980 to 1995.” Canadian Journal of Communication 24: 105-26. Grant, Maggie. 1970. “Down with Women’s Lib! Freedom and Equality Are Just Fine But Would You Really Want to Work on a Garbage Truck?” Province (Vancouver), 1 August, 2-4. Greer, Germaine. 1984. “The Miseries of Motherhood.” Book Excerpt. Toronto Star, 3 March, M14. Gring-Pemble, Lisa, and Diane Blair. 2000. “Best-Selling Feminisms, The Rhetorical Production of Popular Press Feminists’ Romantic Quest.” Communication Quarterly 48(4): 360-79. Hall, Stuart. 1980. “Reformism and the Legislation of Consent.” In National Deviancy Conference, ed., Permissiveness and Control, The Fate of the Sixties Legislation, 1-43. London: MacMillan. –. 1993. “Encoding, Decoding.” In Simon During, ed., The Cultural Studies Reader, 90103. London: Routledge. Hall, Stuart, et al. 1978. Policing the Crisis, Mugging, the State and Law and Order. London: MacMillan. Hammer, Rhonda. 2000. “Anti-Feminists as Media Celebrities.” Review of Education, Pedagogy and Cultural Studies 22(3): 207-22. –. 2002. Antifeminism and Family Terrorism, A Critical Feminist Perspective. Lanham: Rowman and LittleWeld. Hartley, Norman. 1969. “Protest against Bylaw, 100 Feminists Held.” Globe and Mail, 29 November, 1 and 3. –. 1983. “Nobody Speaks for All Women.” Toronto Star, 2 June, A2. “Has Diversity Gone Too Far? Multiculturalism.” 1997. Globe and Mail, 15 March, D1 and D2. Henry, Frances, and Carol Tator. 2005. “A Critical Discourse Analysis of the Globe and Mail Editorials on Employment Equity.” In Jo-Anne Lee and John Lutz, eds., Situating “Race” and Racisms in Time, Space, and Theory, 161-77. Montreal and Kingston: McGillQueen’s University Press. Herman, Edward S., and Noam Chomsky. 1988. Manufacturing Consent: The Political Economy of the Mass Media. New York: Pantheon Books. Hough, Janet. 1994. “Mistaking Liberalism for Feminism: Spousal Support in Canada.” Journal of Canadian Studies 29(2): 147-64. Huddy, Leonie. 1997. “Feminists and Feminism in the News.” In Pippa Norris, ed., Women, Media and Politics, 183-204. New York: Oxford University Press. “I’m a Feminist. True Won’t Meet Beauties.” 1970. Toronto Star, 11 August, 28. “It’s Your Move, Women’s Lib.” 1974. Province (Vancouver), 15 August, 14. Jenson, Jane, and Susan Phillips. 2001. “Redesigning the Canadian Citizenship Regime: Remaking the Institutions of Representation.” In Colin Crouch, Klaus Eder, and Damian Tambini, eds., Citizenship, Markets, and the State, 69-89. New York: Oxford University Press. Jiwani, Yasmin. 2005. “Orientalizing ‘War Talk’: Representations of the Gendered Muslim Body Post-9/11 in the Montreal Gazette.” In Jo-Anne Lee and John Lutz, eds., Situating “Race” and Racisms in Time, Space, and Theory, 178-203. Montreal and Kingston: McGill-Queen’s University Press. Johnson, N.D. 1995. “Breaking Down the Real Barriers.” Globe and Mail, 7 March, A24. Jones, Frank. 1983. “They Fight Sexual Discrimination in ‘Women Only’ Feminist Workshops.” Toronto Star, 1 June, A2.

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“Judy Lamarsh’s Black Book Is Thin, for Women of Achievement.” 1967. Globe and Mail, 2 June, 11. Kastner, Susan. 1997. “Today’s Battle of the Sexes as Fierce as Ever.” Toronto Star, 9 March, D2. Kaye, Herma Hill. 1982. “Betty Friedan’s Revisionist Vision.” The Magazine. Province (Vancouver), 31 January, 8. “Kilborn Does Want Women As ‘Aldermen.’” 1973. Toronto Star, 8 January, 25. Kirkwood, Leone. 1970a. “Feminist Predicts ‘Lots of Battles with Men’ Ahead.” Globe and Mail, 3 August, 13. –. 1970b. “Women Teachers Prepared to Fight in Courts for Administration Posts, Ontario President Says.” Globe and Mail, 12 August, 9. “Kiwanis Club Vote to Bar Women Called ‘Ridiculous’ by OfWcial.” 1987. Toronto Star, 25 June, D25. Klemesrud, Judy. 1972. “Feminists, Please Take Note, ‘the Truth Is, Secretaries Aren’t Unhappy.’” Globe and Mail, 14 December, W14. Laframboise, Donna. 1996. The Princess at the Window: A New Gender Morality. Toronto: Penguin Books. Laghi, Brian. 1997. “NWT wants Right to Appeal Costly Ruling on Pay Equity.” Globe and Mail, 25 March, A9. Landsberg, Michele. 1986. “Media Attack Straw Woman in Ridiculing Nonsexist Language.” Globe and Mail, 21 June, A2. –. 1992. “Steinem Book Insightful Look at 2,000 Years of Patriarchy.” Toronto Star, 11 February, D5. –. 1993. “Pro-White Bias Is Still Thriving in Civil Service.” Toronto Star, 19 November, D1. Lehmann-Haupt, Christopher. 1970a. “Brilliantly Conceived Book by Feminist Shows Male Chauvinists May Have Found a Formidable Foe.” Globe and Mail, 6 August, W8. –. 1970b. “He Thinks That She Protests Too Much.” Province (Vancouver), 10 August, 20. Lessard, Hester. 1999. “Farce or Tragedy? Judicial Backlash and Justice McClung.” Constitutional Forum 10(3): 65-72. Levett, Bruce. 1981. “Two Fresh Targets Pop Up for Women’s Ire.” Province (Vancouver), 1 March, A2. Lichtenstein, Grace. 1970. “Let a Dame into Mcsorley’s, and What Happens? Tradition of 116 Years Shattered.” Globe and Mail, 11 August, 1. Lilburn, Sandra, Susan Magarey, and Susan Sheridan. 2000. “Celebrity Feminism as Synthesis, Germaine Greer, The Female Eunuch and the Australian Print Media.” Continuum: Journal of Media and Cultural Studies 14(3): 335-48. Lipovenko, Dorothy. 1984. “Job Quotas for Women Recommended.” Globe and Mail, 15 March, 14. –. 1992. “Dorothy Lipovenko Finds Out What Feminism Means to Some 16-Year Old Girls.” Globe and Mail, 10 February, A16. McAteer, Michael. 1993. “Canada’s First Female Bishop Offers Hope but No Miracles.” Toronto Star, 27 November, K18. McCracken, Rosemary. 1974. “CNE Queen Not behind Liberation.” Toronto Star, 27 August, E1. McLellan, Wendy. 1994. “Steinem at 60: Feminist Welcomes New Age.” Province (Vancouver), 10 July, A17. –. 1996. “Still Glorious.” Province (Vancouver), 16 January, A2. McLintock, Barbara. 1997a. “All Eyes on Breastfeeding Case.” Province (Vancouver), 4 March, A2. –. 1997b. “Decision Due on Right to Breastfeed at Work.” Province (Vancouver), 7 March, A2. McRobbie, Angela. 2004. “Post-Feminism and Popular Culture.” Feminist Media Studies 4(3): 255-64. Mittelstaedt, Martin. 1993. “Ontario Barring White Applicants for Senior Position.” Globe and Mail, 11 November, A4. Nathanson, Paul, and Katherine K. Young. 2006. Legalizing Misandry: From Public Shame


to Systemic Discrimination against Men. Montreal and Kingston: McGill-Queen’s University Press. New York Times Service. 1970a. “The Ale Went Straight to Her Head.” Province (Vancouver), 11 August, 1. –. 1970b. “In Feminism’s Swing from Revolution to Reaction and Back, Fighting Words Have All Been Said Before.” Globe and Mail, 26 August, 9. News Services. 1986a. “A Breast Protest.” Province (Vancouver), 20 June, 22. –. 1986b. “Breast-Baring Women Busted.” Province (Vancouver), 22 June, 18. Norris, Pippa, ed. 1997. Women, Media, and Politics. New York: Oxford University Press. O’Brien, Lucy. 1999. “The Third Wave: Songs Send Feminist Message.” Province (Vancouver), 4 January, B1. Paglia, Camille. 1991. Vamps + Tramps: New Essays. New York: Vintage Books. “Pay Equity Ruling.” 1998. Editorial. Toronto Star, 19 November, A34. Pirsch-Steigerwald, Barbara. 2001. “The Rise of Neo-Liberal Discourse in Canada (19841996): Or How NAC Became a ‘Special Interest’ Group.” PhD dissertation, Department of Political Science, York University, North York, ON. Read, Jeani. 1995. “Matters of Trust on World Women’s Day.” Province (Vancouver), 6 March, A12. Reid, Malcolm. 1970. “New Feminists from the Student Left on the March to Liberate Women.” Globe and Mail, 1 August, 3. Reuters. 1970a. “Males Paid Less: Gov’t Sues.” Province (Vancouver), 25 August, 31. –. 1970b. “Sexual Equality Battle Takes a Twist as Restaurants Are Sued for Paying Women More.” Globe and Mail, 13 August, 1. Rex, Kathleen. 1969. “Feminist Group Pickets City Hall; Attempt to Meet Campbell Thwarted.” Globe and Mail, 28 November, 13. Riche, Nancy. 1997. “Equality for Women Is Still Unrealized.” Toronto Star, 7 March, A29 and A30. Roiphe, Katie. 1993. The Morning After: Sex, Fear, and Feminism on Campus. New York: Little Brown. “Rotarians Stalk Out as Woman Joins Club.” 1992. Vancouver Province, 7 February, A9. Rowan, Mary Kate. 1973. “M.C. Corbett, Esq., Unmasked.” Globe and Mail, 5 January, 12. Rowes, Barbara Gail. 1971. “University Still Man’s Domain, but Women Professors Starting to Demand Place.” Globe and Mail, 11 November, W5. Royal Commission on the Status of Women in Canada. 1970. Report of the Royal Commission on the Status of Women in Canada. Ottawa: Information Canada. Rusk, James. 1993. “Ontario Pulls Job Ad Excluding White Men.” Globe and Mail, 16 November, A8. Salutin, Rick. 1995. “The Loaded Question of Job Equity.” Globe and Mail, 17 March, D1. Scheuer, Jeffrey. 2001. The Sound Bite Society: How Television Helps the Right and Hurts the Left. New York: Routledge. “Sex Bias Is Charged in Manitoba Car Plan.” 1972. Globe and Mail, 4 December, 4. Slopen, Beverly. 1983. “Steinem’s Wit Entertains Booksellers.” Toronto Star, 19 June, G11. Smart, Carol. 1989. Feminism and the Power of Law. London: Routledge. Smyth, Ted. 1973. “‘A Personner of Persongling.’” Letter. Toronto Star, 11 January, 7. Sommers, Christina Hoff. 1994. Who Stole Feminism? How Women Have Betrayed Women. New York: Simon and Schuster. Statistics Canada. 1988. “Oh, Canada, Are Women Taking Over?” Globe and Mail, 19 March, D2. “‘Superwomen’ Can’t Win, Friedan.” 1980. Toronto Star, 22 February, C1. “TD Wins Award for Advancement of Women.” 1999. Globe and Mail, 8 January, B21. Thorsell, William. 1995. “There Are Not Two Kinds of Equality in the World.” Globe and Mail, 18 March, D6. “Time to Pay Equity’s Piper.” 1998. Editorial. Globe and Mail, 19 November, A28. “Transit Gloria?” 1972. Editorial. Globe and Mail, 21 December, 6. Turner, Janice. 1993. “User-Friendly Feminism.” Toronto Star, 29 November, C1 and C2.

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Tyler, Tracey. 1993. “‘Sexist’ Judge Must Go: Inquiry.” Toronto Star, 25 November, A1 and A4. United Press International. 1970. “Women Invade Men-Only Pub.” Toronto Star, 11 August, 3. –. 1982. “Mother of Women’s Lib Now a Fellow of Harvard.” Province (Vancouver), 29 January, B4. –. 1984a. “Men Vow to Fight Fems.” Province (Vancouver), 6 March, 34. –. 1984b. “Men’s-Rights Group Opens Vowing to Fight Feminists.” Toronto Star, 3 March, F4. “An Unprecedented Trouser Suit.” 1973. Photo. Toronto Star, 10 January, 4. Walkom, Thomas. 1993. “Barring Jobs to White Men UnjustiWable.” Toronto Star, 13 November, B5. Wall, Glenda. 2000. “Recent Representations in Popular Environmental Discourse: Individualism, Wastefulness and the Global Economy.” Canadian Review of Sociology and Anthropology 37(3): 249-65. Weiers, Margaret. 1968. “NDP Chose Her to Fight PC’s Camp.” Toronto Star, 28 May, 51. Wente, Margaret. 1993. “How to Be 72, a Lesson from Betty Friedan.” Globe and Mail, 13 November, A2. –. 1995. “Counting Your Problems? Count Your Blessings.” Globe and Mail, 11 March, A2. “White Men Need Not Apply.” 1993. Editorial. Toronto Star, 11 November, A22. “Woman, 22, Is Named Policeman of Month.” 1969. Toronto Star, 29 November, 4. “Woman’s Place Not in TTC.” 1972. Globe and Mail, 20 December, 5. “Women, Minorities Seen Gaining Top Bank Jobs.” 1989. Toronto Star, 29 August, G8. “Women’s Rights: Talk or Action?” 1974. Editorial. Province (Vancouver), 29 August, 4. Worthington, Helen. 1969. “The Feminist versus the Feminine.” Toronto Star, 8 November, 89. Zaritsky, John. 1969. “It’s a Battle of the Sexes in Ward 10.” Toronto Star, 6 November, 7.

3 Virtual Backlash: Representations of Men’s “Rights” and Feminist “Wrongs” in Cyberspace Robert Menzies The backlash is at once sophisticated and banal, deceptively “progressive” and proudly backward. It deploys both the “new” Wndings of “scientiWc research” and the dime-store moralism of yesteryear; it turns into media sound bites both the glib pronouncements of pop-psych trend-watchers and the frenzied rhetoric of New Right preachers. The backlash has succeeded in framing virtually the whole issue of women’s rights in its own language. Just as Reaganism shifted political discourse far to the right and demonized liberalism, so the backlash convinced the public that women’s “liberation” was the true contemporary American scourge – the source of an endless laundry list of personal, social, and economic problems ... [T]he antifeminist backlash has been set off not by women’s achievement of full equality but by the increased possibility that they might win it. (Faludi 1991, xviii and xx)

A few short minutes spent touring the cyber-world of men’s rights1 Web pages will unveil, for both the converted and unwary, a truly remarkable gallery of anti-feminist content. The intrepid virtual adventurer who boldly goes into these unabashedly mascul(in)ist2 spaces is quickly rewarded with a torrent of diatribes, invectives, atrocity tales, claims to entitlement, calls to arms, and prescriptions for change in the service of men, children, families, God, the past, the future, the nation, the planet, and all other things non-feminist. My last Googling in August 2006 delivered 766,000 strikes for the phrase “men’s issues,” 283,000 for “men’s rights,” 603,000 for “fathers’ rights,” and 304,000 for “anti-feminist.” Male-centred Internet-based chatrooms, discussion and message boards, listservs, and other communication forums are abundant and active. A veritable industry of resources for the “defence of men” is available at the click of a mouse (not to mention, more than occasionally, a surrendering of the requisite credit card details). Organizational, partisan, informational, resource, and rant sites by, for, and about men – and in opposition to the so-called feminist occupation – arrive in a variety of languages and originate on several continents. They are as widely distributed as the World Wide Web itself. Armed with a modem or high-speed cable access – and contingent on sensibilities,

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inclinations, and thresholds of tolerance – the cyber-traveller can partake in the offerings of literally hundreds of men’s rights forums. What is to be made of this electronic tower of men’s rights babel? Does it have signiWcance and inXuence, apart from its debatable function as a channel for ventilating men’s anger? Do these websites reXect a substantive and experiential reality beyond their techno-networks of keyboards, cables, and microchips? Do they in turn resonate back upon the feminist movement – and other progressive initiatives for social justice and change – in discernible ways? In alignment with conclusions drawn by Pierrette Bouchard, Isabelle Boily, and Marie-Claude Proulx (2003) from their Université Laval-based study of cyber-discourse on men’s rights, I argue that they do. Following Bouchard and colleagues, I contend that the hundreds of extant male-centred cyber-forums – such as the Internet more generally – represent an important context of material as well as cultural struggle for feminists, their adversaries, and allies. For all their cacophony and bluster – not to mention the extremist harangues of groups such as Faces of Feminism, Masculism Forum, Mondo Feminism, No Ma’am, and The Domain of Patriarchy on the Internet – these websites harbour potentially vital lessons about the contemporary status of feminism without, as within, the realm of cyberspace. As Sylvia Walby (1993, 79-89) notes in her groundbreaking “‘Backlash’ in Historical Context,” feminism, like other progressive movements, is a dynamic and contingent social phenomenon whose inXuence can be fathomed only by means of a fully historical, multi-sited, dialectical inquiry that addresses both its own impetus and impact and, just as importantly, how feminism meets up against complex patterns of reception, reaction, and resistance in all forms and spheres. To investigate these myriad planes of inXuence and contestation, and the relations between them, is therefore an essential element of any project such as this one. Without question, the Internet has catapulted into prominence as one of these key planes, as both a cultural and organizational medium of communication. It has become increasingly vital that we incorporate cyberspace into the study of modern social organizations and cultural movements while resisting the urge to reify or overstate its reach and consequence. Above and beyond their intrinsic salience to myriad concerns for women, a study of men’s and fathers’ websites bears on questions raised in other scholarly and community venues – for example, feminist socio-legal studies, cultural and media studies, masculinity studies, and the sociology of social movements – about the structures, customs, mores, and objectives of the men’s movement, its enlistment of the Internet as an action forum, and its relationship to feminism past, present, and future. Where and how did these organizations originate? Who are their sponsors, spokespersons, members, audiences, and critics? How do these male “rights” groups

Virtual Backlash

represent themselves, and how do they characterize the twenty-Wrst-century status of women, men, family, feminism, state, law, politics, and the social order? To what extent do their existence, ideological propensities, and preoccupations reXect wider trends in contemporary political culture, social formations, and power relations pertaining to gender, generation, race, ethnicity, social class, sexuality, and associated other axes of (sub)alterity? How do they seek to inXuence public law and policy and with what effect? What are their current status, range, and depth of inXuence and future prospects? What problems do they pose for the advancement of women’s causes? And how should feminists respond to them? The virtual advent of men’s and fathers’ interest groups also needs to be appraised in the wider context of recent trends that have been unfolding in the men and masculinity movements. Paralleling the experiences of feminisms and other “new social movements” (Laclau and Mouffe 2001; Mouffe 1992), the “men’s project” has, since its inception, encompassed a stupefyingly pluralistic and heterodox array of political and substantive approaches to the advancement of men’s consciousness, well-being, and emancipation. Strands of theory, interest, and praxis range from the contributions of socialist, pro-feminist, gay liberationist, and anti-racist organizations; to the “mythopoetic” and self-actualizing ventures of “Werce and tender men” ( Jesser 1996); to the output from a diversity of single-issue groups promoting recovery, health, and growth; to the overtly regressive, fundamentalist, “moral majoritarian,” and feminist-aversive initiatives of main concern to this current study (on the men’s movement generally, see Brittan 1989; Brod and Kaufman 1994; Clatterbaugh 2001; Collier 1996, 2003; Connell 1995; Hagan 1992; Kaufman 1993; Kimmel, Hearn, and Connell, 2004; Seidler 1994; Schwalbe 1996; Segal 1990). In canvassing the outpourings of men’s discourse and activism in these latter, more atavistic forms, it is important to remember that the right-wing orthodoxy is neither exclusive nor fully representative. Progressive branches of the men’s movement remain a vibrant and valuable source of advocacy for human rights and social justice causes on behalf of men and women alike. Pro-feminist, anti-(hetero)sexist, and other rights-promoting men’s groups have been key and constant allies of contemporary feminism since the 1970s (Digby 1998; Goldrick-Jones 2002; Kimmel 1995; Lingard and Douglas 1999; Messner 1997; Schacht and Ewing 1998). However, it is also apparent that, bolstered by the latter-day ascendancy of the “new, new right,” the neo-conservative, neo-liberal, anti-feminist, right-wing populist variants of “hegemonic masculinity” currently occupy centre stage and threaten to eclipse their “radical” and liberal brethren in both public culture and the body politic (Connell 1995). While this trend is neither unidirectional nor unchallenged, many observers have charted how the “new wave” of “pro-male” anti-feminism (which is scarcely new 3)

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has incrementally advanced to the front lines of the “gender wars” (Bertoia 1998; Bertoia and Drakich 1993; S. Boyd 2000, 2004a, 2004b; Boyd and Young 2002; Clatterbaugh 1990; Eldén 2000; Feldstein 1997; Flood 1997; Hawkesworth 1999; Kaye and Tolmie 1998a, 1998b; Messner 1998; Oakley and Mitchell 1997; Rush 1990; Stacey 1998; Wilson 1995). Informed by an especially virulent strain of secular and/or religious evangelicalism, the right-wing men’s rights impetus has been stunningly successful in colonizing the methods and discourses of human rights projects, inverting them into retrograde offensives against the aims of social justice. It has done so by appropriating and subverting long-standing progressive claims to freedom, choice, equality, democracy, life, and assorted other rights and entitlements;4 positioning men as the subjugated, scapegoated, and silenced victims of “politically correct” coalitions and coercions; rewriting HIStory as a chronicle of male retreat; attributing “men’s pain” to the (usually mythic) “gains” of women; setting up essentialized, oppositional dualisms between men and women and all that each sex/gender ostensibly represents (public versus private, rational versus emotional, responsible versus dependent, provider versus reproducer, and so forth); aligning themselves with (neo)-conservative women and women’s groups who foment against what they characterize as “radical,” “gender,” and “victim” strains of feminism (Fox-Genovese 1996; Sommers 1994, 2000; Klein 1996; McElroy 1996; Patai 1998; Roiphe 1993; Young 1999);5 disingenuously brandishing controversial Wgures such as Catharine MacKinnon, Andrea Dworkin, and Carol Gilligan as if they spoke for all feminists; colonizing the libertarian spaces of anti-statism and anti-elitism that the most recent rightist upsurge has opened up; and, while railing against the “masculinization” of powerlessness and poverty, palpably ignoring the structured and systemic conditions of social oppression and repression – and their manifestations in classism, (hetero)sexism, racism, ethnocentrism, colonialism, ageism, and ableism – as they continue to plague the lives of both women and men worldwide. The abundance of writings that this movement has spawned – both original (Baumli 1985; Doyle 1976; Farrell 1986, 1993, 1999; H. Goldberg 1976, 1991; S. Goldberg 1974; McCraken 1972; Neely 1981; Wilson 1980) and derivative (N. Boyd 2004; Fitzgerald 1999; Gordon 1982; Horowitz and Collier 1994; Johnson 1997; Millard 1995; Smith 1998; Zohrab 2002; Zubaty 2001) – collectively invokes a politics of profound nostalgia. The discourse of the mascul(in)ist advocates is thick with messages of loss, decline, entropy, good times stolen or forgotten, and a retreat from prosperity and order. They call to the common sense and sensibility of the modern “everyman”6 and the supposed majority of right-thinking women, who must liberate themselves from the decades of cumulative brainwashing on the part of censorious, supremacist feminists and “femilackeys,”

Virtual Backlash

that they might respectively return to the balance,7 security, and stability of their (pre)ordained gender roles. Cyberspace has proven itself to be an eminently fertile forum for the “backlash” movement in conveying its messages and realizing its goals. Men’s rights groups have been highly successful in mobilizing the World Wide Web to enlarge their terrain of inXuence, recruit constituencies of support, establish “virtual communities,” and disseminate their wares and views. This medium seems ideally suited to the goals of mascul(in)ist groups, as it is for other new social movements. The landscape and frontiers of the Internet, and its population of potential consumers and participants, seem virtually boundless (at last count in mid-2005, Google was scanning more than eight billion Web pages – more than the entire human population of the planet). Moreover, this electronic domain is ripe with potential for right-wing populist activism. Like the other institutions and social venues canvassed in this book – and for all of the rhetoric about hyperreality, technological levelling, and democratic modes of communication – cyberspace remains an intensely gendered, classed, racialized, and otherwise stratiWed environment. It is also a site of contestation, reXecting political and cultural struggles that rage on in materially lived spaces. Researching Men’s Rights Cyber-Sites This chapter reports on a survey of international on-line advocacy organizations associated with the men’s rights movements. Following Walby (1993, 79), I address the “backlash” phenomenon embedded in these sites – and in organizational and public culture more generally – not only as a form of “resistance,” but more inherently as an illustration of the “renewed determination by patriarchal forces to maintain and increase the subordination of women.” I argue that this movement, as actualized in the words and deeds of mascul(in)ist associations, “experts,” and advocates, must be viewed against the background of the contemporary resurgence of neo-liberal politics, the re-ascendancy of the new Right, radically shifting understandings of a gendered and responsibilized citizenship, a reemerging politics of ressentiment and moral nostalgia (Friedenberg 1975), and the modern revolution in communication cyber-technology. The content of these sites, which range widely in subject matter, ideological leanings, and depictions of feminism, comprises a rich and virtually untapped source of knowledge about the status of mascul(in)ism as a new social movement. These domains of masculine protest and advocacy yield an extraordinary wealth of data on the structures, memberships, preoccupations, values, and objectives of English-language men’s rights forces around the world. The websites reviewed below deliver many chilling (and revealing) observations and prescriptions about the condition and future of sex and gender in the early twenty-Wrst century. These include a litany of millenarian

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pronouncements to the effect that women’s political and legal inXuence in contemporary society has surpassed that of men; that the modern state along with its educational, judicial, medical, social welfare, and other institutions discriminate actively against the male sex; that feminism comprises an ideological and material danger to the (North) American (and global) way of life; that feminists wholly monopolize the cultural realm and thereby inhibit free speech and all related liberties; that feminism imperils the family, nation, religious, and moral order; that men’s and boys’ reputation, health, security, and safety are all in grave and mortal jeopardy; and that the only salvation from an otherwise inevitable decimation is to resist the matriarchy at all costs and in the interests of males (and females) everywhere. This study enlists methodologies nurtured in the context of qualitative documentary research, cultural studies, and cyber-ethnography to reconnoitre and canvass the content of a non-random sample of men’s websites operating on the World Wide Web during the summer of 2001. (The URLs for all websites are listed at the end of the chapter.) In what follows, I adopt a Xexible, multi-dimensional approach informed by “grounded theory” literature and qualitative documentary analysis methods to inquire into the linguistic and graphic presentations of selected men’s rights websites (Altheide 1996, 2002; Berger 1991; Dey 1999; Glaser and Strauss 1967; Strauss and Corbin 1998). In combining overviews of site content with close analyses of discourse and iconography, I consider how the Internet functions as a forum of anti-feminist activism. I thematically review the main ideas, images, and messages about feminism, gender relations, sexuality, equity, and social justice that permeate these virtual venues. In recognition of the blended, interactive, poly-sensory nature of the medium, I make no attempt to analyze text and graphics separately but, instead, freely intersperse references to selected discourse and imagery throughout the discussion. Alongside the content of websites recruited, I incorporate readings of assorted secondary materials hostile to feminism, including selections from the “scientiWc” literature, popular journals, print media, radio and television interviews, and academic research. Following a protracted initial “pilot” period, during which my research assistants and I used search engines and links to negotiate the e-community of men and fathers against feminists – and to chart the ever-evolving complexes of Web groups, listservs, and other postings relevant to the topic – we seized on Wve independent, but not mutually discrete, cyber-lists that were on-line and publicly available in June and July 2001. These were (with the total original number of afWliated sites for each in parentheses) the Men’s Ring (83); the Men’s Center (132); the Fathers’ World Ring (136); the WWW Virtual Library: Men’s Movement Organizations (123); and the Fathers’ Rights Network (45). Over a period of four weeks, research assistant

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Susanna Steinitz compiled, cross-referenced, winnowed down, and shepherded the constituent sites into a Wnal sample. To survive the culling process, a given website needed to meet two criteria: (1) it had to be involved in lobbying and activism on behalf of men’s rights issues; and (2) an English-language version of its content needed to be available. Neither geographical limits nor ideological or political measuring sticks were imposed on sample inclusion. Given the focus on advocacy groups and organizations, however, we jettisoned dozens of sites that were of much intrinsic interest in their own right but less centrally germane to the project. Further, some advocacy sites failed to load properly, or had already shut down or exited the network. Redundant listings of the same site were collapsed into just one appearance in the Wnal sample. Ultimately, this process culminated in a collection of seventy-three men’s rights websites, which comprised fourteen sites from the Men’s Ring, seventeen from the Men’s Center (recently renamed the Male AfWrmative Resource Network), twenty-one from the Father’s World Ring, Wfteen from the WWW Virtual Library, and six from the Fathers’ Rights Network. We were conWdent that this resulting anthology of men’s virtual groups was wide enough to embrace the majority of “super-sites” that were of most inXuence within mascul(in)ist constituencies (and recognized as such by the Web- and ringmasters), while, at the same time, capturing a broad diversity of substantive pursuits and ideological leanings. Indeed, the collected sites were far from being uniformly antagonistic to feminism. Three (the European Men ProFeminist Network, Men for Change, and the National Organization of Men against Sexism) actively advanced women’s causes. Others were relatively indifferent on the subject of feminism or ignored women entirely while campaigning for men’s rights. The Promise Keepers, for its part, is an essentially religious domain with explicitly spiritual – if inherently conservative, evangelical, pro-family and pro-life – messages for men and fathers (Bartkowski 2004; Brickner 1999; Lundskow 2002). Other sites focused on single-issue so-called “health and safety” promotion (Intact, Doctors Opposing Circumcision, National Organization to Halt the Abuse and Routine Mutilation of Males, and National Organization on Male Sexual Victimization) or promoting and extolling the virtues of good fatherhood (Center on Fathering, Fatherhood Project, and Fathers’ Network). The diversity of world views among the sample of seventy-three sites certainly reXects the breadth and complexity of the men’s movement more generally. But also notable is the numerical and ideological dominance of an avowedly anti-feminist, and habitually misogynistic, impetus. The large preponderance of the sample, as selected titles intimate – American Coalition for Fathers and Children, Australian Men’s Party, Fathers 4 Equal Rights, Fathers Are Capable Too, Fathers Battling Injustice, Legalize Choice

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for Men, Men’s Defence Association, National Coalition of Free Men, Shatterd Men, and Texas Fathers for Equal Rights – could not be more explicit about the gendered battle lines they have drawn. The task in analyzing these websites was to identify and extract key galvanizing concepts, themes, trends, and implications from the monumental arsenals of textual and visual content – comprising literally thousands of pages in total – that these organizations had uploaded for public viewing. In order to frame the analysis within this book’s main themes, I concentrated on sampled men’s rights organizations with anti-feminism as a self-professed agenda (excluding the pro-feminist and neutral groups, fathers’ resource pages, religious sites, men’s health and victimization sites, and other permutations beyond my purview). Even within these parameters, the discussion is far from exhaustive. I provide a skeletal overview, extracting a few general themes and conveying an overall impression of prevailing ideological and substantive content, structure, imagery, and style of presentation. Through the application of grounded theory methodologies (Dey 1999; Glaser and Strauss 1967; Strauss and Corbin 1998), a few core preoccupations and rhetorical-representational clusters began to coalesce. Below I enlist and integrate these overarching discursive and iconographic themes to consider how the men’s rights organizations characterize, make sense of, and endeavour to contest feminism, feminist women, and the multitude of causes they represent. Mascul(in)ist (Re)Constructions of Feminism and Feminists Feminism Is Defamatory, Oppressive, and Obsolete According to the inimitable Peter Zohrab, author of Sex, Lies and Feminism (2002) and secretary of the former New Zealand Men for Equal Rights Association (now the New Zealand Equality Education Foundation), feminism is best deWned as “the State ideology whereby women have rights, men have responsibilities, and children have their lives ruined” (New Zealand Men for Equal Rights Association website). In this brave neo-conservative world of men’s rights, the feminist conquest of the public realm has been unconditional. Ideologically motivated radical gender feminists,8 they claim, have succeeded wholesale in colonizing the pillars of political power and displacing men, children, and families from the social agenda. For their part, men and fathers get re-constructed as the collective casualties of a feminist-driven politic that operates simultaneously through the concerted forces of women’s groups, mass media, criminal and civil courts, universities, and governments. “By viewing men as subhuman oppressors,” contends the Dick Freeman website operating out of Victoria, British Columbia, “we avoid guilt or remorse when men die prematurely or suffer at the hand of others.” Since women have come to dominate state structures of

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all kinds and since they “openly despise fatherhood” (Fathers Manifesto website), it has come to pass that ofWcial discourse, policy, and practice now function to erode and distort traditional gender structures and relations to the advantage of a vocal minority of radical women. As a consequence, advocates argue that the movement against feminism must mobilize in defence of core social values in order to re-establish a world where men and fathers are once again valued as contributing citizens. Misandry has become a core operative construct of the on-line men’s rights movement, as it has beyond these new frontiers of cyberspace (Nathanson and Young 2001). If an age of misogyny ever did exist, asserts the mascul(in)ist credo, it has long given way to a forbidding new epoch where the intolerant values of misandrous women (and their male gendertraitor “femidupes”) are Wrmly ensconced in cultural consciousness. In negotiating these sites, we become eyewitnesses to an avalanche of litanies, aphorisms, expert renderings, academic essays, statistical proWles, dramatic narratives, and Wrst-person accounts of repression, abuse, misinformation, false accusation, discrimination, and general hate-mongering visited by disproportionately powerful (radical feminist) women upon men. In the process, we learn about feminism’s complicity in the subjugation, decline, and potential demise of the modern male. From BC Fathers, for instance, we discover that men: • • • • • • • • •

routinely have children taken away from them in custody trials are prevented from defending their children against abusers are forced into paternity, with no legal equivalent to abortion lead in the top Wfteen major causes of death, yet get less medical funding support serve prison sentences twice as long as women for the same crimes perform the most hazardous of jobs (the “death professions”) have a lower average net worth than women heads of households constitute 85 percent of the homeless lack “status of men” ministries in national governments

To be a man in a culture of misandry is evidently to be perpetually beleaguered, reviled, and endangered. For its part, in ways both moral and epistemological, feminism is, at its core, about the promotion of hatred and untruth. In contrast, men and fathers stand for a better world where the sexes might co-exist in harmony and where a politics of exclusion would no longer prevail. “I would hope that nothing within our website represents hatred for women,” avers Floridian Kenneth R. Pangborn, founder and operator of the A-Team website, “[n]othing here is intended that way. We do hate the LIES of feminism about us, about men and about fathers. And I suppose about the family and the structure of human civilization.

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They have made the word ‘Patriarchy’ dirty by ascribing untrue things to it. And by rewriting history to suit an agenda of hate. Some day the world will be a more rational place and men and women can sit as brother and sister without the angry rhetoric of strident feminists.” A recurring theme within the on-line men’s pantheon is the Wctive bifurcation of feminism into oppositional camps of good (or at least anodine) women and their evil sisters. Coupled with this motif is the contention that recent poisonous strains of male-aversive feminism are a corruption of earlier, more temperate incarnations of the movement that had long beneWted from the naïve assistance of unsuspecting men. Rewriting history, exponents depict themselves as lovers of women and long-time sponsors of the campaign for gender equality, who have sadly been obliged to at last speak out against the mutation of (radical) feminism into a power-acquisitive and lifedisafWrming caricature of its former moderate self. Indeed, men’s rights activists such as Warren Farrell (1993, 1999) have incorporated this narrative of feminist decadence and betrayal as a core element of their discourse. Inverting the conventional “post-feminist” preamble of the 1980s and 1990s, “I’m a feminist, but ...” has become the governing adage of malecentred identity politics. In the process, contemporary feminism gets reconWgured as a good idea gone wrong and men are depicted as the offended victims of a disingenuous historical hoax. “Men have supported the very just goal of equality for both sexes,” intones the Men’s Rights Agency in Australia, “only to Wnd the tables turning on them as extremists push for feminist advancement ahead of all other considerations.” Moreover, as decried by the Men’s Media Network, “[t]he women’s movement expanded its position from a simple demand for equal ... rights for women to an adversarial critique of society itself, ending in its contemporary and divisive revolutionary program for the transformation of that society into one based on wholly theoretical notions of the claimed defects of ‘male’ attributes and culture, the logical outcome of which, by deWnition, will be the oppression of men.” Michael Hart, quoted in the Australian Men’s Party website, reXects on how men have been hoodwinked and become complicit in the feminist project. “Males,” he observes, “particularly males who serve the community as parliamentarians, have been conditioned from birth to be protective of the needs of women and children. They have NOT been conditioned to be protective of men.” This same site charts the “evil” advance of feminist women through the arc of history towards their present-day political supremacy: “Any philosophy that proudly ignores the suffering of half of humanity is evil. Feminism has taken deeply held prejudice against men and women and ampliWed them a thousand fold, all in the name of so called ‘gender equality.’ In reality this movement has set back true gender-equality by hundreds of years. First-wave feminism blamed all women’s problems on men; second-wave

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feminism blamed all the world’s problems on men; third-wave feminism blamed all men’s problems on men.” In contrast to the “equity” feminist of mascul(in)ist-constructed memory – a reasonable and restrained, but long-since-displaced forerunner to her contemporary counterparts – the new-wave feminist is an unadulterated power-monger. In the rhetoric and imagery that spill across the pages of these sites, we witness the full force of untrammeled lethal feminism. The caricatures that decorate assorted men’s rights sites represent activist women variously as “feminazis” engulWng the planet; as towering leviathans imposing their odious women’s studies agendae; as humourless NOW meanies stiXing the voice of men; and as menacing harpies glaring ominously through the universal symbol of womanhood.9 We learn unambiguously that twenty-Wrst-century brands of feminism are the mutant and obsolete end-products of a twentiethcentury militant agenda gone terribly awry. Such ideas and aspirations have no place, maintain the men’s rightists, in a contemporary world that has long since discarded their life-disafWrming agenda. Feminism Threatens the Nation We compiled the content from these seventy-three websites just over a month in advance of 11 September 2001. However, even before the terrorist attack on the World Trade Center and the nationalistic fervour that it incited, it was evident that notions of liberty, patriotism, and good citizenship were deeply etched into the doctrine of men’s rights groups. Jingoistic rhetoric and imagery are festooned all over websites originating in many countries canvassed in this survey, but they are especially dominant in the displays of United States organizations. Visual displays repeatedly combine the insignia of patriotism with illustrations of struggle waged against potent enemies. An iconography of nationalist discourse, virtual Xag waving, US American red, white, and blue, and assorted other tribalist symbols of a people besieged are commonplace. The “American” way of life becomes a moral bastion for the defence of men, children, families, democracy, and the wider social order. Even if feminism (like Saddam Hussein) cannot be directly linked to terrorism, it nonetheless gets depicted as being a weapon of mass destruction, jeopardizing the nation in ways that are immanently dangerous and cannot be ignored. Feminists Wnd themselves being cast beyond the pale of good nationhood and citizenship, as a neo-conservative politics of nostalgia dovetails with neo-liberal condemnations of the “nanny state” to draw a line between those who uphold and imperil all things American (and Canadian, Australian, British, and so on). Correspondingly, the regime of “political correctness” manufactured by a cabal of feminists, liberals, intellectuals, media pundits, civil libertarians, and their ilk threatens to strangle the values of independence and freedom that are endemic to

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national progress. As ominously foretold by the Men’s Defence Association website: “If the current liberal, politically correct trends continue, it will mean an end to the traditional family as the fundamental unit of society, signiWcant loss of individual freedoms as established by our Constitution, and possible return to a Dark Age society. The overwhelming feminization of society is rapidly leading to a replacement of rule by law with rule by emotion.” For its adherents, the campaign for men’s rights is ultimately a struggle over the fate of the nation. Fatherhood, children, and families are the core ingredients of the polity, as they are of civil society, and their fall from grace is seen as the harbinger of a failing social order. Innumerable accounts of a nation gone astray traverse these electronic venues. From the Pennsylvania Family Court Reform website,10 we learn of the radical feminist lesbian communist conspiracy to corrupt social laws and policies related to family life: “Our government, due to pressure from radical feminists, man hating lesbians, and hateful, vindictive ex wives, has developed a trend in taking everything from men in divorce and giving it ALL to women (Communism? Legalized extortion maybe?).” The historical fallacy of feminists, according to the National Coalition of Free Men website, resides in their ideologically myopic and doctrinal conception of gender history. “From within socialism,” they afWrm, “feminism devised an oversimplistic view of the world that divided it into bad men and good women. Because of its commitment to ideology it never developed the capacity for consideration of the larger picture that includes men and women in a complementary struggle for survival.” For the “progressive social decay ... that is being recognized increasingly and emphatically as being the result of the marginalization of the men’s roles,” the National Organization for Men (NOM) website holds accountable “the spinelessness and opportunism of many politicians, media producers, school administrators and governmental agencies.” The NOM pundits enlist the reXections of George W. Bush, Jr., on the contemporary liberal cultural war against moral familial tradition: “Over the last generation popular culture has devalued the family and the role of fathers in the lives of their children. Fatherless homes have become a national epidemic and our nation has paid a high price.”11 In the eyes of NOM and all other self-appointed male defenders of patriotic homeland values, feminism is un-American. Full stop. Nor is the hyper-nativist rhetoric conWned to men’s groups stationed in the United States. Writing in the Canadian context, the Victoria Men’s Centre offers the following depiction of a hybrid Darwinian-Orwellian fanatical state order dedicated to obliterating all vestiges of a dying prefeminist open culture: “When the state appoints itself surrogate father it is little wonder that it should unleash a reign of terror to eliminate its

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competitors. Nor is it surprising that the matriarchy constructed under the protective wing of government should use its main source of power – children – as weapons to crush the hated “patriarchy” and erect a bureaucratic police state.” In a dazzling reconstitution of recent political history, feminist women are thereby seen to have succeeded in inscribing their gender-slanted beliefs and practices into the very foundations of state policy. In the men’s rights universe, feminists have become the imperial colonizers and engineers of the modern state, while their male counterparts are left to fend for themselves in an increasingly peripheral private realm. According to the mascul(in)ist political narrative of the United Kingdom Men’s Movement (UKMM), afWrmative action and related socio-economic programs that favour women and other “special interest groups” have “actively supported radical feminist objectives,” thereby contributing to the erosion and annulment of men’s citizenship. Spokesmen for the UKMM observe how this country has come to be “controlled by an unelected minority” and declare that “we the [male?] people must again assert our authority and restore democratic control over the Government.” A renaissance of men, therefore, is predicated on successfully reclaiming the lost citizenship rights of a defeated democratic order. Men will repossess their just share of inXuence and power only when the state again commits to legal principles of formal equality; when it restores and upholds autonomy, choice, and freedom of expression for men; and when it reasserts an ethos of competitive independence within the boundaries of a balanced and libertarian social fabric. Feminism Is an Affront to Christianity Neo-conservatism is the fail-safe ideology of men’s rights pundits. For those who seek to assail the effronteries of feminism, neo-conservatism ultimately affords a far more reliable and stable set of governing precepts than does neo-liberalism. The latter’s doctrines of individual responsibility, self-reliance, free marketeering, and state minimalism have the unsettling habit of rebounding against mascul(in)ists in unanticipated and contradictory ways – exposing, for example, the extent to which men are themselves dependent on the regulatory and provisory functions of the state. But when invoking the hyped-up moralism and anti-modernism that epitomize the conservative movement of twenty-Wrst-century vintage, men’s rightists are on Wrm and hauntingly familiar terrain. The cornerstone of neo-con doctrine – at least in North America, Europe, and the Antipodes – is its brandishing of a (male, invariably white, and presumably heterosexual) Christian God as the sole and Wnal arbiter of all things moral, righteous, just, and pure. And this deity is evidently not a friend of feminists (as the Shatterd Men website proclaims, “[t]he Christian feminist”

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is “an oxymoron”). Though generally concerned with worldly issues, the men’s rights cyber-pages pulsate with the undercurrents of resurgent religiosity. Even on the most secular of anti-feminist sites, moral fundamentalism expresses itself in dynamic ways. God may not always be invoked by name, but his presumed policy positions on marriage, family, sexuality, abortion, women and work, and assorted other contentious issues are patently clear. Recurrently, demonizing language and graphic imagery denote an abiding aversion among these men’s rights groups to all forms of rampant modernism and humanism (read feminism). Scattered throughout the sites, we encounter apocalyptic visual metaphors of holy war, of men as slayers of dragons and crusaders against an inWdel foe, and of gendered struggles over the fate of the earth.12 Organizations such as Promise Keepers pledge to promote the holy familial trinity of father, mother, and child. DADS Against Discrimination conWdently declares that “[f]athers have a God given natural ability to raise their own children.” “God bless you,” encouragingly pronounces Children and Fathers Together to its paternal readership, “as you Wght for your children.” Make no mistake about it, God stands resolutely on the side of men’s rights. In its most extremist forms, the neo-conservative religiosity galvanizes into a censorious rant against the general de-Christianization of society (read the United States), alongside the countless perceived moral transgressions of feminists and their Godless, proXigate heathen ilk. For the evangelical, openly anti-Semitic, and (to no great surprise) unabashedly misogynistic Fathers Manifesto domain, feminism is an “abomination before God,” and the feminist-fuelled state war on families is an atrocity against Christianity: “The Bible is unequivocal about the role of the father in the family, the role of the family in society, and the responsibility of children to families and society,” they assert. “It describes in every way the responsibility of a Christian in society, the role of a wife and mother, the meaning of the Ten Commandments, and the tyranny of anti-Christian courts.” Fathers Manifesto concocts historical pseudo-narratives of identity, citizenship, and nationhood lost – a precipitous fall from divine grace in which family, religion, and God-made law have disintegrated under the latter-day barrage of revisionism, secularism, humanism, communism, feminism, and all other adversaries of the Christian way. “Our Founding Forefathers,” they write, “relied heavily on the ability of the Holy Bible to maintain social order while the Constitution focused on restricting the raw power of government. They took the pains to add the Bill of Rights to the Constitution through the First Amendment to guarantee ‘free exercise [of religion],’ the most important part of which was family structure, the basic building block of every culture.” And, of course, the position of women in such an erstwhile theocratic order was clearly spelled out for all to honour and uphold:

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Neither the Holy Bible nor the Constitution preach or even remotely suggest “gender equality.” On the contrary, our Founding Forefathers debated the idea of giving women the vote and rejected it. The Holy Bible goes to great lengths to explain why and how women should be revered, but not put in positions of authority nor responsibility over men. The Constitution accepted and secured the role of the father in the family by putting him in charge of a family in which no bureaucrat could intercede. The two centuries of unprecedented economic growth of the US economy which followed was the inevitable result.

By “[r]eplacing Christianity with feminism,” continue the Fathers Manifesto spokesmen, the anti-religious left has succeeded in perpetrating “an insult to Christians and a national disgrace.” Only by waging all-out war on feminists, and re-ensconcing the patriarch, can God-fearing men and their devout women allies reverse this national decline towards an otherwise inevitable oblivion. “The US has the potential to reestablish its world economic superpower status again,” they conclude, “but it must abolish destructive feminist ideology and replace it with productive and proven Christian family principles.” Fathers must re-ascend to their (pre)ordained role as heads of family, bible and prayer must return to the public schools, the exercise of religion must once again be “free” for all, and feministinspired legal tyrannies (such as equal pay and afWrmative action) must end. In short, God (and) the Father must make a second coming to the modern world, on a holy mission aimed at smiting down the impious feminist. Feminism Strikes at Fatherhood and Family As incessantly broadcast through “male-friendly” cyberspace, the idealized, naturalized family is a two-parent, heterosexual, father-headed, privatized, sacred, and bio-genetically pristine bastion of moral constancy – Christopher Lasch’s (1977) haven in a heartless world par excellence. However, this crucible of decency, civilization, and godliness is in danger of extinction, report the men’s rights activists, as families disintegrate by the millions; as the matriarchy takes ever Wrmer command; as socialized governments, parasitical lawyers, feminized judges and prosecutors, terrorist social service agencies, and out-of-touch academics array themselves in corrupt opposition; and as children are left to fend without fathers in their lives. Visions of an erstwhile nuclear and (at least for women) monogamous heterosexual family life, lost but unforgotten, are ubiquitous in these mascul(in)ist realms. The idealized normative families of the men’s rights imagination – in the words of George W. Bush, Sr., “the ‘little platoons’ to which we all belong”13 – have been allegedly torn asunder by feminism’s legacy of separation, divorce, gender-biased custody and access laws, and the mass exodus of women from hearth and home into the public

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sphere. In the aftermath, the family has devolved into a dangerous and forbidden place for the “shattterd men” who are left behind and alone. Reconstituting the familiar, if antiquated, conservative argot, these men’s virtual pages depict beleaguered fathers and children who stand united in resistance against feminist incursions and in defence of family, Xag, and nation. In seemingly omnipresent caricatures, young hands clutch the outstretched hands and Wngers of their dads. In prototypical sites originating in Canada, family unity, male centrality, fatherhood, protection, patriotism, and nationhood predominate and intermingle. A natural-world metaphor adorning the Fathers Are Capable Too home page shows the penguin father standing vigilantly over the helpless (male?) chick. As the nameless “poster child” for the Entraide Pères – Enfants Séparés (ENPES) website, hosted in Hull Québec, a young boy points hopefully upward towards some indeterminate source of solace. On the BC Fathers/Dick Freeman website of Ken Wiebe and colleagues in Victoria, British Columbia, a (male?) infant directs a middle Wnger deWantly skyward alongside the message “Get the Hint?”; an anonymous gagged man struggles in vain to make his mufXed lamentations heard; and the colossal, fascist hand of “radical liberal feminism colluding with the courts” plucks the hapless father from an already boarded-up home, while his plaintive, Dickensian children reach out for him hopelessly. The Victoria Men’s Centre, for its part, deploys narrative text in its condemnation of the state’s intrusion into familial terrain: “When the state appoints itself surrogate father,” the author intones, “it is little wonder that it should unleash a reign of terror to eliminate its competitors. Nor is it surprising that the matriarchy constructed under the protective wing of government should use its main source of power – children – as weapons to crush the hated ‘patriarchy’ and erect a bureaucratic police state.” The American Coalition for Fathers and Children observes that “[a]ntifamily laws have led to everyday legal and political predation on fathers, families, and second families – nearly 1.2 million divorces in 1992 alone – weakening the futures of men, women, and children.” For these advocates and (ostensibly) the countless men they represent, the family has regressed into a father-toxic zone where men are seldom seen and virtually never heard (of). Despite the fact that “kids need fathers, not visitors” (Fathers Battling Injustice) and “a father is a terrible thing to waste” (Chippewa Valley Fathers Rights), fatherlessness has become “the most harmful demographic trend of this generation” (Fathers Are Capable Too). “We are becoming a Dadless society,” laments Fathers and Children Together: “This country has a severe case of VD, vanishing dad. This disease is ravaging the Wber of society while infecting our children. We see more violence, less direction and more unwed mothers.” For its part, the family court, with its gaggle of misandrous rules, procedures, and personnel,

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is a “far more dangerous place for men than any battleWeld they’ll ever serve on” (Separated Parents Access and Resource Center). Divorced, separated, non-custodial, abandoned fathers, already scarred by their subservience to women within and without the family, are Wnding that women-occupied courts have reduced them to the lowly status of paycheck slavery. Meanwhile, it is the children who suffer most from their fathers’ loss. The campaign to re-empower the modern man gets routinely framed as a movement in the interest of children’s rights. “Help us in our effort,” pleads the Children’s Rights Council, “to enhance a child’s chance of life with two parents and full extended family.” With their motto “preserving the integrity of fatherhood for the sake of the children,” the Men’s Educational Support Association of Calgary, links the undermining of the traditional family, and the ascendancy of feminized family law, to the modern destruction of childhood: “These have become very difWcult times for traditional families with anti-family rhetoric and the adversarial family law system contributing to high rates of domestic conXict and divorce. The resulting distress from these conXicts has a particularly traumatic effect on children especially when their parents are struggling with unresolved issues of custody and access.” The only recourse for men and children, the believers maintain, is to promote a neo-conservative, re-nuclearized vision of family as an autonomous unit functioning freely outside a minimalist, hands-off, neo-liberal state order. In order that the family might once again Xourish as the bastion of civilization that God intended, men and women must both resume their respective gender roles in a government-free domestic zone. On this point, the ENPES group offers inspirational words of succor and resistance: “If you hold a gun to my head, I will comply with your demands of me that I perform work for a master force. However, I do so as a slave and not out of moral obligation. Kidnap my children and enslave me, if you can continue to pull this off legally. But don’t try to sell this to me as being my moral obligation.” At the same time, whenever spousal relationships do dissolve, shared and equal parenting must continue in the interests of the child. Hence, we Wnd Texas Fathers for Equal Rights committing “to strengthen families and ensure primacy of parental moral authority in the raising of children” and “to diminish the role of government/judiciary in family affairs.” Similarly, DADS Against Discrimination subscribes to a higher sacred imperative that prevails over (wo)man-made, family-phobic law: “Because states provide men and women no choice of marriage contracts with their marriage license, DADS herewith pledges to PRESERVE, PROTECT, and DEFEND the FATHER headed family, and to pass the history of FATHERHOOD to subsequent generations.” The United Kingdom Men’s Movement and the (former) New Zealand Men for Equal Rights Association, respectively, advocate reforming taxation structures to “encourage and support traditional 2 parent

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families.” “Tax law,” proclaims the latter’s Peter Zohrab, “should not discriminate against the two-parent, one-income family. Family income should be taxed as one unit.” Even women, optimistically observes the American Coalition for Fathers and Children, are capable of absorbing these crucial lessons and responding accordingly: “Many women are now working very hard to get government out of the family, and to restore the intact family, absent the fetters of governmental social and economic invasion.” And, of course, no one need be reminded that “fathers are capable too.” Feminism Monopolizes the Media and Throttles Free Speech Ironically enough, given the profoundly malestream origins, properties, and social impact of cyberspace (as with other mass communication systems), these Web-based organizations almost uniformly assign blame for men’s devaluation, in large part, to a feminist-dominated, censorious, fearmongering, hate-perpetrating electronic and print media. In a quite spectacular feat of epistemological capsizing, the “liberal” media’s (at best rather difWdent) involvement in progressive causes, including the advancement of women’s rights, gets reframed as an ideological, authoritarian conspiracy aimed at consolidating the matriarchy and stiXing all manner of male protest. The “starting point” for organizations such as the Men’s Media Network, according to its home page, is the quasi-totalitarian domination of the media in respect of gender issues by feminist advocates and their sympathisers, a virtual annexation of political mass consciousness unprecedented in, and incompatible with, a democratic society in any meaningful sense of the word. The net effect of this ideological stranglehold is a sinister culture of persistent degradation of men and masculinity, a feature of everyday life which has become so pervasive and mundane as to form a critical and largely unchallenged part of the received wisdom which informs our laws and cultural norms, and which provides the cornerstone for the foundation of a feminist matriarchy, the hegemony of which in some respects has already begun.

Seemingly endless permutations of libertarian claims about hegemonic “political correctness” politics permeate these websites. In yet another appropriation and inversion of political imagery intrinsic to the women’s movement, site graphics depict men being gagged, muted, stiXed, and otherwise rendered silent, often explicitly by female oppressors such as the National Organization for Women. Paul Laird writes on the same Men’s Media Network website that “[t]o linguistically unseat the enemy, feminists had to strenuously corrupt the very rules of linguistics, the most basic of which holds that all communication consists of a sender, a receiver, and a relationship between the two. Political correctness, in constricting

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the ability of the sender to communicate fully and for the receiver to comprehend fully, became the classic feminist castration metaphor.” The outgrowth of this radical feminist monopoly over the cultural terrain, declare the dissenters, is the homogenization of public discourse into a one-sided dogma that propagandizes women’s privileges, and renders men either speechless or unheard. According to Warren Farrell, an Orwellian “lace curtain” of governing “femspeak” is virtually indistinguishable from the propaganda machinery of tyranny states. As quoted on the Dick Freeman website, Farrell imparts this novel twist on Winston Churchill’s historically infamous metaphor: “The Iron Curtain shut out opinions considered to be a threat to communism. The Lace Curtain shuts out opinions considered to be a threat to feminism. In an Iron Curtain country, Capitalistbashing was the norm. In a Lace Curtain country, man-bashing is the norm.” Facing down this feminist legacy of untruths, and the myriad oppressions that it conceals, the men’s rights website masters have launched themselves on a righteous mission of public (re)-education through the “alternative” medium of the Internet. Consistent with their depictions of men’s victimization and cultural struggle, advocates exhort men to arm themselves with the intelligence and reason that will free them from the reins of feminist ideology and oppression. Women, too, must be deprogrammed before they can fully disengage from the lies that have positioned them in such violent opposition to the masculine minority, the nation, God, their own children, and themselves. These sites, like other organs of the men’s rights movement, offer to impart the knowledge, wisdom, and power needed to overcome feminist coercion and realize men’s liberation from slander and servitude. Feminism Subverts Men’s Rights and Unleashes Judicial Bias In yet another inventive implosion of feminist and progressive philosophy, these websites chronically frame their claims to empowerment in the name of social justice and human rights. Within these mascul(in)ist venues, rights of citizenship and formal legal equality have become code words for the maintenance of power relations and resistance against the women’s movement.14 Rights discourse is everywhere in evidence. Men’s and fathers’ groups allege that a prejudicial feminist state has deprived them of the rights to liberty, choice, expressive freedom, a just quality of life, participation in the private sphere, due process, and equal treatment before the law. The administrators and spokesmen for these forums conceive themselves as being collectively embroiled in a common quest to attain justice for men, fathers, and families. In the pseudo-historical narratives of these organizations, special interests groups, spearheaded by the women’s movement, have appropriated public space and perverted state policy. Likewise, liberal-radical social philosophies and practices have driven a gendered

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wedge between citizen rights and responsibilities,15 with the result that women’s entitlements to unearned privileges have eclipsed the rights of men to share in the fruits of their untold contributions to the common weal. Men have, effectively, become exiles in their own land – non-citizens of a post-patriarchal nation. Website imagery depicts the law as a shadowy, faceless predator with a remorseless gavel;16 even Uncle (Auntie?) Sam becomes the iconographic face of father hatred.17 According to the Men’s Media Network site: “We live in a ‘rights’oriented culture, but the meaning of ‘rights’ has become signiWcantly corrupted by indiscriminate use and ideological obscurantism. The notion that rights in general should carry corresponding obligations ... is being undermined by a presumption of society’s obligation to confer such rights without requiring anything in return. The result is the continuing corrosion of that sense of civic responsibility which is utterly essential to the good character of a society, and its replacement by a sense of infantile expectation by which ‘rights’ and entitlements are dispensed on demand.” Demands for legal justice and redress reverberate through the virtual corridors of these electronic men’s rights domains. In the civil arena, references to the depredations of divorce, custody and access law, policy, and judicial practice predominate. Particularly among the single-issue fathers’ activists, assertions ring out that judges are biased against men; that family court settlements render husbands and fathers penniless and powerless; and that former wives and irresponsible mothers luxuriate at home on the strength of muniWcent alimony and support payments, while hardworking fathers disintegrate alone in poverty and silence. As the Alliance for Non-Custodial Parents’ Rights explains, “[f]athers are routinely discriminated against in family court, the district attorney, and the ofWce of c.s. enforcement. Parenting includes much more than writing a check once a month. The best interest of the child is served most effectively by shared parenting. It is the position of [Alliance for Non-Custodial Parents’ Rights] that father’s rights is actually a subset of the broader issue of parents’ rights, or parental rights. Yet courts all across the nation continue to ignore the importance of fathers in family court. The District Attorney looks upon fathers as mere pay checks.” In this dystopian fatherless universe, devoted dads Wnd their parenthood rights being obliterated at the hands of a feminized legal system. They are virtually helpless against a powerful rabble of vindictive women claiming special privileges, a large percentage of whom are afXicted with or responsible for inXicting such psychiatric “illnesses” as parental alienation syndrome,18 borderline personality disorder, and malicious mother syndrome (Turkat 1995). Family devastation, children’s suffering, crime, poverty, ill health, and the general demise of the modern way of life are attributable to children growing up without fathers or the secure bonds of “traditional” family

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structures. Indeed, this androphobic system of injustice, and the women who direct and contort it, are all guilty of perpetrating child abuse: “Fatherdeprivation is a serious form of child abuse that is institutionalized and entrenched within our legal system. Powerful sexist people ... have a vested interest in diminishing the role of men, especially their role as fathers. Research proves that children thrive with the active participation of both biological parents” (BC Fathers). In the terrain of criminal law, male spouses and fathers are ostensibly at the mercy of a judicial system that validates without challenge the allegations by women and their manipulated children of sexual and physical harassment and abuse, while discrediting the evidence, however iron-clad, of wrongly accused men. According to the National Coalition of Free Men, false accusations have reached “epidemic” proportions, and women have arrogated to themselves untrammeled legal power to accuse any innocent man of abuse, child molestation, or sexual harassment. The A-Team’s Kenneth Pangborn, who offers all manner of online expertise and support to husbands and fathers in trouble, laments that “[f]alse allegations of child abuse, domestic violence, marital rape and others have become staples within modern American divorces.” Dean Tong, founder and operator of the Abuse-Excuse website (“where the ultimate weapon is one accusation away” and “you could be next”), proclaims that all men are potential victims under such a repressive climate of intolerance. “The state can take your child at 3:00 am at gun point if necessary,” warns Tong, “based on uncorroborated hearsay from the mouths of babes.” Since the formal justice system has degenerated into an appendage of feminist intrigue, a fair deal – and protection against (wrongful accusations of) violence, harassment, and abuse – can be realized only by mobilizing to reform the state-sponsored justice system or by working beyond its boundaries altogether. As Dean Tong declares, men must mobilize and collaborate in resistance against this systemic legal bias. First and above all, (ex)-husbands and fathers must educate the legal authorities and other state ofWcials. “We aim to help the falsely accused,” Tong writes, “and to articulate scientiWc facts to child protection investigators, teachers, attorneys and judges, urging them to exercise caution in their ‘rush to judge’ abuse calls.” Second, men must practice safe parenthood by tape recording phone calls and conversations; bringing along witnesses when picking up or dropping off their children; keeping a detailed paper trail of receipts, logs, diaries, and photographs; and always operating on the assumption that they are being observed, recorded, videotaped, and followed. The price of being a father, in a feminist world gone mad, is eternal vigilance. Feminism Endangers Men’s Health and Safety In men’s rights cyber-discourse, men’s (ill) health becomes a marker of structured inequality. Exponents accuse the state, health institutions, and

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medical professions of either malign neglect or an active onslaught on men’s longevity and quality of life. In the language of men’s rights organizations, the feminist-inspired privileging of women’s health issues has relegated men to the sidelines of medical policies and condemned them to inWrmity and premature death. As professed, for example, in the declaration of the First National Everyman Gathering in Ottawa on 1-3 May 1998, “[a]pproximately equal in the early years of the century, Canadian women’s life expectancy has increased twice as fast as men’s to the current gap of almost six years. Male death rates are 23% higher for cancers, 96% higher for heart disease, 127% higher for accidents, and 350% higher for suicide. Yet not one major government commission or study has been dedicated to male health or mortality.”19 Across these sites, comparisons abound between the experiences of breast and prostate cancer and the alleged overshadowing of the latter in public consciousness and statefunding programs. For its part, the assault on the phallus through male circumcision represents a form of genital mutilation equivalent to that perpetrated against women and girls in certain cultures.20 Moreover, women’s entry into the public sphere has operated to erode traditional structures of care for men and children. Conversely, men’s supposed obligation “to perform more and more housework” has exposed them to greater risk of stress, stroke, and cardiovascular disease by “decreasing the free time available to them for both exercise and relaxation.”21 Women must be encouraged, declare the Men’s Health Network, “to expand on their traditional role as the leader of health care for the family and activist for the enhancement of health care services.” For the stake, and the mission, are nothing less than “to save men’s lives by reducing the premature mortality of men and boys” (ibid.). Similarly, “special interest” groups must desist from their monopolization of already scarce health resources for men. Referencing the Draft National Men’s Health Policy in that country, the Australian Men’s Health Network observes that “[b]oth Aboriginal and Homosexual emphasis are very apparent. I note that these groups do have special needs but are already being funded through special funding designed speciWcally for them. It is clear that the inclusion of these ‘politically active’ groups in general men’s health policy will ensure that the limited funds available will be used for these groups rather than to raise the health of the general populace.” In concert with these claims regarding the marginalization of men’s health issues, the websites also routinely focus on what is purported to be an escalating but unacknowledged scourge of women’s “domestic” violence against men. Bolstered by the steady stream of research issuing from Murray Straus, Richard Gelles, and their New Hampshire colleagues (Gelles and Straus 1988; Straus, Gelles, and Steinmetz 1980; Straus and Gelles 1990), and from numerous other “experts” on women’s physical victimization of their male partners,

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advocates offer various forms of “proof” that the home is an especially perilous place for men. According to these sources, feminist “lies” about the predominance of male domestic violence have corrupted social values and public policies on multiple levels. They routinely cite Erin Pizzey – an original co-founder of the battered women’s movement who has since distanced herself from this cause – as an example of one feminist who came to her senses and had the courage to speak out against the gynocentric autocracy.22 “Radical feminists,” asserts the website Domestic Violence against Men in Colorado, “strike at the heart of our civilization by destroying families with legislated assistance on the basis of their claim that it is always man who is the perpetrator in family violence. And that men are violent not because they are individually inherently evil but because the patriarchy that has built civilization requires such behavior.” Exponents attribute public “misperceptions” of homeplace violence to “a feminist driven onesided domestic violence rhetoric” (DADS against Discrimination), to a feminist-occupied mass media, to a borderline côterie of academics advancing their radical agenda, to laws that are “based on [feminist] dementia” (ibid.), to a male-hostile criminal justice system, and to the wrong-headedly “chivalrous” values of battered men who suffer in silence. Cyber-Mascul(in)ism as Backlash For feminists, pro-feminists, and anyone else with a pain threshold, these men’s rights cyber-sites can be arduous territories to negotiate. The seemingly endless torrent of hostility, petulance, propaganda, and downright hate-mongering that cascades from these virtual pages is hard to digest and capable of evoking all manner of visceral reactions in the individual reader-viewer. Simultaneously, this extremist material threatens increasingly to normalize itself and shift the boundaries of contestation, through sheer repetition, shrillness, and oft-seeming omnipresence. In determining how best to contend with these distasteful offerings, feminist scholars and activists must be heedful that a full-frontal engagement with mascul(in)ist discourse, reacting unreXexively to the aversion that it almost instinctively incites, may not always be either strategically wise or politically astute. Efforts to refute and defuse the outpourings of men’s rightists may sometimes risk reinforcing the latter’s assertions that their claims merit serious debate in the Wrst place; that feminists and mascul(in)ists represent two oppositional sides of a bipartisan, unidimensional, context-free struggle for justice; and that an (ever-rightward-creeping) neutral “no-(wo)man’s land” affords an ultimate, interstitial, gender-devoid resolution to the polemic conXicts that currently rage between men and women. Correspondingly, it is also difWcult to assess the relevancies of these mascul(in)ist sites, and the men who promote them, for social reactions and

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resistances to feminism that occur in the wider world beyond the World Wide Web. As with the majority of such accounts of media culture, reliable measures of social impact are not readily available. On the one hand, their odious, and often vacuous, content might lead one to minimize or ironize or dismiss these offerings as the ineffectual rants of embittered men with no other more traditional forum available to vent their collective alienation. Such a reading is certainly consistent with a vision of the Internet as a technologically inchoate, incorporeal, loose coupling of disconnected people and protean, transitory networks that are subject to permanent dissolution at the click of a mouse. On the other hand, just as the World Wide Web has penetrated more and more deeply into the fabric of everyday experience through the past decade (at least for those of us who inhabit the “developed” world), so too has it become increasingly difWcult to discount the inXuence of individuals and organizations that operate and communicate through the medium of cyber-space. Debates over the meaning and impact of these sites, indeed, dovetail with critically important discussions about the ideological and material role of the Internet, and the mass media, in contemporary life. Feminists need to appreciate that cultural and discursive terrains of conXict have shifted in recent times and consider how such new technologies situate, mediate, and fuel ideological struggle. While cyber-based anti-feminist backlash groups may not conform entirely to traditional understandings of institutional structure and agency, they do constitute a genuine social movement that is highly active, widely dispersed, well organized, and powerful. It is by no means an accident of history that the 1990s resurgence of men’s rights backlash coincided with the popular advent of the World Wide Web. As the other chapters in this collection graphically show – and as authors such as Susan Boyd (2000, 2004a, 2004b), Clatterbaugh (2001), and Collier (1996, 2003) have documented elsewhere – the discourses, narratives, and truth claims that inundate these Web pages are also manifest in virtually every other forum where men’s rightists seek to shape lawmaking, institutional reform, state policy, and public opinion. Further, most of the organizations canvassed in this study enlist their websites largely as extensions of, and facilitators for, their recruiting, consulting, lobbying, fundraising, and other forays against feminism transpiring in the “real” world. And certainly, men like Kenneth Pangborn, Dean Tong, Ferrel Christensen, Ken Wiebe, Peter Zohrab, David Throop, Bob Hirschfeld, and their many colleagues involved in creating and maintaining these sites are widely known Wgures in the men’s rights community. By the same token, in theorizing virtual backlash, as with all forms of institutional and cultural response to feminism, we must be careful not to essentialize the subject (or, for that matter, to allow its self-essentializing

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to inXuence our own thinking). Their professions to unanimity notwithstanding, groups such as the A-Team, Domestic Rights Coalition, Fathers and Children Together, Fathers’ Rights Network, Fatherhood Alliance, and National Coalition of Free Men do not by any means represent a seamless, universal, monolithic movement of identically minded men. As with contemporary cultures and identities of masculinity more generally (Connell 1995; Messner 1997), there are many competing, and often conXictual, ideas in play about just what constitutes (men’s) rights and many visions of feminism circulating within masculine cultures. While the websites surveyed for this chapter certainly do not stand isolated in cyberspace nor do they stand for all men. Indeed, even a cursory inspection of their content reveals the extent to which the virtual “voice of men” in these anti-feminist realms is unremittingly Wrst-world, (neo)-conservative, heterosexual, and white. At least one precondition for mounting a “backlash against backlash,” therefore, involves deconstructing the universalizing claims of these anti-feminist spokesmen and exploiting the contradictions in their rhetoric and platforms. It entails working to ensure that public culture – the Internet included – becomes genuinely representative of a full plurality of perspectives, including those of feminists and pro-feminist, progressive men. To these ends, a fully realized feminist response to these mascul(in)ist forces must also be grounded in a serious engagement with the cultural potency of cyber-space in our hyper-mediated contemporary social order. A feminist praxis calls for exposing and devaluing the ideological currency that underwrites men’s rights groups and other regressive organizations that mobilize the Internet in the advancement of their own interests and in their multi-tiered assaults on progressive causes of all kinds. Through these formative years of the cyber-revolution, those who have succeeded in colonizing the Internet, including men’s rightists, have managed to appropriate the symbols of neo-liberalism to justify their cultural dominance as a just outcome of egalitarian competitive processes that ostensibly operate in the virtual world – as they allegedly do, or should do, on the “outside.” Indeed, the pundits are wont to brandish cyber-space as the very epitome of the free-market “democratic” ideal, providing men with resources, venues, and possibilities that have been denied them in the corrupted, socialized, feminized order they are collectively campaigning to overturn. In this sense, “backlash” politics transcend reactions and resistances to feminism. Absent a feminist foil, the neo-liberal impetus (of which men’s rights groups are a constituent part) would likely have been just as ascendant as it has ultimately proven to be through the past decade. For their part, feminists need to unpack how the neo-liberal metaphor of the World Wide Web as a libertarian marketplace of commodities and communications – embodied in the men’s rights lexicon of liberty, openness,

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responsibilization, and freedom from the “welfare” state – is as fraudulent and destructive in these virtual forums as it is in the wider socio-political terrain of advanced “liberal democracies.” It is vital that feminists and their allies reveal the World Wide Web for what it is, namely, an inherently stratiWed technological, and cultural sphere in which gender, class, race, ethnicity, sexuality, and related structures of authority and subordination continue to determine whose voices get heard, whose writings get read, and who ultimately gains access to the engines of legal, institutional, cultural, and political power. On one level, a de/regendering and general restructuring of this profoundly androcentric, racialized, classed, and heterocentric medium must be a priority. More broadly still, feminists must continue to deploy tactics and strategies of praxis aimed at contesting and overcoming the neo-liberal agenda both within and apart from cyber-space. Consistent with Walby’s important admonishment that feminist dealings with backlash be informed by a wider historical and contextual understanding, present and future struggles against cyber-mascul(in)ism need to parallel, reXect, and inform wider feminist mobilizing for emancipation and reform. Even if the couplings are sometimes tenuous, what transpires in cyber-space is ultimately inseparable from courses of events that unfold in the substantive world. In other words, backlash does not begin or end at the boundaries of any given institutional or cultural context, the Internet included. The men’s rightists will continue to dominate virtual realms – and the efforts of feminists and others to democratize cyber-space will fall short – unless and until further progress is made in the realms of law, politics, labour, health, education, family, and assorted other systems under siege by the backlash. Moreover, whether waged on virtual or material front lines, these struggles concern women and men in equal measures, and they implicate not just feminism but all progressive causes, movements, and aspirations. In the Wnal analysis, if this peripatetic journey through the cyber-world of backlash yields any clear conclusion, it is that feminists do need to take the men’s rights movement very seriously, in all of its sundry manifestations both material and virtual. Mascul(in)ist claims to justice are intricately linked to a wider political agenda aimed at thwarting, estopping, and rolling back the advances aspired to and achieved by women, and a host of other systemically subaltern and disadvantaged groups, over the past generation and longer. The potency of these anti-feminist organizations, and of their many exponents in cyber-space and social space, derives in large part from their proven capacity to take possession of territories opened up by neo-liberal and neo-conservative advances since the 1980s; their facility in co-opting and reconstructing the languages and strategies of feminist and related progressive projects; their ability to supplant progressive, substantive democratic claims to justice with a formalistic, de-socialized

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rights agenda that re-entrenches privilege; their widespread colonization of the “new cultural technologies”; and their self-positioning as the “true” defenders of reason, choice, equality, liberty, the individual, the family, the social order, citizenship, God, and nation. Correspondingly, whether and how feminists and their allies manage to sustain the momentum of their own causes, while simultaneously blunting the forces of reaction and resistance, will in large part determine the course of social justice for women – and for men and children – as this still-young century unfolds.

Acknowledgments My thanks to Susan Boyd, Dorothy Chunn, Emma Cunliffe, Jacqueline Faubert, Chantal Faucher, Fiona Kelly, Hester Lessard, Krista Robson, Claire Young, the two anonymous reviewers for UBC Press, and the other participants of the book-planning workshop held in December 2004 for their varied and invaluable input. For her remarkable efforts in compiling, organizing, and abstracting the Web-based research materials, Susanna Steinitz deserves special acknowledgment. The SSHRC provided research funding through its support of the project “Feminism, Law, and Social Change in Canada, 1967-1997.” All errors and omissions are mine alone. Notes 1 For the sake of concision, I use the term “men’s rights” in reference to a wide and pluralistic assortment of individuals, groups, organizations, and interests – many of them generic and overarching and many focusing on speciWc concerns and strands of the “movement,” most particularly “fathers’ rights.” 2 Both terms, masculinism and masculism, are commonplace in men’s rights and antifeminist writings. In a commentary for the Independent Institute, entitled “Gender Issues Impacted by Masculinists,” Wendy McElroy advises that “[t]he dominant theme of mainstream masculinism is the demand for a gender-neutral approach to social problems such as broken families, domestic violence and reproduction ... By contrast, feminist critics claim that masculinism promotes an exclusively male point of view at the expense of women.” Similarly, writing in the e-journal Reason Online (“Man Troubles: Making Sense of the Men’s Movement” 1994), Cathy Young charitably deWnes masculism as “1. the belief that equality between the sexes requires the recognition and redress of prejudice and discrimination against men as well as women. 2. the movement organized around this belief.” An August 2006 Google search yielded 40,200 hits for masculinism and 19,000 for masculism. 3 As Walby (1993, 79) writes, “[b]acklash appears to be a recurring feature in the history of feminism ... Gender politics includes not only the actions of women, but the reactions of men.” 4 Backlash writing, as Elizabeth Kamarck Minnich (1998, 160) observes, routinely congratulates itself as being “in defence of values central to mainstream feminism: intellectual quality and honesty, anti-elitism, objectivity, and tolerance of dissenting views.” 5 See also the websites for the organizations Concerned Women for America, REAL Women of Canada, the Gender Issues Research Center, and the Women’s Freedom Network. 6 See Everyman: A Men’s Journal, which operates out of Ottawa, ON, http://www.everyman. org/. 7 The now-defunct Balance Magazine published for several years in Edmonton Alberta, under the sponsorship of the Movement for the Establishment of Real Gender Equality (MERGE) and the editorship of Ferrel Christensen. 8 Christina Hoff Sommers appears to have popularized the term “gender feminist” in Who Stole Feminism? (1994). See also Wendy McElroy (1996). 9 See, for example, the websites for Abuse-Excuse, National Coalition of Free Men, BC

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Fathers and Dick Freeman, and the on-line journal The Backlash! http://www. backlash.com. Pennsylvania Family Court Reform has since merged with the Center for Children’s Justice in Denver, CO, at http://family_court_reform.tripod.com/. No longer accessible in August 2006. See, among others, websites for the organizations Abuse-Excuse, BC Fathers, Fathers Battling Injustice, Fathers Canada 4 Justice, Fathers for Life, and the Promise Keepers. George W. Bush, Sr., (contorting an original Edmund Burke quotation) uttered this memorable line during a speech delivered at Fort Stewart, Georgia, on 1 February 1991. The full excerpt reads as follows: “In times of trial, we fall back on faith and on family – what a wise man once called the ‘little platoons’ to which we all belong” (http://bushlibrary. tamu.edu/research/papers/1991/91020102.html). As Peter Zohrab asks and replies on his New Zealand Men for Equal Rights Association website: Question: “What part of ‘Equality’ don’t Feminists understand? Answer: The part where women lose their special privileges.” Arguing for the inclusion of women in selective service registration, the Men’s Media Network insists that “[w]omen now have (more than) equal rights; it’s time they also have equal responsibilities.” Legalize Choice for Men website (National Center for Men). See, for example, the Abuse-Excuse home page. Until his death on 26 May 2003, Richard A. Gardner (1987, 1998, 1999); was the driving force behind the clinical and cultural (but less-so legal) popularization of parental alienation syndrome. Since its invention, parental alienation syndrome has spawned a litany of studies and publications and is mentioned on eighteen of the seventy-three websites surveyed for this study. As of August 2006, it was generating 140,000 Google hits. Among the critiques of this notorious construct, see Stephanie Dallam (1999), Jerome Poliacoff, Cynthia Green, and Laura Smith (1999), and Judith Simon (1998). Reproduced from Everyman: A Men’s Journal, http://www.everyman.org/ and available at the site of the National Coalition of Free Men. See, for example, the websites for Doctors Opposing Circumcision, Intact, and the National Organization to Halt the Abuse and Routine Mutilation of Males. Reproduced from Everyman: A Men’s Journal, http://www.everyman.org/. Erin Pizzey, “How the Women’s Movement Taught Women to Hate Men,” retrieved from “News and Views” page, Men’s Rights Agency website; and Dave Chan’s “Founder of Women’s Shelters Now Critic,” retrieved from Family of Men Support Society website. Compare Pizzey (1978).

References Altheide, David L. 1996. Qualitative Media Analysis. Thousand Oaks, CA: Sage. –. 2002. Creating Fear: News and the Construction of Crisis. Hawthorne, NY: Aldine de Gruyter. Bartkowski, John P. 2004. The Promise Keepers: Servants, Soldiers, and Godly Men. New Brunswick, NJ: Rutgers University Press. Baumli, Francis, ed. 1985. Men Freeing Men. Jersey City: New Atlantis. Berger, Arthur Asa. 1991. Media Analysis Techniques. Thousand Oaks, CA: Sage. Bertoia, Carl Edward. 1998. “An Interpretative Analysis of the Mediation Rhetoric of Fathers’ Rightists: Privatization versus Personalization.” Mediation Quarterly 16: 15-32. Bertoia, Carl Edward, and Janice Drakich. 1993. “The Fathers’ Rights Movement: Contradictions in Rhetoric and Practice.” Journal of Family Issues 14: 592-615. Bouchard, Pierrette, Isabelle Boily, and Marie-Claude Proulx. 2003. School Success by Gender: A Catalyst for the Masculinist Discourse. Ottawa: Status of Women Canada, http://www.swc-cfc.gc.ca/pubs/pubspr/0662882857/index_e.html. Boyd, Neil. 2004. Big Sister: How Extreme Feminism Has Betrayed the Fight for Sexual Equality. Vancouver: Greystone. Boyd, Susan B. 2000. “Can Child Custody Law Move beyond the Politics of Gender?” University of New Brunswick Law Journal 49: 157-68.

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–. 2004a. “Backlash against Feminism: Canadian Custody and Access Reform Debates of the Late Twentieth Century.” Canadian Journal of Women and the Law 16(2): 255-90. –. 2004b. “Demonizing Mothers: Fathers’ Rights Discourses in Child Custody Law Reform Processes.” Journal of the Association for Research on Mothering 6: 52-74. Boyd, Susan B., and Claire F.L. Young. 2002. “Who InXuences Family Law Reform? Discourses on Motherhood and Fatherhood in Legislative Reform Debates in Canada.” Studies in Law, Politics, and Society 26: 43-75. Brickner, Bryan W. 1999. The Promise Keepers: Politics and Promises. Lanham, MD: Lexington. Brittan, Arthur. 1989. Masculinity and Power. Oxford: Basil Blackwell. Brod, Harry, and Michael Kaufman. 1994. Theorizing Masculinities: Research on Men and Masculinities. Thousand Oaks, CA: Sage. Clatterbaugh, Kenneth. 1990. “Counterattack: The Men’s Rights Movement.” In Kenneth Clatterbaugh, ed., Contemporary Perspectives on Masculinity: Men, Women, and Politics in Modern Society, 69-94. Boulder, CO: Westview Press. –. 2001. “Review Essay: Literature of the U.S. Men’s Movements.” Signs: Journal of Women in Culture and Society 25: 883-94. Collier, Richard. 1996. “‘Coming Together’: Post-Heterosexuality, Masculine Crisis and the New Men’s Movement.” Feminist Legal Studies 4: 4-48. –. 2003. “ReXections on the Relationship between Law and Masculinities: Rethinking the ‘Man Question’ in Legal Studies.” In M.D.A. Freeman, ed., Current Legal Problems 2003. Vol. 56, 345-402. Oxford: Oxford University Press. Connell, Robert W. 1995. Masculinities. Berkeley: University of California Press. Dallam, Stephanie J. 1999. “The Parental Alienation Syndrome: Is It ScientiWc?” In Elize T. St. Charles and Lynn Crook, eds., Expose: The Failure of Family Courts to Protect Children from Abuse in Custody Disputes. Los Gatos, CA: Our Children Our Future Charitable Foundation. Available at http://www.leadershipcouncil.org/1/res/dallam/3.html. Dey, Ian. 1999. Grounding Grounded Theory: Guidelines for Qualitative Inquiry. San Diego: Academic Press. Digby, Tom, ed. 1998. Men Doing Feminism. London: Routledge. Doyle, Richard F. 1976. The Rape of the Male. St. Paul: Poor Richard’s Press. Eldén, Sara. 2000. “Gender Politics in Conservative Men’s Movements: Beyond Complexity, Ambiguity and Pragmatism.” Nordic Journal of Women’s Studies 10: 38-48. Faludi, Susan. 1991. Backlash: The Undeclared War against American Women. New York: Crown Publishers. Farrell, Warren. 1986. Why Men Are the Way They Are: The Male-Female Dynamic. New York: McGraw-Hill. –. 1993. The Myth of Male Power: Why Men Are the Disposable Sex. New York: Simon and Schuster. –. 1999. Women Can’t Hear What Men Don’t Say. New York: Jeremy P. Tarcher/Putnam. Feldstein, Richard. 1997. Political Correctness: A Response from the Cultural Left. Minneapolis: University of Minnesota Press. Fitzgerald, Matthew. 1999. Sex-Ploytation: How Women Use Their Bodies to Extort Money from Men. Willowbrook, IL: April House Publishing. Flood, Michael. 1997. “Responding to Men’s Rights.” XY: Men, Sex, Politics 7. Fox-Genovese, Elizabeth. 1996. “Feminism Is Not the Story of My Life”: How Today’s Feminist Elite Has Lost Touch with the Real Concerns of Women. New York: Anchor Doubleday. Friedenberg, Edgar Z. 1975. The Disposal of Liberty and Other Industrial Wastes. Garden City, NY: Doubleday. Gardner, Richard A. 1987. The Parental Alienation Syndrome and the Differentiation between False and Genuine Child Sex Abuse. Cresskill, NJ: Creative Therapeutics. –. 1998. The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals, 2nd edition. Cresskill, NJ: Creative Therapeutics. –. 1999. “Differentiating between Parental Alienation Syndrome and Bona Fide AbuseNeglect.” American Journal of Family Therapy 27(2): 97-107. Gelles, Richard J., and Murray A. Straus. 1988. Intimate Violence. New York: Simon and Schuster.

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Glaser, Barney G., and Anselm L. Strauss. 1967. The Discovery of Grounded Theory: Strategies for Qualitative Research. Chicago: Aldine. Goldberg, Herb. 1976. The Hazards of Being Male: Surviving the Myth of Masculine Privilege. New York: Signet. –. 1991. What Men Really Want. New York: Signet. Goldberg, Stephen. 1974. The Inevitability of Patriarchy. New York: William Morrow. Goldrick-Jones, Amanda. 2002. Men Who Believe in Feminism. Westport, CT: Praeger. Gordon, John. 1982. The Myth of the Monstrous Male and Other Feminist Fables. New York: Playboy Press. Hagan, Kay Leigh. 1992. Women Respond to the Men’s Movement: A Feminist Collection. San Francisco: Pandora. Hawkesworth, Mary. 1999. “Analyzing Backlash: Feminist Standpoint Theory as Analytical Tool.” Women’s Studies International Forum 22: 135-55. Horowitz, David, and Peter Collier, eds. 1994. The Heterodoxy Handbook: How to Survive the PC Campus. Washington, DC: Regnery Publishing. Jesser, Clinton J. 1996. Fierce and Tender Men: Sociological Aspects of the Men’s Movement. Westport, CT: Praeger. Johnson, Tom. 1997. No Man’s Land. Rushcutter’s Bay, NSW: Halstead Press. Kaufman, Michael. 1993. Cracking the Armour: Power, Pain and the Lives of Men. Toronto: Viking. Kaye, Miranda, and Julia Tolmie. 1998a. “Fathers’ Rights Groups in Australia and Their Engagement with Issues of Family Law.” Australian Journal of Family Law 12: 19-68. –. 1998b. “Discoursing Dads: The Rhetorical Devices of Fathers’ Rights Groups.” Melbourne University Law Review 22: 162-94. Kimmel, Michael S., ed. 1995. The Politics of Manhood: Profeminist Men Respond to the Mythopoetic Men’s Movement (and the Mythopoetic Leaders Answer). Philadelphia: Temple University Press. Kimmel, Michael, Jeff Hearn, and Robert W. Connell, eds. 2004. Handbook of Studies on Men and Masculinities. Thousand Oaks, CA: Sage. Klein, Ellen R. 1996. Feminism under Fire. Amherst, NY: Prometheus. Laclau, Ernesto, and Chantal Mouffe. 2001. Hegemony and Socialist Strategy: Towards a Radical Democratic Politics, 2nd edition. London: Verso. Lasch, Christopher. 1977. Haven in a Heartless World: The Family Besieged. New York: Basic Books. Lingard, Bob, and Peter Douglas. 1999. Men Engaging Feminisms: Pro-Feminism, Backlashes and Schooling. Buckingham, UK: Open University Press. Lundskow, George N. 2002. Awakening to an Uncertain Future: A Case Study of the Promise Keepers. New York: Lang. McCraken, Robert D. 1972. Fallacies of Women’s Liberation. Boulder: Shields Publishing. McElroy, Wendy. 1996. Sexual Correctness: The Gender-Feminist Attack on Women. Jefferson, NC: McFarland and Company. –. 2003. “Gender Issues Impacted by Masculinists.” Independent Institute. http://www. independent.org/tii/news/030603McElroy.html. Messner, Michael A. 1997. Politics of Masculinities: Men in Movements. Thousand Oaks, CA: Sage. –. 1998. “The Limits of ‘The Male Sex Role’: An Analysis of the Men’s Liberation and Men’s Rights Movements’ Discourse.” Gender and Society 12: 255-76. Millard, Allan. 1995. Equality: A Man’s Claim: The Equality Issue from the Male Perspective, and an Ethical Society’s Viewpoint. Salt Lake City, UT: Northwest Publishing. Minnich, Elizabeth Kamarck. 1998. “Feminist Attacks on Feminisms: Patriarchy’s Prodigal Daughters.” Feminist Studies 24: 159-75. Mouffe, Chantal, ed. 1992. Dimensions of Radical Democracy: Pluralism, Citizenship, Community. London: Verso. Nathanson, Paul, and Katherine K. Young. 2001. Spreading Misandry: The Teaching of Contempt for Men in Popular Culture. Montreal and Kingston: McGill-Queen’s University Press. Neely, James C. 1981. Gender: The Myth of Equality. New York: Simon and Schuster.

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Oakley, Ann, and Juliet Mitchell, eds. 1997. Who’s Afraid of Feminism? Seeing through the Backlash. New York: New Press. Patai, Daphne. 1998. Heterophobia: Sexual Harassment and the Future of Feminism. Lanham, MD: Rowman and LittleWeld. Pizzey, Erin. 1978. Scream Quietly or the Neighbors Will Hear. Berkeley Heights, NJ: Ridley Enslow. Poliacoff, Jerome H., Cynthia L. Greene, and Laura Smith. 1999. “Parental Alienation Syndrome: Frye v. Gardner in the Family Courts.” Family Law Commentator (Florida Bar) 25: 19-20 and 30-33. Roiphe, Katie. 1993. The Morning After: Sex, Fear, and Feminism. Boston: Little, Brown. Rush, Florence. 1990. “The Many Faces of Backlash.” In Dorchen Leicholdt and Janice G. Raymond, eds., The Sexual Liberals and the Attack on Feminism, 165-74. New York: Pergamon. Schacht, Steven P., and Doris W. Ewing, eds. 1998. Feminism and Men: Reconstructing Gender Relations. New York: New York University Press. Schwalbe, Michael. 1996. Unlocking the Iron Cage: The Men’s Movement, Gender Politics, and American Culture. New York: Oxford University Press. Segal, Lynne. 1990. Slow Motion: Changing Masculinities, Changing Men. London: Virago. Seidler, Victor J. 1994. Unreasonable Men: Masculinity and Social Theory. London: Routledge. Simon, Judith M. 1998. “Richard Gardner: A Self-Made Man.” Swans 6, http://www. swans.com. Smith, Randy T. 1998. The Man’s Book: 101 Ways to Survive Women’s Liberation and Other Female Nonsense. Raleigh, NC: Pentland Press. Sommers, Christina Hoff. 1994. Who Stole Feminism? How Women Have Betrayed Women. New York: Touchstone. –. 2000. The War against Boys: How Misguided Feminism Is Harming Our Young Men. New York: Simon and Schuster. Stacey, Judith. 1998. “Dada-ism in the 1990s: Getting Past Baby Talk about Fatherlessness.” In Cynthia R. Daniels, ed., Lost Fathers: The Politics of Fatherlessness in America, 51-83. New York: St. Martin’s Press. Strauss, Anselm L., and Juliet Corbin. 1998. Basics of Qualitative Research: Techniques and Procedures for Developing Grounded Theory. Thousand Oaks, CA: Sage. Straus, Murray A., and Richard J. Gelles. 1990. Physical Violence in American Families: Risk Factors and Adaptations to Violence in 8,145 Families. New Brunswick, NJ: Transaction. Straus, Murray A., Richard J. Gelles, and Suzanne K. Steinmetz. 1980. Behind Closed Doors: Violence in the American Family. Garden City, NY: Anchor Doubleday. Turkat, Ira Daniel. 1995. “Divorce Related Malicious Mother Syndrome.” Journal of Family Violence 10: 253-64. Walby, Sylvia. 1993. “‘Backlash’ in Historical Context.” In Mary Kennedy, Cathy Lubelska, and Val Walsh, eds., Making Connections: Women’s Studies, Women’s Movements, Women’s Lives, 79-89. London: Taylor and Francis. Wilson, John. 1980. Love, Sex, and Feminism. New York: Praeger. –. 1995. The Myth of Political Correctness: The Conservative Attack on Higher Education. Durham: Duke University Press. Young, Cathy. 1994. “Man Troubles: Making Sense of the Men’s Movement.” Reason Online, http://www.reason.com/9407/fe.young.9407.html. –1999. CeaseWre! Why Women and Men Must Join Forces to Achieve True Equality. New York: Free Press. Zohrab, Peter. 2002. Sex, Lies, and Feminism. Wainuiomata, NZ: New Zealand Equality Education Foundation, http://www.geocities.com/peterzohrab/contents.html. Zubaty, Rich. 2001. What Men Know That Women Don’t: How to Love Women without Losing Your Soul. Tinley Park, IL: Panther Press. Websites (accessed in June/July 2001) A-Team, http://www.a-team.org/ Abuse-Excuse, http://www.abuse-excuse.com/ Alliance for Non-Custodial Parents’ Rights, http://www.ancpr.org/

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American Coalition for Fathers and Children, http://www.acfc.org/ Australian Men’s Health Network, http://members.ozemail.com.au/~irgeo/index.html Australian Men’s Party, http://www.ozemail.com.au/~irgeo/amp.htm BC Fathers, http://www.fathers.bc.ca/ Center on Fathering, http://www.pcisys.net/~dad/index.htm Children and Fathers Together, http://cft.org.tripod.com/ Children’s Rights Council, http://www.gocrc.com/ Chippewa Valley Fathers Rights, http://members.nbci.com/borg2 Concerned Women for America, http://www.cwfa.org/ DADS against Discrimination, http:www.teleport.com/~dads/ Dick Freeman, http://www.fathers.bc.ca/dick.htm Doctors Opposing Circumcision, http://faculty.washington.edu/gcd/DOC/ Domain of Patriarchy on the Internet, http://www.debunker.com/patriarchy.html Domestic Rights Coalition, http://www.domesticrightscoalition.com. Domestic Violence against Men in Colorado, http://www.dvmen.org/ Entraide Pères – Enfants Séparés, http://www.travel-net.com/~retap/epes_a.htm European Men ProFeminist Network, http://www.europrofem.org/ Faces of Feminism, http://www.abeautifuldifference.com/webdoc3.5.html Family of Men Support Society, http://www.familyofmen.com/ The Fatherhood Alliance, http://www.fatherhoodalliance.freeservers.com Fatherhood Project, http://www.fatherhoodproject.org/ Fathers 4 Equal Rights, http://www.tcsn.net/fathers4equalrights Fathers and Children Together, http://www.massfact.org or http://members.tripod. com/~family_value/fact.html Fathers Are Capable Too, http://www.fact.on.ca/ Fathers Battling Injustice, http://www.canadian.net/~fact/ Fathers Canada 4 Justice, http://www.fathers.ca/civil_suit_on_sow.htm Fathers for Life, http://www.fathersforlife.org/index.html Fathers Manifesto, http://fathers.ourfamily.com/manifest.htm Fathers’ Network, http://www.fathersnetwork.org Fathers’ Rights Network, http://abs-comptech.com/FGN/frnhome.html Father’s World Ring, http://www.fathersworld.com. Gender Issues Research Center, http://www.falcon.nji.com/~vera Intact, http://www.intact.ca/ Legalize Choice for Men (National Center for Men), http://www.nas.com/c4m/ The Male AfWrmative Resource Network, http://www.themenscenter.com. Masculism Forum, http://www.sharedparenting.com/sharedpa/cgi-bin/HyperNews/get/ issues/masculism.html Men for Change, http://www.chebucto.ns.ca/Community Support/Men4Change/ Men’s Defence Association, http://www.mensdefense.org Men’s Educational Support Association, http://www.mesacanada.com Men’s Health Network, http://www.vix.com/pub/men/orgs/writeups/menshealthnetwork.html Men’s Media Network, http://www.menmedia.org/ Men’s Rights Agency, http://www.mensrights.com.au/ The Men’s Ring, http://nav.webring.yahoo.com/hub?ring=mensring&list Mondo Feminism, http://shell.idt.net/per2/mondofem.htm National Coalition of Free Men, http://www.ncfm.org/ National Organization for Men, http://www.tnom.com/ National Organization of Men against Sexism, http://www.nomas.org/ National Organization on Male Sexual Victimization, http://www.malesurvivor.org/ National Organization to Halt the Abuse and Routine Mutilation of Males, http://www. noharmm.org/ New Zealand Men for Equal Rights Association, http://www.geocities.com/peterzohrab/ No Ma’am, http://www.eebell.net/mwc/nomaam.htm Pennsylvania Family Court Reform, http://members.tripod.lycos.com/family_court_ reform/

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Promise Keepers, http://www.promisekeepers.org Realistic, Equal, Active for Life (REAL) Women of Canada, http://www.realwomenca.com/ index.html Separated Parents Access and Resource Center (formerly Fathers Rights to Custody), http://www.deltabravo.net/custody/index.shtml Shatterd Men, http://www.shatterdmen.com/ Texas Fathers for Equal Rights, http://www.tferfw.org/ United Kingdom Men’s Movement, http://www.ukmm.org.uk/ Victoria Men’s Centre, http://victoria.tc.ca/Community/MensCentre/ Women’s Freedom Network, http://www.womensfreedom.org WWW Virtual Library: Men’s Movement Organizations, http://vix.com/pub/men/orgs/ orgs.html

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4 Imperial Longings, Feminist Responses: Print Media and the Imagining of Nationhood after 9/11 Sunera Thobani

“We are all Americans now” was the deeply visceral response expressed in the Canadian media immediately following the attacks of 9/11 in New York and Washington (Coyne 2001, A7; Ford 2001, A8; Wente 2001b).1 Even before the US administration announced the new doctrine put forward by President George W. Bush, Canadian elites, with overwhelming public support, signed onto the administration’s “war on terror.”2 As was the case in many other countries, Muslims (and those who “look” like Muslims) in Canada were immediately placed under suspicion. Muslim mosques, along with Sikh and Hindu temples, were desecrated, compelling these religious minorities to adopt unprecedented security measures at their sites of worship. Muslims reported being harassed in public places: women reported being chased and their headscarves ripped off, children were taunted and bullied in schools. Muslim associations advised parents to keep their children from attending schools until calm returned and also cautioned women to take special precaution in public places (Small 2001; Slobodian 2001).3 So intense was the anti-Muslim climate in the country that the prime minister visited a mosque in Ottawa, issuing a call for tolerance to the non-Muslim population (see Harper 2001, A9). However, even as he undertook this visit, his Liberal government followed the lead of the Bush administration and swiftly implemented a number of “antiterrorism” measures, which included both the intensiWcation of border control policies to keep “terrorists” out of the country and increased surveillance of “Muslim” immigrants and refugees already in the country (see Daniels, Macklem, and Roach 2001). The detention and deportation of hundreds of immigrants and refugees did not generate much political comment or visible opposition from mainstream society nor did the publicly sanctioned introduction of racial proWling in the newly adopted “anti-terrorism” measures (Choudhry 2002). These practices directly linked immigration control with the terrorist threat, and Muslims – those in Canada as well as those outside the country – became the chief target of the measures adopted by law enforcement agencies as

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well as of the public vigilance that was now elevated to a civic responsibility for nationals. Canada has long presented itself on the global stage as a model multiracial and multicultural society committed to the values of diversity and pluralism. The anti-Muslim racism severely tested this master narrative of nationhood, but the media’s presentation of this racism as a “backlash” sparked by the 9/11 attacks foreclosed further public discussions about the complex articulations of Canadian nationhood, race, and immigration in a moment of global crisis. The concept of “backlash” was made fashionable by Susan Faludi (1991) in her description of the growing anti-feminism in the United States during the closing decades of the twentieth century. Faludi found that feminism was being blamed for most social problems, including the unhappiness and dissatisfaction experienced by women themselves. Naming this intolerance and anger towards feminism as a backlash against the gains made by the women’s movement in their struggle for equality rights, Faludi argued that it was “a powerful counterassault on women’s rights ... an attempt to retract the handful of small and hard-won victories that the feminist movement did manage to win for women” (xviii). Faludi’s use of the concept of backlash has been criticized by some feminists for representing virulent anti-feminism as a “natural” reaction of sorts, for ignoring how tenuous the gains made by women have really been, and for directing “attention to the resistance to change and away from the change itself” (Lessard 1999, 65). Bringing the concept of backlash back into circulation, the media used it this time to explain the anger being popularly expressed towards Muslims in North America after the 9/11 attacks (Blatchford 2001; Mitchell 2001; Wong 2001; Elmasry 2001). Reporting on the situation in the United States, a columnist in the Globe and Mail offered the following explanation: “As they must, the media continue to show photographs of a bearded and turbaned Osama bin Laden, the terrorist whose followers are suspected of hijacking the airplanes that hit the World Trade Centre, the Pentagon and a cornWeld in Pennsylvania ... But to untutored American eyes, anyone with headdress is suspect” (Wong 2001). The media’s accurate reporting of events (after all, the attackers were Muslims), coupled with the lack of knowledge among Americans at a time when their patriotism was running high was her rationale for the attacks on Muslims. The question why the media would feel compelled to “continue to show photos of a bearded and turbaned Osama bin Laden,” and none of the impact of US foreign policies in the Islamic world did not even merit a mention. As she expels Muslims from the categroy “Americans,” her deWnition of “American eyes” as “untutored’ ascribes these eyes an innocence arising mainly from lack of knowledge, not malice informed by centuries of racist stereotypes and misrepresentations about Islam and violence-prone Muslims.

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With regard to the attacks on Muslims in Canada, the general argument made by the proponents of the backlash theory was that the country’s excessively generous immigration policies had allowed into the country “terrorists” and their sympathizers, who were now using the country as the base from which to attack the United States. In addition to being generous, these policies were also extremely lax. They had allowed in too many immigrants and refugees, without adequate regard for whether they actually shared the nation’s values. The attacks of 9/11 were cited as proof that the cultural and religious values of many of these “newcomers” gave rise to a deep-seated hatred of the West and, thus, made them more susceptible to recruitment by “terrorists.” Indeed, if left unchecked, many of them might well aspire to do harm to the nation and its closest ally. Given that the attacks had proved that Muslims harboured animosity towards the West, the anger, fear, and resentment that nationals might feel towards them was understandable. The repeated use of the term “backlash” implicitly legitimized the racialized targeting of Muslims as a natural response to “their” own actions, as an expression of patriotism, as likely to be temporary in duration, and as reXecting the helplessness that many Canadians (and Americans) felt because the nation’s policies misguidedly protected its own enemies. In this chapter, I argue that the concept of backlash is woefully inadequate to the task of explaining either the causes, or the far-reaching impact, of the anti-Muslim (equated with anti-immigrant/refugee) racism permeating the public sphere after 9/11. Instead, I argue that the print media have played no small role in the rejuvenation of the discourse of Western superiority that argues that its civilizational values are under attack by fanatic Muslims who hate freedom and democracy. In its uncritical adoption of the Bush administration’s rhetoric as the most appropriate frame for Canadian responses to the attacks, the media have furthered the racialization of Muslims as enemies also of the Canadian nation. The print media have thus aided in the erosion of the rights of racial minorities within the country. Furthermore, the claims of Western “superiority” have been given content most particularly with regard to the status of women by the deWnition of Western societies as being committed to women’s equality, unlike the Islamic world. I also argue that the media’s intense focus on “Islamic” patriarchal practices has given these a hyper-visibility while drawing attention away from the secular (and other religious) forms of patriarchal practices pervasive within the West. Likewise, the representation of Muslim men as hyper-patriarchal has served to minimize the misogynist and sexist practices of Western men, both at the national and international levels, including the gendered forms of the violence of the invasion and occupation of Afghanistan. While this state of affairs has clearly had serious consequences for the lives of Muslim women in Canada and elsewhere, it will inevitably


also result in a serious setback for “Canadian” women, whose own struggles for equality are also being minimized, if not outrightly ridiculed, in relation to the alleged hyper-patriarchy of the “other.” Feminist responses to these resurgent discourses of the West and the Islamic other thus need to confront the racialization of Canadian national identity as well as the concomitant exoneration of Western forms of patriarchy. Mediating Nationhood As was the case in many other countries, coverage of the 9/11 attacks on the United States dominated Canadian media for days afterwards (Norris, Kern, and Just 2003). Scholars have noted that the media shape in very signiWcant ways the “common-sense” understandings that the public comes to acquire about the nature of the social world and about major international events and their consequences (Hall 1996; Appadurai 1996; Hackett and Zhao 1998). Benedict Anderson (1996) argues that the print media have historically played a powerful role in enabling the imagining of national communities by shaping their cultural and ethnic identities and through their dissemination and popularization of notions of collective interests among various sectors of the population. In their recent study of the media, communications scholars Robert Hackett and Yuezhi Zhao (1998, 1) point out that “journalism is arguably the most important form of public knowledge in contemporary society” (see also Herman and Chomsky 1988; Hall 1996; Hackett and Gruneau 2000). This observation is particularly apt with regard to international events. Moreover, the rise of other forms of media, including television, Wlm, radio, and the Internet, has not entirely displaced the critical role of print media in shaping public discourse as well as in setting the agenda for other forms of media. Newspapers remain at the foundation of the “information pyramid,” with their reporting currently providing much of the information used by other media (Hackett and Gruneau 2000, 50).4 In the case of 9/11 and the ensuing “war on terrorism,” media reporting has played an historically unprecedented role in popularizing knowledge about these events as well as about interests of the nation and its allies and the nature of the “enemy.” Studies have demonstrated that the post-9/11 news reporting represented a “critical culture shift in [the] predominant news frame used by American mass media for understanding issues of national security, altering perceptions of risk at home and threats abroad,” so that while the “actual dangers from international terrorism have fallen substantially around the world, and indeed, fallen during the last decade,” perceptions of the threats of such attacks were such that the risks were deWned as having actually increased as a result of this shift in the news frame (Norris, Kern, and Just 2003, 4).5 In their study of the post-9/11 media reporting in Canada, T.Y. Ismael and John Measor (2003,

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16) found it to be “sensational,” “emotional,” and “repetitive.” They argue that the media have “uniformly failed to perform their traditional watchdog function over the Canadian government in analyzing and presenting alternatives to the selection of government policy.” Identifying “the lack of context” and the “racist notions” in the reporting as particularly problematic, their study echoes the earlier Wndings of Karim H. Karim (2000, 175), who traced the resilience of “centuries-old primary stereotypes,” particularly that of “the Islamic peril” and “the violent Muslim” in North American media reporting of Islam prior to 9/11. Karim notes that these media discourses “accord an implicit primacy to nation-states, particularly to elite nations such as the American superpower,” making “invisible” the “wholesale violence” of these elite nations while “highlighting” the violence of “sub-national groups” (ibid.). However, few studies have examined the gendered nature of this media reporting.6 The rest of this chapter examines print media reporting of 9/11 and its aftermath and the impact of this reporting on reconstituting hegemonic notions of Canadian nationhood, of race and gender, and of “terrorism.” Canada’s two national newspapers, the Globe and Mail and the National Post, were chosen for study for obvious reasons, as well as the provincial newspaper, the Vancouver Sun, which is published where the author resides. Using qualitative research methods, all news stories, editorials, and columns for four days following 9/11 were studied to identify the key themes that emerged in the reporting of the attacks as well as of the US and Canadian responses.7 The themes of a civilizationally superior West facing down an irremediably pre-modern and barbaric “Muslim” enemy, which is inherently prone to violence, as well as a Western commitment to gender equality in the face of a misogynist other emerged early in the reporting, and these themes will be the focus of attention. These themes have remained remarkably consistent in the subsequent media reporting of the Wrst phase of the “war,” the invasion, and the occupation of Afghanistan. I will therefore draw upon salient media reports after the initial four days of reporting to demonstrate their endurance. Multiculturalism and the Discourse of Anglo Decline Although deWned by the media as a “backlash” sparked by 9/11, the virulent anti-Islamism that erupted in the aftermath of the attacks certainly did not emerge in a vacuum. During the last decade of the twentieth century, growing public resentment and intolerance towards immigrants had been identiWed in many hyper-capitalist countries, including the United States (Chavez 2001), France (Silverstein 2004), Australia (Hage 2000), and Canada (Mackey 2002; Jakubowski 1997). Ghassan Hage (2000) has described this anti-immigrant discourse in Australia as arising from the fear that multiculturalism was a zero-sum game, which represented a gain for people


of colour but a loss for white nationals. He argues that this discourse of “Anglo decline” “either passively mourns or actively calls for resistance against what it perceives as a state-sanctioned assault on the cultural forms that have their roots in the British colonization of Australia” (179). Hage’s analysis of the emergence of this discourse of “Anglo decline” is important, and the perception that immigrants have acquired unwarranted advantages fuels the notion of the backlash, while relegating discussions about their ongoing racial discrimination and exploitation to the margins. Similar to the Australian situation described by Hage, a popular antiimmigrant discourse had also gained considerable ground in Canada during the 1990s. The sentiment that immigrants had been generously allowed into the country and given access to valuable opportunities for economic advancement, but that many of them had turned out to be ungrateful and were over-burdening social services, abusing the welfare system, and undermining national cohesion, was gaining ground across the country. The increasingly public vocalization of these sentiments has been noted in several studies (Mackey 2002; Jakubowski 1997; Thobani 2000). This antiimmigrant discourse identiWed both the immigration and multiculturalism policies of the state as counterproductive – even if well intentioned – for they had endangered the nation’s welfare and its cohesion. Rather than attributing such resentments to a “natural” reaction among nationals who perceived themselves as increasingly disadvantaged by the rights accorded to immigrants, a number of studies have argued that political elites promoted such anti-immigrant sentiments as part of the restructuring of Canadian society that was underway during that period ( Jakubowski 1997; Thobani 2000). The restructuring of the welfare state during the 1990s resulted in a massive slashing of social programs, and the scapegoating of immigrants and refugees by constructing them as a drain on the over-burdened social safety net was one way in which attention was directed away from the state’s role in implementing a corporate driven neo-liberal agenda committed to privatization and deregulation. Moreover, the scapegoating of immigrants was effective because it drew upon the historically entrenched racialization of Canadian society. The transition from a white settler identity to a liberalized multicultural one was spurred in the 1960s by a growing confrontation between the “Francophone” and “English”-Canadian communities as well as by the increasingly vocal demands of other “ethnic” groups for recognition of their place within the nation (Bannerji 2000; Das Gupta 1999; Hawkins 1989). The Canadian state responded to these conXicts by appointing the Royal Commission on Bilingualism and Biculturalism in 1963, which reinforced the ofWcial deWnition of the nation as bilingual and bicultural (English and French), and led to the adoption of the ofWcial policy of multiculturalism in 1971 by the Trudeau government.8 Ignoring the presence of Aboriginal

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nations and their struggles for sovereignty, the colonialist erasure of Aboriginal peoples was incorporated into the commission’s exaltation of the bilingual and bicultural (that is, British and French) identity of the nation. The commission’s report thus furthered the marginalization of Aboriginal peoples as just so many more “cultural” groups among a great many others. In deWning the population as belonging to discrete ethnic and cultural groups, multiculturalism aided in the ideological erasure of the legal distinctions between the “immigrant” and “citizen” status of racial minorities, emphasizing instead their membership in their cultural group. Cultural and linguistic difference was to deWne the relation between “Canadians” and “immigrants,” between nationals and outsiders, with both categories becoming thus racialized. The adoption of multiculturalism accompanied the liberalization of immigration and citizenship policies to allow increased immigration from the global South. Economic growth in the post-war period demanded the increased provision of labour and, whereas immigration policies from confederation until the 1960s had overtly distinguished between “preferred” and “non-preferred” races, the adoption of the point system in the 1970s removed explicitly racialized restrictions (Hawkins 1989; Bolaria and Li 1985). Consequently, immigration from Asia and other parts of the global South, including from Muslim societies, outpaced that from European source countries by the 1980s. While advocates of multiculturalism have pointed out that this policy has served to make for a more inclusive citizenship for cultural minorities, critics have argued that multiculturalism transposed colonial and racialized power inequalities deeply embedded within the political economy onto the terrain of “cultural difference” (Das Gupta 1999; Bannerji 2000). As such, the policy aided the transition from the discourse of race to that of culture and language in deWning nationhood and its alterity – a process that has been termed by Sherene Razack (1998) as the “culturalization” of race. Multiculturalism has also been taken to task for reproducing gendered orientalist tropes that represented immigrant women as the passive victims of their “traditional” cultures and traditions (Razack 1998; Bannerji 2000). Such constructs of racialized gender feed the assumption that the lives of women of colour are to be understood in terms that are starkly different from those that account for the experiences of “Canadian” (white) women, who are deWned as representing the norm. In being reduced to a matter of cultural and traditional deWciency, gendered inequalities become normalized, if not overtly sanctioned, as being widely pervasive and culturally acceptable within immigrant communities. The experiences of women of colour thus become deWned as unmediated by history, changes in the geopolitical order, or border crossings, except to the extent that


crossing the border into Canada is seen to offer them a much needed escape from their own backgrounds and communities. Notwithstanding the critiques that point to the various shortcomings of ofWcial multiculturalism, as state policy, it has undermined the notion of the nation as homogeneous. For however tepid the policy’s recognition of the “contributions” of ethnic and racial minorities, and despite its reproduction of the cultural reiWcation of immigrant communities, the policy nevertheless implicitly recognized that people of colour had legitimate claims to inclusion in citizenship. This recognition of the heterogeneity of the population, even if the “core” of the nation was preserved as essentially “white,” enabled racialized others a political space within which to negotiate their demands for inclusion. It is this political space – limited, marginalized, and retrograde as many critics have pointed it out to be – that came under increasing attack during the last decade of the twentieth century. In her study of multiculturalism, Eva Mackey (2002) travelled across the province of Ontario observing celebrations of “national” events and interviewing organizers and participants. She sums up her Wndings: [D]uring the “identity crisis” of 1992, many white Canadians saw multiculturalism as disempowering them, and as a threat to the unity, national identity and progress of Canada. A sense of insecurity, uncertainty and crisis fed a backlash to the gains made by minorities, a backlash which was not framed as an overt defence of whiteness, but rather ... as a defence of national identity and unity. Many believed that cultural pluralism weakened an already crisis-ridden and insecure national identity, and that to bolster itself Canada should be deWned on the basis of Canadian-Canadian culture, and “Canada Wrst.”

Although Mackey’s Wndings are corroborated by Lisa Jakubowski (1997), who also found a growing anxiety regarding the consequences of cultural tolerance, the latter deWnes this anxiety not as a backlash but instead as a “scapegoating” of immigrants by the state. The large national deWcits and shrinking state funds for health, education, and social welfare of the period led to a decline in the provision of social services, and immigrants became a handy scapegoat for cutbacks to social programs. Jakubowski found that public opinion polls reXected this increasing tendency to link immigrants with an abuse of the welfare system. I have also noted elsewhere (2000) how these concerns regarding the social and economic “costs” of immigration to the nation centred on the body of the immigrant woman as an economic “dependent” siphoning off precious social resources and as the “reproducer” of the cultural difference threatening national fragmentation. This resurgent racism and an increasingly vocal

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criticism of multiculturalism provided the context within which the attacks of 9/11 occurred. Nationalizing a Resurgent “West” Following the 9/11 attacks on New York and Washington, President George Bush claimed that the cause was the irrational hatred of the Islamists for the Western values of democracy and freedoms. The perpetrators were “evildoers” who were bent on destroying “open” societies. This explanation was readily repeated by political and media elites in North America: “There are people who hate America, they hate what we stand for, they hate the fact that Democrats and Republicans both love our country equally. They hate the idea that we worship freely. They hate the concept that we debate issues in the open. They hate freedom. They just hate it. And they are going to hurt us; they are.”9 “History has called America and our allies to action, and it is both our responsibility and our privilege to Wght freedom’s Wght.”10 In such statements, the president drew – unwittingly perhaps – upon the Hegelian concept of history as the march of the West towards progress (Young 1990). With the rise of reason and rational government, history’s challenge was met by Western civilization in the form of the bourgeois liberal-democratic order, with the rest of the world following under benevolent European – subsequently Euro-American – tutelage. This representation of the American nation as the leader of the West and the beacon of democracy and freedom in the world, especially for women, quickly became key to legitimizing the war on terror. The claim that democracy and freedom, especially for women, were the real targets, not US foreign policy in the Middle East and Central Asia rapidly became part of common-sense understandings widely circulated in the media. “Grieving Americans face lost innocence,” read the headline of a report in the Globe and Mail (Lewington 2001). “Someone took revenge on America, and America was helpless,” argued another columnist in the same newspaper in a column entitled “U.S. Will Never Be the Same” (Wente 2001a). “World Braces to Combat a Deadly, Invisible Foe” and “Resolute President Talks Tough on Terror” were the titles of other reports (Appleby 2001; Koring 2001). Such reports exalted the United States (and the West) as superior and innocent, attacked for no understandable reason by an enemy that did not play fair. Whereas much of the discourse of the “West and the rest” treats the development of the West as “the result of forces largely internal to Europe’s history and formation,” Stuart Hall (1996, 187) has pointed out that this “development” was instead very much a “global story.” It was in relation to, and in contrast with, the “rest” that the West developed its own sense of identity, just as it was in relation to the wealth of its colonies that Europe was able to develop its economies. Sophie Bessis (2003, 13) concurs with Hall:


Modern Europe, which really began to see itself as such only in the course of the sixteenth century, Wrst invented itself around a series of myths, each based on a rejection. Of course, all civilizations have been built upon founding myths. But, unlike in the great systemic cosmogonies, it was at the moment that Europe lay claim to Reason that it developed its own founding myths. It was then that a selective reading of their history began for people in the West, and that the East began to change and disappear from the modes of European thought that became dominant over the succeeding centuries.

Hall identiWes four critical aspects of the concept of the West: (1) it enables classiWcation of societies into separate categories; (2) it conjures up certain images of societies – that is, developed, industrialized, and urban; (3) it provides a standard for comparison; (4) it provides evaluative criteria – that is, developed equals “good” and underdeveloped equals “bad” (Hall 1996, 186). The constant invoking of the concept of the West by the media in its reporting of the war mobilized these four aspects of its implicit meaning. If the American nation was being imagined in terms of its self-avowed status as the beacon of the civilized West, innocent and wounded, how was this Manichean discourse received in Canada? In the immediate aftermath of the attacks, the exaltation of the West was one of the central themes in Canadian media reports, and it shaped the overarching framing of the subsequent war on terror. A deep identiWcation with the United States was articulated in the embrace of the discourse of the West, which explicitly equated the concept with civilization. The Canadian nation was imagined as being a part of this West. “Shocked world leaders called the suicide assaults on New York’s World Trade Center and the Pentagon in Washington a declaration of war on civilization,” reported the National Post (Wattie 2001). “Despite our differences [with the US] we have common interests, a common language, common heritage and a common culture – as emblazoned on the Peace Arch: ‘We are children of a common mother’ ... The enemy we face together is anti-modern medieval religious fanaticism,” opined a group of experts (Maloney, Hennessy, and Robertson 2001). Even commentators with liberal leanings who called for calm and cautioned against “the search for scapegoats” nevertheless reproduced this framing of events. The attacks, argued one such commentator, were “also far more” than an attack on the United States: “It’s also an attack on the notion of civil society itself and, at yet another level, it is an assault on advanced civilization as a precept ... If the attackers do indeed prove to be Islamic fundamentalists waging a renewed jihad against the U.S., it will mark a new Xaring of tensions between Christian Europe and the Islamic Middle East that have endured for 1,500 years and still convulse the Balkans today” (Hume 2001).

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Racialized constructs of Arab/Muslim masculinity as a potent threat to “civilization” also emerged early in the reports. “Those who are responsible are most likely men from remote desert lands. Men from ancient tribal cultures built on blood and revenge. Men whose unshakeable beliefs and implacable hatreds go back many centuries further than the United States and its young ideas of democracy, pluralism and freedom,” explained one journalist (Wente 2001a). As noted earlier, photographs of a “turbaned” and “bearded” Osama bin Laden were also repeatedly featured in news reports (Wong 2001). Photographs of Taliban men and other nameless Afghans were prominently displayed in newspapers as well. The beards and turbans of these men were made to signify not only their adherence to Islam but also an innate propensity for violence and the hatred of women. Nor was the theme of the entire West having come under attack to dissipate in the months following 9/11. One year after the attacks, a leading media commentator argued: “We are a haven to several underground terrorist groups. And, of course, we are part of the West, which Osama bin Laden and his cohorts see as their oppressor” (Gee 2002). Around the same time, the Liberal deputy prime minister was reported to have stated: “We have always said that Canada is under threat, that the attacks on Sept. 11 were an attack on democracy and we have always known ... that this was a fact and that this was continuing” (Trickey 2002, A8). “All urban, industrialized, democratic societies are vulnerable to terrorism,” opined an expert on security and intelligence issues who was writing in the Globe and Mail (Wark 2002). Stressing the “common values” shared by Americans and Canadians, Paul Martin, soon to be prime minister, stated in an interview that once in ofWce, he would seek a more “distinctive” Canadian international stance and stronger military ties with the United States: “That certainly doesn’t mean going along with the United States. What it means is doing what we think is right. And a lot of times that will be what the Americans think, because we do have a pretty common set of values” (Kennedy 2003). In a speech to the Empire Club of Canada, Liberal trade minister Pierre Pettigrew commented that “[b]eing next to the United States of America is a privilege. I mean there is no better place on the planet ... We represent for the rest of the planet a light in the world” (Chase 2003). A Liberal senator tabled a private bill that sought to designate 11 September as “America Day” in Canada ( Naumetz 2003). The broadsheets remain littered with such examples, normalizing the equation of US-Canada interests in the war on terror and presenting such assertions as beyond question, thus reproducing them as self-evident truths. The show of support for the United States in the Canadian media, even if sometimes tinged with a certain amount of criticism, and the claiming of the US war as “our” war are interesting examples of what Inderpal Grewal


has so aptly termed “transnational nationalism.”11 Claiming ownership of the war as equally “ours” was a discursive strategy that invited Canadians to imagine their interests as being synonymous with those of the Bush administration in the war on terror. It encouraged Canadians to see themselves as potential targets for future attacks on the scale of 9/11, sharing an equal danger – from the same “enemy” – as the United States. It encouraged all women to fear the power of fanatic “tribal” Muslim men and to imagine themselves as personally endangered by these men. Here, it should be noted that Canada was indeed mentioned speciWcally in an alleged threat made by Al Qaeda after the attacks on Afghanistan. The threat identiWed Canada, along with a number of other US allies, as potential targets because of their participation in the war on Afghanistan. This threat, however, was presented in the media as having been made because Canada is “open” and democratic, not because of its decision to participate in the attacks on Afghanistan: “Even if Canadians had not played such an active role in Afghanistan, our closeness to the U.S., as well as our openness as a society, would have made us an obvious target,” opined a national columnist (Gee 2002). An editorial in another national newspaper supported this contention, arguing that because Canada stands for a host of values, such as “an open society, democracy, religious tolerance and respect for diversity,” it was “inevitable” that the country would become a target (“How Canada Reacts” 2002). Such statements re-invoked the older racialized deWnitions of the Canadian nation as Western (white), and they transformed a very particular attack on the United States into a generalized attack on the West and, by extension, on Canada. The West becomes redeWned as having a homogeneous identity and uniWed interest in relation to its “Islamic” other. Best encapsulated in the thesis of the “clash of civilizations,” this narrative posits the two civilizations as inherently antithetical and irreconcilable (Huntington 1993). It presents both Islam and the West as monolithic, and the hybridity and heterogeneity within them are rendered invisible. Tariq Modood (2002, 194), among other scholars, has rejected the idea of the “clash of civilizations,” arguing instead that “Islam, with its faith in the revelations of Abraham, Moses, Jesus and Mohammad, belongs to the same tradition as Christianity and Judaism.” Modood cites obvious similarities such as the shared “monotheism, legalism and communitarianism” of these religions as well as many of their shared dietary regulations in support of his position (ibid.). While the extent of the similarities shared by these religions and the heterogeneity within them is clearly a matter for debate, the clash of cultures was presented as self-evident and expounded to the exclusion of all other perspectives in the wall-to-wall media coverage. In this manner, rather than just reporting on a backlash against Muslims, the print media was actively furthering racialized deWnitions of

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nationality such that they excluded Muslims, representing them instead as the most dangerous threat to the nation. Moreover, this clash of cultures thesis served to mask the long-term commitments and underlying interests of the United States and Canada in Afghanistan, Iraq, and other Middle Eastern and Central Asian countries.12 As Mahmood Mamdani (2002, 45) has noted, such “culture talk” avoids history and politics and “downplays the crucial encounter with colonial power” that shapes the relationship of the U.S. to the Middle East and Central Asia in the current geo-political order. Mamdani argues that taking this history and politics into account means recognizing that militant Islamist movements are the outcome of contemporary political realities, such as the cold war hostilities between the United States and the Soviets, and the Central Intelligence Agency’s support for the revival of the concept of armed jihad through its alliances with various Mujahideen factions in Afghanistan during the Soviet occupation. The consequences of colonial and imperial domination, and the Third World’s contestation of the geo-political order, is a more accurate frame for understanding the current international conXict, he argues. Political analysis of this sort was readily available but completely marginalized and reviled in the mainstream media, thereby enabling the spread and popularization of the Bush administration’s perspective as the only legitimate one.13 The founding of the Canadian nation was, of course, predicated upon just this discourse with the colonization of Aboriginal peoples, the dispossession of their resources, and their concomitant ejection from the newly constituted Euro-Canadian nation (Monture-Angus 1995; Lawrence 2004). However, as discussed earlier, the overtly brazen assertions of the civilizational superiority of the Euro-West of the earlier half of the twentieth century were somewhat tempered in the period after the 1960s with the adoption of ofWcial multiculturalism and as the struggles of Aboriginal peoples for self-determination received increased international attention. The media thus resuscitated the nation’s older racialized claims of superiority in a global climate wherein anti-colonial and anti-imperialist movements had greatly discredited such claims in the post-Second World War period. The resurgence of this discourse enabled all those who were hailed as members of the Canadian nation to assert their own individual claims to civilizational superiority in relation to the nation’s others. The most obvious danger of the resurgence of this discourse was that it (again) erased the reality of Aboriginal presence in North America long before the arrival of the West, as it did the ongoing subjugation and resistance of Aboriginal peoples in the continuing development of the West on the American continent. It also expelled (again) the nation’s other other – that is, the immigrant/refugee – as outsider to the nation in cultural/civilizational terms, irrespective of their actual legal status. The reality that communities of


Muslims live within the nation’s territorial borders, that they have migrated in signiWcant numbers into Canada since the liberalizing of immigration policies in the 1970s, and that many of them are citizens was rendered irrelevant as the concept of the West became more deeply entrenched in daily life with every reassertion of its superiority, banal or otherwise, in the public sphere. The War on Terror as Women’s Liberation Feminist scholars have pointed out that in addition to being racialized, the concept of the West is also deeply gendered (Mohanty 1991). The status of women has historically been used to serve as a crucial signiWer of the modernity of the West against the purported traditionality of the “rest.” European colonizers claimed to subscribe to the value of gender equality in order to legitimize their civilizing mission. They claimed that their societies proffered greater rights and freedoms to their women, despite the reality of European women’s continued subjection to patriarchal control and oppression (see Ahmed 1992; Sangari and Vaid 1989; and Mohanty 1991). In the “post-colonial” era, the West continued to be popularly presented as a site of democratic rights and freedoms for women, with their equal integration into public life being a cherished value. The “non-West,” on the other hand, was constructed in the Western imagination as a site of terrible oppression and violence for women, where practices such as forced marriages, dowry deaths, honour killings, and female genital mutilation are said to characterize their lives (Razack 1998; 2004). These forms of violence against Third World women have been generalized as inextricably associated with their cultures, while the forms of violence that Western women are subjected to are never deWned as emblematic of their cultures (Narayan 1997). Notwithstanding the reality of various forms of patriarchal practices within Western societies, European powers nevertheless used particular patriarchal practices within non-Western countries to further their occupations and the restructuring of these countries (Ahmed 1992; Sangari and Vaid 1989). Drawing upon these Orientalist and gendered tropes, the war on terror dramatically interjected gender into the centre of global political debates as the Bush administration and its allies identiWed the “liberation” of Afghan women as a key policy objective in their war on Afghanistan. Western powers deWned gender relations as the marker of their difference from the Islamic world, and Western women were encouraged to support an imperialist war as beneWcial to Third World women. As the media promoted this gendered/racialized discourse, it reduced public space for feminists to confront the growing inequalities Canadian women were experiencing as a result of two decades of signiWcant cutbacks to social spending (Pulkingham and Ternowetsky 1996).

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Images of gun-toting Muslim men and boys saturated media coverage (National Post, 12 September 2001; Vancouver Sun, 12 September 2001; National Post, 13 September 2001; National Post, 19 September 2001; Vancouver Sun, 12 September 2001). Osama bin Laden, immediately linked to the attacks, was said to subscribe to “an extremist ideology backed, in his view, by heavenly decree; an ideology which advocates the wholesale slaughter” (Vincent 2001). DeWning “radical Islam” as the enemy, one commentator argued, “Who else trains cadres of fanatical suicide murderers who go to their deaths smiling ... Why do they smile? Because they are dying not out of desperation but out of conviction. They have been taught to believe that murder/martyrdom gives them immunity from pain and gives them immediate entry to heaven, where 71 black-eyed virgins await their pleasure” (Krauthammer 2001). The violence perpetrated by suicide bombers against the United States was presented as really being a means to gain access to “71 black-eyed virgins.” While Osama bin Laden was named as the “prime suspect” immediately after the attacks (Manthorpe 2001, A14), other predominantly Muslim countries were also quickly implicated: “The reality is that any successful war against terrorism will also have to be waged against nations such as Libya, Afghanistan, Syria, Iraq and Iran” (Bercuson 2001, B4). Moreover, the new border control policies put into place immediately, as well as the attacks on Muslims in North America (described popularly as a “backlash”) meant that the differences between Muslims in the West and in other countries – between those who were citizens of the United States and Canada and those who were citizens of predominantly Muslim countries – became less relevant than their identity as Muslims. All came to be constructed as suspect and potentially dangerous to the national security of both the United States and Canada. Images of veiled Afghan and other Muslim women and girls also acquired unprecedented visibility in the media (Vancouver Sun, 14 September 2001; Vancouver Sun, 15 September 2001; National Post, 13 September 2001) but for a speciWc purpose. This new visibility was used to mobilize support for US foreign policy and to silence its critics (National Post, 13 September 2001; Vancouver Sun, 15 September 2001; Vancouver Sun, 20 September 2001). Many of these images were displayed randomly and left without speciWc comment regarding gender relations (Vancouver Sun, 13, 14, and 15 September 2001). In these instances, the iconicity of the image of veiled women inherently gestured to the misogyny alleged to permeate Muslim societies. The trend of connecting (sometimes even equating) “terrorist” violence with misogynist violence has continued as other media attention, most speciWcally documentaries, turned to the banning of Afghan women from public life by the Taliban regime but removed this action from its historically or politically speciWc context and reduced it to the


purportedly unchanging and timeless practices of Islamic cultures (Shah 2002; Armstrong 2004; Pazira and Jay 2002). Although individual Afghan women such as Dr. Sima Samar, who was to serve (brieXy) in the Karzai regime, were lauded for their personal bravery in challenging the Taliban’s gendered dictates, these women were treated as exceptional (Armstrong 2004; Knox 2003). The image of the veiled woman, as the icon of victimized and passive Afghan/Muslim womanhood, overwhelmed all other images and representations. In the weeks following the invasion of Afghanistan, notably absent from media coverage was the discussion of the impact of US foreign policies and of the US-led bombings on Afghan women. The opposition of some Afghan women’s groups to the war was also ignored. Media reports and analysis did not allow the addressing of Afghan women’s oppression within political-economic terms nor in the context of patriarchal global colonialist and imperialist practices, but only in the essentialist terms of the “backward” cultural practices of “Muslims” and their medieval civilizational values. As Mamdani (2002) has noted, Muslims have been constructed as either “good” or “bad” in the United States in the post-9/11 period. In the Canadian imaginary, Muslims have likewise been constituted as either “good” or “bad,” and the question of gender relations has been central to the drawing of this distinction. Only assimilated Muslims are deWned as “good,” and they distance themselves from the “bad” Muslims, particularly the Muslim women who wear the veil (whether the headscarf or the full chador). “Good” Muslims support the United States and its global ambitions, which they are routinely and publicly called upon to defend. They are also expected to be grateful to the West for including them in its civilizing mission. Those among them who are loyal to the empire and offer to help the West to “liberate” their co-religionists, especially the women, have been given access to the media and to other resources in order to prove their “goodness.” The colonial strategy of divide and rule, of separating the “good” natives from the “bad” has a long history, and in Canada it can be traced to the period when Aboriginal peoples were deWned as either “noble savages” or “violent savages” (Francis 1992). However, as many have argued, both constructs were used to legitimize and rationalize the physical or cultural extinction of these populations. With the war on terror, “good” Muslim women are deWned as those who willingly adopt Western gender and sexual norms. As they denounce their co-religionists for refusing to adopt these values and norms, the latter are deWned as needing to be rescued from their religion and culture and from their families and communities (Nuttall-Smith 2002; Wente 2004).14 This “good” woman can be saved by the civilized nation, and she can also be allowed to practice her religion as long as it is within the parameters found

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acceptable by the US state. The media has deWned the stereotypical image of the “good” Muslim women as the burqa-clad Afghan woman, voiceless and passive but, nonetheless, grateful to the West. However, as the war on terror developed, signiWcant media coverage was also given to the “bad” Muslim woman. These women were presented not as silent and passive but as a dangerous threat. They included the “black widow” of Chechnya, the suicide bomber of Palestine, the “doctor germ,” and “Mrs. Anthrax” of Iraq. These women were deWned as fanatics beyond rescue, and they were as dangerous as the men. The “worst” of these women, as well as the worst of the Muslim women living in the West, were said to be those who refused to unveil themselves, who insisted on wearing their hijabs. A photograph of a crowd of chador-clad women, holding signs that read “Islam yes; Seqular no,” appeared in the Globe and Mail, accompanied by the headline “The West and the Worst” (27 March 2004). These women, who were demonstrating in Tehran against the banning of the headscarf in France, were labelled as “the worst.” Muslim women who contested the popular representations of the West as feminist, who rejected the claim that the war would “liberate” Muslim women, were treated as insensible of their own interests and the dupes of hyper-patriarchal men (Taber 2001; McMartin 2001; “Just Another Chance to Berate the Americans” 2001, A16). In their defence of Islam, and in their resistance to the invasions and occupation of their countries, these women were deWned as a threat to Western civilization. The presence of women of colour has been a site of considerable anxiety for the Canadian nation since its foundation. Women’s bodies, as the markers of racial, cultural, and national difference, have been constructed as primarily responsible for transmitting such “difference” onto subsequent generations (Dua 2000). Media representations attest to the anxiety regarding these women’s commensurability with “national” values and practices in the public narrations of the cultural deWciency that is said to shape their lives.15 News reports of these women largely focus on them as “victims” of what Uma Narayan (1997) has Wttingly termed “death by culture.” As discussed earlier, the violence in these women’s lives is neatly reduced to their inherent cultural traits, and the nation is popularly presented as a site that affords them escape and gender liberation. Muslim women in the West became the cause for particular consternation after 9/11, and their bodies were deWned as the sites for the waging of the “clash of cultures.” These women’s adoption of Western values, of Western dress and lifestyles, lends legitimacy to the nation’s claims to civilizational superiority as marked by liberal gender norms. These women’s “modernization,” which is signalled by the level of their assimilation, upholds such claims. However, should they “lapse” into their “cultural” and “traditional” ways, for example, by adopting the wearing of the headscarf, or


the burqa or chador, the superiority and alleged universality of the nation’s values are threatened. If assimilation occurs successfully, their difference can be contained – indeed, it can be used to further the exaltation of the West. Yet no matter how deep the gratitude of the “good” Muslims, the newly implemented anti-terrorism measures made no distinctions between them and the “bad” ones. All became equally suspect. The publicly sanctioned racial proWling and other anti-terrorist measures recognized no differences between “good” and “bad” Muslims. For example, a Liberal Muslim senator who defended racial proWling was described as having been the target of such proWling herself (Aubry 2001, A1). She reportedly advised Muslims that “[i]t’s not meant towards you. I would rather that people be careful and people felt safe. I want people to Xy. It is very important for our economy to get back to normal” (ibid.). Feminist Responses The discursive formulation of the war on terror in mainstream print media has repeatedly presented it as a defence of the West and its superior civilizational values as well as being liberatory for Muslim women. Moreover, many women – both non-Muslim and Muslim – have often taken the lead in popularizing this discourse and have garnered signiWcant media coverage for their efforts. Presenting the Bush administration and its allies as quasi-feminist and styling themselves as committed to women’s equality, the spouses of President Bush and Prime Minister Tony Blair actively campaigned for public support for the war, presenting it as the means to liberate Afghan women. The active participation of these prominent women, as well as other women’s rights activists and some women’s organizations, has granted legitimacy to the war that it would have otherwise found difWcult (if not impossible) to acquire. As Sedef Arat-Koc (2002, 8) notes, images of victimized, passive, Muslim women and fanatically oppressive Muslim men “have comforted parts of the public who would otherwise question the moral legitimacy of the world’s strongest and wealthiest country waging a war against one of the poorest countries of the world, already devastated by more than twenty years of war.” Where the leaders of the Taliban had deWned the role of women as a key marker of their adherence to Islamic “law,” the Bush administration used the status of Afghan women under the Taliban regime as a major justiWcation of the war on terrorism, claiming to be working in the best interests of the women. Feminist scholars, writers, and activists, both Muslim and non-Muslim, have used numerous strategies to disrupt the hegemonic representations of Muslim women as homogeneous and as uniformly and universally oppressed. These strategies have included drawing attention to the colonialist and imperialist interests served by such constructs (Ahmed 1992;

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Arat-Koc 2002; Razack 2004; Thobani 2002); reinterpreting key Islamic scriptures and practices from women-centred perspectives (Hassan 1996); contesting monolithic constructs of “the Muslim woman” by highlighting the diversity of social status and political rights of women in various Muslim countries (Helie-Lucas 1993); contesting and re-imagining foundational nationalist and religio-political narratives through various literary forms and highlighting the agency of Muslim women in subversively appropriating and re-deWning “traditional” roles and practices (Afshar 1998; Sabbagh 1996); foregrounding the secularist and modernist forces at work within Muslim societies and the role of women within these (Afshar 1998); and re-examining women’s appropriation of contemporary gendered Islamist practices within the context of particular critiques of Eurocentric forms of modernity (Gole 1996; Abu-Lughod 1998). None of these strategies, critiques, and perspectives, all readily available, were allowed to encroach into media representations or discussions of Muslim women. Instead, the media’s treatment of feminists, who have historically had limited access to the media and little control over how they themselves are represented, followed a general trend. Women and feminists who reproduced the exaltation of the West were granted unprecedented access to air their views. Prime examples include the many interviews with Canadian feminists who were suddenly treated as experts on Afghanistan and Islam as well as the repeated broadcasts of documentaries such as those made by Sally Armstrong (Daughters of Afghanistan) and Nilufer Pazira and Paul Jay (Return to Kandahar). Both were initially, and repeatedly, broadcast on the Canadian Broadcasting Corporation. Muslim women who presented themselves as “moderate” and who contributed to upholding the “clash of civilizations” thesis, if not actively promoting it, and who supported the bid to “rescue” Afghan women from Afghan men, were given a space in the media that was very much like that granted to “anti-feminist” feminists in the last decade of the twentieth century (Chunn, this volume). An interesting example is the extensive coverage, extremely positive, given to Irshad Manji’s (2003) anti-Islamic diatribe, The Trouble with Islam: A Muslim’s Call for Reform of Her Faith (Wente 2003, A27).16 Calling herself a “Muslim refusenik,” Manji thus describes the trouble with Muslims: “Through our screaming self-pity and our conspicuous silences, we Muslims are conspiring against ourselves. We’re in crisis and we’re dragging the rest of the world with us” (Manji 2003, 3). Ending her book with the chapter, “Thank God for the West,” she reproduces the dichotomy of the “good” Muslim (refuseniks) and “bad” Muslim (“an army of automatons in the name of Allah”), which has become a standard feature of the war on terror rhetoric (ibid.). In contrast, feminists who challenged the pro-war rhetoric by raising questions about imperialism and the impact of North/South power relations


in causing the conXict, or who opposed US and Canadian foreign policy, were largely reviled and denigrated when given any coverage at all (discussed in Thobani 2002). Such opposition was called “hate-Wlled discourse” and “moronic opinion” ( Tonner 2001), “mean-mouthed” and “venom” (“Diatribe Can’t Go Unanswered,” 2001, A18), and just plain “nutty” (McMartin 2001). Feminists who challenged the common-sense rationale for Western intervention in the name of women’s equality that was produced for mass consumption by the media were treated as misguided and misinformed at best and as apologists for terrorism at worst. In this manner, what was popularly presented as an understandable backlash against Muslims by misguided, sometimes ignorant, but generally well-meaning nationals for the attacks of 9/11 re-invoked racial constructs of who belongs to the West (white nationals) and who presents a danger to the nation (immigrants and refugees who “look” like Muslims). SigniWcantly, such media representations also enabled a silencing of feminist concerns about the serious losses currently being experienced by all women in Canada, as they are in other Western countries. For if the West was indeed “innocent,” attacked only because of its civilizational superiority, and ready to go to war to save Muslim women, on what bases could feminist critiques about the erosion of women’s rights and the increasing male power and privilege be given credence? Conclusion Over the last decade of the twentieth century, there was a marked reduction in media reporting of feminist struggles against women’s ongoing inequalities within Canadian society, which were being further exacerbated as a result of the neo-liberal policies of the state (Chunn, this volume). Moreover, the ground lost by feminists in the media was increasingly given over to those propagating an anti-feminist discourse in the name of a popular backlash. In the post-9/11 period, there has been a startling increase in the public attention paid to women’s inequalities, but almost all of it has been focused on Muslim women and Islamic societies. I have argued that this increased attention has served to legitimize the war on terror and thus represents a serious setback for anti-racist feminist struggles. Further, although popularly cast as a backlash to the attacks of 9/11, the print media’s reproduction of a virulently anti-Islamist discourse in Canada has helped to mobilize Canadian support for the invasion and occupation of Afghanistan. The casting of 9/11 as not only an attack on the United States but also as an attack on the West and its entire system of values enabled the US administration to refashion a commonality of interest among those nations historically included in the project of the West. In Canada, the print media have played no small role in the success of this strategy thus far.

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With a deep and long history of racialized exclusions/inclusions constituting deWnitions of Canadian nationhood, the state used the attacks of 9/11 as a moment to intensify this racialization of its domain. Opposition to the war on terror was construed not only as a refusal to support the United States and its foreign policies but also as an attack on the Canadian nation itself. Such opposition was also equated with support for, if not actual complicity with, terrorism as numerous reporters, columnists, and editorialists gave the Bush “doctrine” wider legitimacy and international credibility. Making the Bush “doctrine” the appropriate frame for Canada’s response to the war on terror, this strategy has furthered the (re)deWning of the Canadian nation-state as part of the West, greatly undermining the country’s pre-9/11 multiculturalist commitments. Given that some feminists, non-Muslim and Muslim, have acquired political currency and respectability by contributing to the gendered exaltation of the West, anti-imperialist feminists need to respond to the growing anti-Muslim/anti-immigrant sentiment as well as to the racialized imagining of Canadian nationhood as uncontestably Western. As Sedef Arat-Koc (2002) notes, an unproblematized “global sisterhood” that fails to attend to power relations has reproduced the discourse of “us” and “them” – a discourse that can serve imperialist interests. Whether feminists in Canada are able to effectively develop anti-imperialist and antiracist theory and practice, and how effectively they are able to do so, will determine whether “feminism” will be able to transcend its historic collusion with colonial and imperial relations.

Acknowledgments This chapter would not have been possible without the assistance of the Hampton Research Fund grant from the University of British Columbia. I would like to thank Rupa Bagga, Itrath Syed, and Almas Zakiuddin for their assistance on this project as well as the editors of this collection for their valuable comments and suggestions. Parts of this chapter were previously published in Chapters 2 and 6 of Exalted Subjects: Studies in the Making of Race and Nation in Canada ( Toronto: University of Toronto Press, 2007). Notes 1 The expression of this sentiment was not conWned to Canada. See also J.L. Colombani in Le Monde (2001) and correspondent Alan Freeman, based in London, England, in the Globe and Mail (2001, A6). 2 The concept of the “elite” was pioneered by the renowned sociologist C.W. Mills (1956, 4) in his examination of the hegemonic role of dominant groups within society. Mills argued that these groups exercise power across various sectors of society, including the state apparatus, the corporate sector, the military establishment, and the “strategic command posts of the social structure” by virtue of their wealth, status, and celebrity. 3 The New Democratic Party recorded 173 “publicly identiWed incidents of racism” in the three weeks following the 9/11 attacks, and the Muslim Civil Liberties Association counselled women wearing the hijab from entering public spaces (Abu-Laban 2002). In British Columbia, parents were advised to keep their children from attending schools by the BC Muslim Association.


4 Hackett and Gruneau (2000, 51) deWne the Canadian Press, in particular, as “almost a central nervous system, for national and international news.” 5 By “news frame,” Pippa Norris, Montague Kern, and Marion Just (2003, 4) mean the “persistent patterns of selection, emphasis, and exclusion that furnish a coherent reinterpretation and evaluation of events.” 6 An exception to this gender-blind analysis is Yasmin Jiwani’s (2004) study of Québec’s English-language press. Jiwani found that the Montreal Gazette’s reporting “did not depart from the existing pool of stereotypical images” of the orientalized body (287). 7 Coverage of the attacks of 9/11 completely dominated the reporting in these newspapers during this period. Reports referring to the attacks in the Globe and Mail were as follows: 79 out of a total of 105 on 12 September 2001; 85 out of 139 on 13 September 2001; 88 out of 121 on 14 September 2001; and 90 out of 132 on 15 September 2001. Reports in the National Post were: 91 out of 130 on 12 September 2001; 100 out of 177 on 13 September 2001; 75 out of 210 on 14 September 2001; and 66 out of 210 on 15 September 2001. In the Vancouver Sun, the Wgures were: 91 out of 147 on 12 September 2001; 54 out of 127 on 13 September 2001; 58 out of 131 on 14 September 2001; and 59 out of 137 on 15 September 2001. 8 Situating multiculturalism within the larger “bilingual framework,” the multiculturalism policy adopted by the Liberal government privileged the English and French languages and cultures as the larger framework within which were to be placed the “multicultures” of ethnic and racial minorities. See Prime Minister Trudeau’s speech to the House of Commons, 8 October 1971, http://www.pch.gc.ca/progs/multi/pubs/speeches/2003_11_20_ e.cfm. 9 “Remarks by President George Bush to Business Leaders, President Calls on Senate to Act on Terrorism Insurance Legislation,” April 2002, posted on the White House website, http://www.whitehouse.gov/news/releases/2002/04/20020408-17.html. 10 President Bush’s State of the Union Address, 29 January 2002, http://www.whitehouse.gov/ news/releases/2002/04/20020408-17.html. 11 Inderpal Grewal (2002) made this point in her keynote address at the Critical Race Theory in the Academy Conference at the Ontario Institute for Studies in Education at the University of Toronto in May 2002. 12 A number of writers have argued that the war on terrorism is an imperialist project, which the United States has undertaken in order to extend its reach over the vast oil and natural gas resources of Central Asia as well as to protect its position as the world’s hegemon. These writers have included Noam Chomsky (2001), Robert Fisk (2002), Arundhati Roy (2004), and so on. See also Sunera Thobani (2002; 2007). 13 US-based public intellectuals such as Edward Said (2003), Noam Chomsky (2001), Howard Zinn (1980), and countless others who have written extensively about the imperialist role of the United States in Latin America and the Middle East have been long excluded from the mainstream media, but it was striking that this exclusion continued in the post-9/11 period when the question of why the 9/11 attacks had occurred was a question repeatedly asked in and by the media. 14 Sherene Razack (2004) has discussed the constitution of Muslim women in Europe as being “imperilled” by Muslim men and their communities in the context of the antiforced marriage campaigns in several countries. 15 “Cultural conXicts, arranged marriages, oppressive cultures, exotic dress and foods – these are the stock in trade of the press’s coverage of racialized women,” notes Yasmin Jiwani (1998, 61). 16 See also Irshad Manji in the New York Times (2004, A29). References Abu-Laban, Yasmin. 2002. “Liberalism, Multiculturalism and the Problem of Essentialism.” Citizenship Studies 6(4): 459-82. Abu-Lughod, Laila, ed. 1998. Remaking Women: Feminism and Modernity in the Middle East. Princeton: Princeton University Press. Afshar, Haleh. 1998. Islam and Feminism: An Iranian Case-Study. New York: St. Martin’s Press.

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Lessard, Hester. 1999. “Farce or Tragedy?: Judicial Backlash and Justice McClung.” Constitutional Forum 10(3): 65-72. Lewington, Jennifer. 2001. “Grieving Americans Face Lost Innocence.” Globe and Mail, 12 September, A13. Mackey, Eva. 2002. The House of Difference: Cultural Politics and National Identity in Canada. Toronto: University of Toronto Press. McMartin, Pete. 2001. “Free Speech in a Pristine Vacuum.” Vancouver Sun, 3 October, A7. Maloney. Sean M., Michael A. Hennessy, and Scot Robertson. 2001. “An Attack against Us All.” National Post, 12 September, D7 Mamdani, Mahmood. 2002. “Good Muslim, Bad Muslim: A Political Perspective on Culture and Terrorism.” In Eric Hershberg and Kevin W. Moore, eds., Critical Views of September 11: Analyses from around the World, 44-60. New York: New Press. Manji, Irshad. 2003. The Trouble with Islam: A Wake-Up Call for Honesty and Change. Toronto: Random House. Manthorpe, Jonathan. 2001. “Prime Suspect Osama Bin Laden: Saudi Is Already on U.S. Most Wanted List.” Vancouver Sun, 12 September, A14. Mills, C. Wright. 1956. The Power Elite. New York: Oxford University Press. Mitchell, Alanna. 2001. “Canadian Muslims, Arabs Anxious: Many Fear Opposition to Bombing Will Lead to Further Backlash Against Communities.” Globe and Mail, 12 October, A1. Modood, Tariq. 2002. “Muslims and the Politics of Multiculturalism in Britain.” In Eric Hershberg and Kevin W. Moore, eds., Critical Views of September 11: Analyses from around the World, 193-208. New York: New Press. Mohanty, Chandra T. 1991. “Under Western Eyes: Feminist Scholarship and Colonial Discourses.” In C.T. Mohanty, Ann Russo, and Lordes Torres, eds., Third World Women and the Politics of Feminism, 51-80. Bloomington: Indiana University Press. Monture-Angus, Patricia. 1995. Thunder in My Soul: A Mohawk Woman Speaks. Halifax: Fernwood Press. Narayan, Uma. 1997. Dislocating Cultures: Identities, Traditions and Third World Feminism. New York and London: Routledge. Naumetz, Tim. 2003. “Senator Would Like Canada to Honour the U.S. on Sept. 11.” Vancouver Sun, 24 September, A3. Norris, Pippa, Montague Kern, and Marion R. Just, eds. 2003. Framing Terrorism: The News Media, the Government and the Public. New York: Routledge. Nuttall-Smith, Chris. 2002. “The Culture behind Pakistan’s Gang-Rapes.” Vancouver Sun, 27 July, A17. Pazira, Nelofer, and Paul Jay. 2002. Return to Kandahar. Produced, directed, and edited by Paul Jay and Nelofer Pazira. Produced by Icebreaker Films and j Films, in association with the Canadian Broadcasting Corporation. Pulkingham, Jane, and Gordon Ternowetsky, eds. 1996. Remaking Canadian Social Policy: Social Security in the Late 1990s. Halifax: Fernwood Publishing. Razack, Sherene. 1998. Looking White People in the Eye. Toronto: University of Toronto Press. –. 2004. “Imperilled Muslim Women, Dangerous Muslim Men and Civilised Europeans: Legal and Social Responses to Forced Marriages.” Feminist Legal Studies 12: 129-74. Roy, Arundhati. 2004. An Ordinary Person’s Guide to Empire. Cambridge, MA: South End Press. Sabbagh, Suha, ed. 1996. Arab Women: Between Difference and Restraint. New York: Olive Branch Press. Said, Edward. 2003. “The US Is Preparing to Attack the Arab World, While the Arabs Whimper in Submission.” Guardian, 25 January. Sangari, Kumkum, and Sudesh Vaid. 1989. Recasting Women: Essays in Colonial History. New Delhi: Kali for Women. Shah, Amir. 2002. “’Virtue and Vice’ OfWcials Return.” Vancouver Sun, 13 August, A9. Silverstein, Paul A. 2004. Algeria in France: Transpolitics, Race, and Nation. Bloomington: Indiana University Press. Slobodian, Linda. 2001. “Muslim Women Targets of Anger.” Calgary Herald, 16 September, D1.


Small, Peter. 2001. “Spiritual Leaders Alarmed at Anti-Muslim Incidents.” Toronto Star, 15 September, A8. Taber, Jane. 2001. “One Crisis, Two Responses.” National Post, 2 October, A1. Thobani, Sunera. 2000. “Nationalizing Canadians: Bordering Immigrant Women in the Late Twentieth Century.” Canadian Journal of Women and the Law 12(2): 279-312. –. 2002. “War Frenzy.” Meridians: Feminism, Race, Transnationalism 2(2): 289-97. –. 2007. Exalted Subjects: Studies in the Making of Race and Nation in Canada. Toronto: University of Toronto Press. Tonner, Mark. 2001. “There Was Respite from the Hate-Mongers, Albeit Brief.” Province (Vancouver), 5 October, A34. Trickey, Mike. 2002. “Canada ‘Takes Terror Threat Seriously’: Manley Says No Need for Greater Level of Security.” Vancouver Sun, 14 November, A8. Vincent, Isabel. 2001. “Bin Laden Believes Terror Is His ‘Heavenly Decree.’” National Post, 12 September, D1. Wark, Wesley. 2002. “Learning to Live with Terror.” Globe and Mail, 15 November, A17. Wattie, Chris. 2001. “America Vows Revenge as Terror Claims Thousands.” National Post, 12 September, A1. Wente, Margaret. 2001a. “U.S. Will Never Be the Same.” Globe and Mail, 12 September, A1 and A10. –. 2001b. “We’re All Americans Now.” Globe and Mail, 13 September, N3. –. 2003. “The Muslim Refusenik.” Globe and Mail, 20 September, A27. –. 2004. “Life under Sharia, in Canada?” Globe and Mail, 29 May, A21. Wong, Jan. 2001. “Attacks Spawn Racial Backlash.” Globe and Mail, 17 September, A8. Young, Robert. 1990. White Mythologies: Writing History and the West. London: Routledge. Zinn, Howard. 1980. A People’s History of the United States. New York: Harper Colophon Books.

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Part 2 Sexual Terrains: Criminal Law and the Campus


5 The Discursive Disappearance of Sexualized Violence: Feminist Law Reform, Judicial Resistance, and Neo-Liberal Sexual Citizenship Lise Gotell

An investigation of the contemporary legal treatment of sexual violence provides important insight into how the structured inequality of most Canadian women is increasingly being rendered invisible. The trajectory of public response to feminist anti-violence work has moved from outright denial, to recognition, to backlash and “re-privatization.” Second-wave feminist activism succeeded in “breaking the silence” around sexual violence and, for a brief period, inserting sexual assault onto the political agenda as a pervasive social problem requiring government intervention. Yet, as I will argue, a new form of site-speciWc silence is being established in which sexual violence becomes unhinged from gendered, and other relations of, social power, removed from the terrain of the social and the political, and increasingly contained within the individualized frame of criminal law. Sexual assault law reforms over the 1990s gestured towards feminist discourses of sexualized violence, speciWcally by incorporating a recognition of the pervasiveness and gendered character of sexual assault, reformulating legal standards of consent, and restricting the use of sexual history evidence and conWdential records. Interrogation of 106 sexual assault cases in the period from 1999 to early 2004 suggests, however, that the gendered context of sexual violence is rarely acknowledged and is most often explicitly resisted in judicial discourses. My research analysis thus highlights how sexual violence is being re-privatized and depoliticized through the articulation of liberal legalistic discourses of rape. As I argue in this chapter, developments within law cannot be disarticulated from the broader political, economic, and social context. The sexual assault law reform efforts of the 1990s that engaged feminists in consultative relationships with the federal government coincided with both the elaboration of neo-liberalism as a new norm of governance and the emergence of a backlash to feminist understandings of sexualized violence. If neo-liberalism worked to undermine the political legitimacy of feminist claims by reconWguring activists as “special interests,” highly publicized

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attacks on anti-rape activism sought to delegitimize political and feminist understandings of sexualized violence as hysterical, ideological, and exaggerated. Judicial discourses must be set within this context of backlash and simultaneously viewed as a potent site for its elaboration. In this chapter, I trace the articulation of a liberal legalistic, individualized, and privatized discourse of sexual violence within judicial discourse. Key emergent trends in sexual assault case law are examined, including judicial resistance to the consideration of “equality”; the framing of complainants’ concerns through a narrow construction of “privacy”; the discrediting of claims through “hysterization”; and the appearance of a “contractual” concept of consent and “responsibilized” sexual subjects. Critically analyzing these developments, I draw attention to law as a site of struggle over sexual subjectivity and to the role of legal discourse in the emergence of a neo-liberal sexual citizenship. Violence against Women on the Terrain of the Neo-Liberal State The disappearance of sexual violence as a social/policy problem, and its containment within the frame of criminal law, need to be set against the backdrop of the neo-liberal state. The Canadian state’s commitment to social citizenship has been eroding, replaced by economic efWciency and international competitiveness as the main objectives of government activity. Janine Brodie (1997, 235) characterizes this transition in state form as “the great undoing” in which the market is elevated over the state, spaces of political contestation are narrowed, and social marginalization, including gender disadvantage, is intensiWed (Fudge and Cossman 2002). At the same time, however, underlying the neo-liberal state is a new form of citizenship denying the relevance of gender. New norms of governance encourage citizens to conform to market ideals and to see themselves as responsible for enhancing their own well-being (Brodie 1997; Garland 1997). Consequently, those who continue to make citizenship claims on the basis of structural disadvantage are increasingly cast outside the boundaries of legitimate public discourse. In “only a few years,” Brodie insists (2002, 91), gender and the equality agenda have been virtually erased from public discourse. Brodie uses the Wgure of the neo-liberal citizen to account for the decline in political inXuence of the organized women’s movement since the early 1980s. Once entitled to state funding and political access, feminist organizations were increasingly recast as “special interest groups,” antithetical to a public good deWned in terms of restraint, privatization, and personal responsibility (Brodie 2002, 95-96; 1997, 238-39). The disappearance of sexual violence as an object of public policy can be linked to these broader transformations in citizenship norms. Yet, in Brodie’s emphasis on broad governmental themes, the neo-liberal project is portrayed as if seamlessly

The Discursive Disappearance of Sexualized Violence

unfolding, obscuring what Wendy Larner (2000) refers to as the “messy actualities of neo-liberal projects.” The attenuation of feminist inXuence, for example, is not adequately captured in the image of feminist organizations almost instantaneously being transformed into “special interest groups.” In the early 1990s, precisely the time that Brodie and other analysts identify as the period of the delegitimation of feminism, activists achieved policy advances, particularly on the terrain of criminal law reform, and participated in innovative consultative forums with federal government actors. For a brief time, governmental attention to “violence against women” provided an opportunity for the articulation of a broad array of feminist demands (Gotell 1997). In the fallout from the Montreal massacre,1 in parliamentary reports, in new family violence initiatives, and, signiWcantly, in the establishment of the Canadian Panel on Violence against Women, a new ofWcial discourse on “violence against women” began to emerge. Suddenly, violence became recognized as a serious problem confronting Canadian women and “victimization” was installed as perhaps the most central feature of gender relations (ibid.). Out of this period, sexual assault law reforms recognizing sexual violence as gendered, pervasive, and systemic emerged. Sheila McIntyre (2002) has detailed the coalition lobbying that led to the 1992 sexual assault reforms and that was maintained in yearly meetings with federal policy makers between 1994 and 1997. These processes included federal funding of violence consultations in which women’s organizations determined both the agenda and the participants; the inclusion of racialized women, Aboriginal women, women with disabilities, and sextrade workers; and the development of a creative and contextualized approach to criminal regulation. At a time when funding of women’s groups was rapidly disappearing and national organizations such as National Action Committee on the Status of Women were being pushed to the margins of political inXuence, “violence against women” emerged as a window for inserting feminist demands onto the political agenda (Brodie 1995, 65-83). In this period, gendered victimization became one of the last few legitimate gender-speciWc bases for claims to social entitlement, tied intimately to the development of the law and order state (Gotell 1997, 67). A signiWcant dimension of the transformation in relations of governance that has marked the past two decades of Canadian politics is the enhancement of the state’s coercive powers, occurring in tandem with the erosion of social welfare (Martin 2002, 355). Criminalization strategies are often embraced as governments seek to respond to anxieties produced in a context of rapid socio-economic transformation and declining social supports. Governmental attention to “violence against women,” deWned principally as

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an object of criminal law, is clearly related to the development of a leaner, meaner state (Gotell 1997). Critics see feminist criminal law reform strategies as being complicit in the development of a law and order state that disempowers women and criminalizes the marginalized. Yet to construct feminist reformers as somehow complicit in the pernicious effects of criminalization is to ignore the ways in which the 1990s struggles both deployed the opportunities afforded by the opening of a policy Weld around “violence against women” and, at the same time, resisted the individualizing, retributive thrust of governmental agendas. As Lee Lakeman (2004, 127-28), representative of the Canadian Association of Sexual Assault Centres and a central participant in the 1990s reform campaigns, explains, “it has never been the position of CASAC that violence against women should be considered by government ... primarily as a matter of criminal justice.” Yet achieving effective criminal responses to violence remains, by necessity, a critical concern of anti-violence activism. While defending the important objective of justice for women who experience sexual violation, the agenda advanced by feminist and anti-rape activism has extended far beyond criminal law reform and the enhanced protections for complainants. This thrust is especially evident in Department of Justice-sponsored consultations held between 1994 and 1997. During successive meetings, feminist anti-violence activists repeatedly challenged the narrow focus on the criminal justice system, framed sexualized coercion as a systemic problem deeply rooted in gendered and racialized inequalities, and demanded state action on a number of fronts, including social policy, public education, and the provision of a stable funding base for independent, women-controlled, front-line work and activism ( Ninety-Nine Federal Steps 1993). Advocates used these consultations as a site for contesting the broad gendered implications of neo-liberalism, including the hollowing out of the social welfare state, the de-funding of feminist activism, and the intensiWcation of gender, race, and class disadvantage. The transcripts clearly document how cabinet ministers and their ofWcials sought to channel this broad agenda into a much narrower emphasis on criminal law reform (Department of Justice 1995, 26). This complex push and pull provided an opening for criminal law reforms that could embed, however partially, feminist and systemic understandings of sexualized violence. In 1992, after the Supreme Court of Canada struck down restrictions on sexual history evidence as a violation of legal rights (R. v. Seaboyer 1991), the federal government re-enacted “rape shield provisions,” albeit in a weakened form that accorded with the court’s insistence on scope for judicial discretion.2 Largely due to feminist lobbying, this reform initiative also sought to limit the traditional uses of sexual history evidence by reframing the Criminal Code’s construction of consent and “mistaken belief


in consent.” For the Wrst time, a statutory deWnition of consent as voluntary agreement was enacted;3 situations of forced submission that do not constitute consent were enumerated;4 and the defence of mistaken belief was limited through a new requirement that the accused have taken “reasonable steps” to ensure consent.5 In 1997, the government again responded to feminist pressure through enacting legislation addressing the widespread defence tactic of seeking access to complainants’ personal records, creating a legislative regime that strengthened the common law test for access that the Supreme Court of Canada has established in R. v. O’Connor (1995).6 These reforms stand as a textual residue of an era in which the “great undoing” that Brodie describes was developing unevenly and when, for a brief period, the interests of governmental and feminist actors converged around “violence against women” initiatives. Both reforms gestured towards feminist power-sensitive discourses of sexual violence in legislative preambles, recognizing the pervasiveness and gendered nature of sexual assault and the social objective of improving police reporting rates. Systemic understandings that explicitly sought to guide the exercise of judicial discretion also were spliced into Criminal Code evidentiary provisions regulating sexual history evidence and access to conWdential records. These provisions required that such factors as discriminatory myths, the impact of decisions for police reporting rates, and the equality and privacy rights of complainants be weighed against the legal rights of the accused in determining access to conWdential records and the relevance of sexual history evidence.7 By distinguishing consent from forced submission, statutory language gestured towards a contextual analysis of the power relations within which sexual interactions unfold. The positive deWnition of consent as voluntary agreement, as well as the limitations on the defence of mistaken belief, challenged a discourse of normative heterosexuality founded on feminine acquiescence to seduction and moving towards an explicit consent standard. The intense resistance to these amendments attests to the discursive successes of feminist law reformers. Popularly referred to as the “no means no” bill, draft 1992 reforms met with dramatic opposition from antifeminist groups (Commons 1992, 2:30), civil libertarians (Martin 1992, 9), and defence lawyer associations (Canadian Council of Criminal Defence Lawyers 1998, 11 and 14-15).8 This opposition is potent testimony to the manner in which feminist law reform campaigns were able to imprint sexual assault provisions with resistant discourses that contextualize sexual violence within societal power relations, challenge the disqualiWcation of claims of sexual assault, and indict male aggression as the standard of normative heterosexuality. As a result of 1990s law reform campaigns, feminist discourses came to reside alongside the individualized frame and punitive ethos of criminal law.

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Neo-Liberalism and the Context of Judicial Discourses Since the boundaries between sexual assault and normative heterosexuality are deWned under the shadow of law, the discursive power exerted through judicial decisions requires careful interrogation. The legal interpretation of 1990s sexual assault law reforms now unfolds in a context distinct from that of the early 1990s, where the recognition of sexual violence as a dramatic social problem has all but disappeared. By 1998, federal consultative mechanisms that had provided a window of feminist inXuence within the federal policy process were dismantled (McIntyre 2002, 80; Lakeman 2004, 24). Feminist anti-violence activists were recast as “special interest groups” and excluded from policy networks, as justice-sponsored consultations were discontinued (McIntyre 2000). The policy Weld signiWed by “violence against women” was evacuated and replaced with degendered and individualized policy frameworks. One crucial institutional mechanism by which this has occurred is the elaboration of victims’ services bureaucracies and through the ascendant policy discourse of “victims’ issues.” At the federal level, the rise of a victims’ rights model as the predominant policy framework was signiWed by the establishment of the Policy Centre for Victims Issues, an ofWce within the Department of Justice charged with “raising awareness of the needs of victims of crime” (Lakeman 2004, 127). Now preoccupied with the rights and treatment of decontextualized and individualized “victims,” new policy discourses avoided systemic constructions linking “crime” to context, signalling the disappearance of gendered policy discourses of sexual violence. This transformation of sexual violence from an object of political contestation into an individualized and depoliticized legal question can be seen as a form of “re-privatization.” The de-funding of feminist front-line and activist work is a Wnal crucial aspect of this reconWgured context. With the decline of the federal funding for feminist organizations that had been provided through the Secretary of State Women’s Program, funding for anti-rape activism and front-line work has been decentralized to the provinces (Lakeman 2004, 111). Provincial funding arrangements, however, are most often contingent on the provision of services, such as counselling and court accompaniment (Policy Centre for Victims Issues 2003). Feminist front-line organizations have therefore had to redeWne themselves as social service delivery agencies, affecting their capacity to intervene in national debate and to combat the pervasive re-privatization and individualization of sexualized violence (Lakeman 2004, 112). The clever disappearing act embedded within these interrelated moves does not signal a victory over sexual violence, merely its disappearance as an object of policy and public discourse. Without external political discourses recognizing sexual violence as a systemic problem, the dominant tendency of criminal law towards radical decontextualization and individuation


holds sway. Normative heterosexuality and sexual citizenship are currently being reconstructed to accord with the responsibilized neo-liberal citizen and judicial discourses on sexual assault constitute an important site for this reconstruction. Conceptualizing Legal Resistance to Feminist Inspired Law Reforms Some feminist criminologists express deep skepticism about the utility of criminal law reform as strategy, arguing that even progressive reforms merely intensify social control since feminists cannot determine the implementation of new laws (for example, Snider 1990). As Laureen Snider (1990, 161) elaborates, because criminal law is guided by a singular logic – the reproduction of systems of domination – reforms will “seldom get down to the informal level, to the day to day operation of the criminal justice system, the level at which real decision-making occurs.” While in many ways prescient about the fate of 1990s amendments, Snider’s assumption that criminal law inevitably reinforces status quo power relations suggests that the question of using criminal law to achieve progressive ends is answered before it is even asked. Although the 1990s reforms were not radically transformative, what feminists achieved in rewriting sexual assault laws was complex, inserting gendered and contextualized understandings of sexual assault into a criminal legal framework deWned by individual responsibility and punishment. Thus, we should not simply accept Snider’s pessimism nor relinquish the project of discerning the precise impacts of this change in the Weld she identiWes – the “day-to-day” operation of the courts. Law is not merely a reXection of the social order but is instead a disuniWed Weld, marked by contradictions and conditions that both enable and constrain (Smart 1995, 144). In mapping the legal and discursive effects of sexual assault law reforms, my focus is on the dispersed Weld of law as represented by lower court and appellate-level judicial decision making in three areas linked to the main reforms introduced in 1992 and 1997: • Appendix 5.1: the production and disclosure of complainants’ conWdential records (36 out of 106 decisions) • Appendix 5.2: the admissibility of sexual history evidence (22 out of 107 decisions) • Appendix 5.3: the elaboration of statutory deWnitions of consent and mistaken belief in consent (48 out of 106 decisions) I explore 106 judicial decisions9 in these critical areas following the decisions by the Supreme Court of Canada in three important sexual assault cases in 1999-2000. In R. v. Darrach (2000), the court upheld the constitutionality

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of section 276 of the Criminal Code governing the admissibility of sexual history evidence, against a legal rights challenge (Benedet 2001). Similarly, in R. v. Mills (1999), the court determined that section 278, regulating access to conWdential records, was consistent with a concept of legal rights in which the circulation of discriminatory myths is recognized as an impediment to fair trial (Coughlan 2000; Gotell 2002)). In Ewanchuk (1999), the court elaborated on the legal meaning of consent, ruling against the defence of implied consent that had been supported at the lower court ( Lessard 1999; Mandhane 2001). Some suggest that by afWrming key components of the 1990s reforms, the Supreme Court of Canada ushered in a new era of legal interpretation based upon the equitable treatment of complainants and the rejection of rape mythology.10 This interpretation ignores the ambiguities that reside within the Criminal Code provisions and within the decisions themselves and that emerge within the level of day-to-day judicial interpretation. To map the impact of reforms, attention must be focused on the trial level where evidence, legislation, and our gendered subjectivities are forged into legal signiWcance (Matoesian 1995, 675). It is not simply the outcome of decisions (relevance/admissibility of evidence, guilt/innocence of the accused) that is of interest. Instead, the sexual assault trial must be viewed as a disciplinary matrix with constitutive effects. As Michel Foucault emphasized, the repressive and coercive functions of law must be downplayed in favour of an analysis of law’s constitutive functions as discipline, surveillance, and normalization (Munro 2001). Through the sexual assault trial, we can observe the endless repetition of heteronormativity’s key scripts: the assertion and reassertion of an active, uncontrollable male sexuality and a passive female sexuality; the incredibility of sexual coercion; and the construction of women (and children) as more emotional, less rational, and less reliable than men (Smart 1995, 84). Judicial decisions on sexual assault represent a condensation of these processes. As textual residues of the sexual assault trial, judicial discourses reXect the transformation of women’s (and children’s) claims of sexual violation into “evidence” and reveal the terms upon which the line between credible/incredible is established through the adversarial process of the trial. My analysis of recent judicial discourses highlights the discursive effects of sexual assault law – the criteria by which authoritative pronouncements are separated from “hysteria,” and, in this process, gendered subjectivities, adequate rationality, and deWnitions of violence/normal heterosexuality are created, reinforced, and sometimes altered (Hengehold 1994, 94; Smart 1989). In effect, judicial decisions on sexual assault operate as a gendering strategy, creating gendered subjectivities and privileged and devalued subject positions, rather than merely acting on pre-existing, a priori subjects (Bonneycastle 2000). Moreover, just as gendered identities are constituted


through decisions on sexual assault, so too does law racialize. The archetypal rape in legal discourse is the rape of a white woman. Hence, the rape script that is produced through the cumulative weight of judicial decisions is inescapably raced, whether it involves intra-racial or interracial sexual assault. As critical race scholars have argued (for example, Sujata Moorti (2002) and Sherene Razack (2002)), dominant understandings of sexual assault have been forged against the backdrop of legacies of racism and colonialism. Linked to these legacies, black and Aboriginal bodies have been constructed as menacingly sexualized – with black/Aboriginal men cast as sexually rapacious and black/Aboriginal women presented as promiscuous and unrapeable. Yet within the judicial decisions analyzed in this chapter, race is obscured beneath a deWant racelessness. In only four out of the 106 trial and appellate decisions that form the textual data for my analysis11 was the race of the victim and/or the defendant noted. The de-raced character of these decisions reXects, in part, the universalizing pretences of justice, whereby racial power relations are excised from judicial pronouncements, thus reinforcing law’s claim to objectivity. In this way, the space of whiteness is normalized and equated with justice (Razack 2002). The gendered character of sexual assault is not hidden in the same way that race is erased; the stories told in these decisions are of gender-speciWc experiences of sexual violence. By this I mean that the gender of perpetrators (always male in the decisions analyzed in this chapter) and of the complainants is always identiWed and never ignored in these decisions. Yet, as my analysis reveals, analogous to the racelessness of judicial discourses, the context of gendered power relations that frames and gives meaning to sexual violence is also hidden beneath the individualized gaze of criminal law. The judicial construction of sexual assault constitutes an individualized and privatized discourse of sexual violence, which is resistant to the feminist gestures of 1990s reforms. Recent trends in case law are not, however, uniformly disappointing. Overall, my analysis demonstrates the theoretical insight that law is a site of discursive struggle over the boundaries of normative heterosexuality. Scrutinizing judicial discourses reveals both the shifting terms upon which the “good victim” is deWned and a changing set of justiWcations for disqualifying claims of sexual violence. Woven throughout is a new normative vision of sexuality built upon the risk-avoiding, “responsibilized” sexual citizen. Sexual History Evidence and Personal Records Cross-examination on sexual history is a historically long-standing defence strategy, deployed to discredit the complainant through reducing her to a sexualized body – the unchaste seductress whose “no” must mean “yes” and whose story is rendered unreliable by her emphatic sexuality (Larcombe

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2002). Through minute attention to past sexual activity, the complainant is rescripted as a precipitating agent in a sexualized scenario, with the intended effect of disqualifying her testimony (Smart 1995, 83-84). By contrast, seeking access to complainants’ records is a relatively recent tactic, Wrst emerging in Canada in the late 1980s.12 Probing diverse private records for evidence of inconsistency in order to create the appearance of faulty memories and motives to lie has provided the key mechanism of attacking complainants since the 1990s. This strategy has functioned as a kind of end run around legislative barriers to sexual history evidence, which intensiWed in Canada in the 1990s (Busby 2000). My analysis of recent sexual assault decisions suggests that even after the legislative restrictions on conWdential records and sexual history were upheld by the Supreme Court of Canada in Mills (1999) and Darrach (2000), complainants remain vulnerable to these defence strategies. In the decisions analyzed in this chapter, 53 percent of defence applications for sexual history evidence were successful, while in 39 percent of records applications, the production of at least some records was ordered. These rates of admissibility and production suggest that the statutory regimes regulating sexual history evidence (section 276) and access to complainants’ records (section 278) have both been rendered highly permeable through judicial interpretation. This permeability is, in part, rooted in Darrach (1999) and Mills (2000) – decisions that simultaneously conWrmed the constitutionality of statutory regimes set in place by 1990s law reforms and weakened their meaning (Coughlan 2000; Gotell 2002). In upholding sections 276 and 278, the court did move away from its previous, myopic focus on the accusedstate dyad as the only relevant constitutional relationship in sexual assault law. In both Mills (para. 37) and Darrach (paras. 74 and 90), the court recognized that legal rights of the accused must not be allowed to distort the “truth-seeking” function of the trial process by employing discriminatory myths about rape victims. In effect, the decisions advanced a position that a fair trial is one that does justice to all parties, including the complainant. Yet this gesture to a broader conception of fair trial rights was tempered by a narrow framing of complainants’ concerns. The disclosure of conWdential information in the context of sexual assault trials, as the Mills ruling emphasized, inevitably infringes complainants’ privacy rights, which are deWned negatively as the “interest in being left alone by government” and the right to “control the dissemination of personal information” (paras. 79 and 80). In Darrach too, the court offered only passing references to equality and located complainants’ interests within an unelaborated conception of privacy rights (para. 28). The Supreme Court of Canada’s narrow framing of sections 276 and 278 sets the tone for an excision of societal and systemic concerns from the


balancing exercises that these provisions provide. The rulings stress repeatedly that these statutory provisions are constitutional because they emphasize and retain judicial discretion (Mills 2000, para. 120; Darrach 1999, para. 37). A central feature of both provisions, however, was their enumeration of a series of considerations that were to guide judicial discretion when ruling on the admissibility of sexual history and defence access to records. A mark of feminist inXuence was the requirement that judges “take into account” factors that extend beyond the narrow and individualized contest between the privacy of complainants and the fair trial rights of the accused, including equality rights and the dignity of complainants; the sway of discriminatory myths; and the impact on reporting rates. Yet these contextual considerations were rendered marginal in these decisions. In Mills, the considerations enumerated in section 278.2(3) were transformed into a “check-list” of various factors that “may come into play during a judge’s deliberation” (para. 134), but which need not be analyzed in deciding on the production and disclosure of personal records (Coughlan 2000, 306). Darrach contained absolutely no discussion of the considerations listed in section 276(3), focusing instead on the “right of the accused to make full answer and defence” (para. 43). Overall, both decisions work to privilege defendants’ rights, undermining the court’s recognition of a broad conception of fundamental justice. In a move that eroded the very thrust of sections 278 and 276, the majority in Mills insisted that where there is any doubt about the likely relevance of the records “judges should err on the side of production” (para. 134). Cited with approval in Darrach (para. 42), this judicial privileging of fair trial rights within the balancing exercises established by 1990s sexual assault reforms effectively redeWnes their very meaning. In her analysis of judicial resistance to the 1990s reforms, McIntyre (2002, 79) echoes Snider, concluding that criminal law may be “incorrigible under present circumstances.” I may appear to be embracing an equally pessimistic interpretation. These Supreme Court of Canada decisions, however, embed a contradictory set of logics that simultaneously constrain and enable the recognition of complainant rights. The complex dichotomy between speciWc and general assertions of the relevance of records and the admissibility of sexual history evidence is one such contradictory space within the rulings. Mills’ insistence on the necessity of a case-speciWc informational foundation to ground a Wnding of the likely relevance of personal records has had a positive impact in the form of a reduced likelihood of a production of records in the post-1999 case law (para. 118).13 In refusing to order production, judges have relied heavily on the Mills requirement of “case-speciWc evidence,” which would raise an assertion of likely relevance from the level of the general to the speciWc. For example, in R. v. Batte (2000, para. 72), a complex historical abuse

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case widely cited as an authority on the application of the case-speciWc evidence criteria, the court held that counselling records potentially relevant to the complainant’s credibility would pass the likely relevance threshold “only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence, or have some potential impeachment value.” The Batte requirement that something in the record must constitute new and otherwise unavailable information establishes a high threshold test for likely relevance,14 which is used in several post-Mills cases to deny production.15 Such decisions are indeed important in shrouding records from speculative production requests or “Wshing expeditions.” An analogous general/speciWc dichotomy in relation to sexual history has had far more complex implications for lower court interpretations. Section 276(1)(a) speciWes that “no evidence may be adduced unless it is of speciWc instances of sexual activity.” Furthermore, sexual history evidence is to be excluded when it is put forward to infer that a complainant is “more likely to have consented” and “less worthy of belief” – the socalled “twin myths” (section 276(1)). As emphasized in Darrach (2000, para. 32), however, section 276 is not a “blanket exclusion” and prohibits the use of sexual history evidence only where aimed at supporting these twin myths. According to the court’s interpretation, this provision “excludes all discriminatory generalizations about a complainant’s disposition to consent or about her credibility based on the sexual nature of her past sexual activity” (para. 34 [emphasis in original]). The court sets out a pair of linked and unstable binaries – general/speciWc, sexual/non-sexual – which, in turn, create tensions in lower court interpretation. By limiting section 276 to the eradication of “discriminatory generalizations” based upon “the twin myths,” the court set the stage for an extremely narrow reading – that sexual history evidence may be used to support speciWc, but not general, inferences on issues of consent and credibility.16 This interpretation has found some support in the lower courts (R. v. Ehrstein 2002; R. v. Temertzoglou 2002). In Temertzoglou, for example, a general/speciWc distinction was used to ground the admission of evidence used to show the development of a “more than platonic” relationship between a nanny and male defendant, “notwithstanding an age difference,” in order to make a consent defence plausible (para. 28). Of course, such “speciWc” inferences are inescapably tied to the “generalized” assumption that consent to intercourse is more likely when there has been a relationship of previous physical contact. To interpret section 276 in terms of impermissible “general” rationales and permissible “speciWc” rationales potentially eviscerates its protections. The general/speciWc dichotomy is related to the assertion of a distinction between sexual/non-sexual that is a pivotal axis within judicial assessments


of the scope of section 276. In Darrach (2000, paras. 35-36), the court restated its arguments in R. v. Crosby (1995) that sexual history evidence can be introduced for its “non-sexual features,” including to show inconsistent statements or a pattern of fabrication or to rebut Crown evidence. These exceptions rest on an arbitrary distinction between what is and is not sexual that invites defence to introduce sexual history evidence on the basis of its non-sexual features. These features, however, are always framed by symbolically gendered sexual evidence. The admission of sexual history evidence to show inconsistencies or to rebut prosecution evidence has, of course, long been a feature of sexual history jurisprudence (Chapman 1999). What is striking about the recent case law is just how elastic such exceptions have become, demonstrating how an arbitrarily drawn sexual/non-sexual distinction can subvert the protections of section 276. In several post-Darrach cases, sexual history evidence was sought on the basis of its “non sexual” features to contradict physical evidence of child sexual assault (R. v. D.A.K. 2001); refute testimony that the complainant was a virgin at the time of the alleged assault (R. v. Toms 2001; R. v. Lalo 2002); demonstrate confusion between perpetrators (R. v. Porter 2001; R. v. K.K. 2003); account for sexual knowledge of a child complainant (R. v. D.S. 2003); and show a pattern of fabrication (R. v. R.A. 2002). In some of these decisions, evidence that is inescapably sexual was determined admissible on the basis that it is not sexual (D.A.K. 2001; Toms 2001; and Lalo 2002). In R.A., for example, evidence involving a complainant’s claims to have been assaulted by six men other than the accused was ruled admissible on appeal to show a pattern of fabrication. The court explained: “[T]he fact that the prior activity is sexual in nature is not relevant – it is the tale surrounding the alleged activity that is relevant to credibility” (para. 26). Through this astonishing justiWcation, the Appellate Court allowed evidence constructing those with histories of victimization as having a propensity to make false allegations.17 The strategy of seeking sexual history on the basis of its non-sexual features enables judges to determine admissibility without conducting the balancing exercise set out in section 276(3). When evidence is sought to show inconsistency or to rebut Crown evidence, for example, it may be determined admissible without ever engaging in a consideration of how the myth-ridden rationales grounding such requests may “arouse ... prejudice,” “introduce ... discriminatory belief,” affect “reporting rates,” and compromise a complainant’s right to “privacy,” “personal security,” and the “full protection and beneWt of the law” (Criminal Code 1985, section 276(3)). Even in cases where judges take into account the factors laid out in section 276(3), the resulting analysis is generally cursory. The tone of analysis in most decisions is narrow and conclusory (see also McIntyre 2000).

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Judges usually simply review the facts of the case, summarize defence submissions, quote (most often without any interpretation) the provisions of sections 278 or 276, and then render a decision. Sections 278 and 276 ask judges to weigh legal rights against the privacy and equality rights of complainants and to consider such factors as “discriminatory myths” and society’s interest in police reporting and in ensuring counselling for complainants, but concerns other than privacy and fair trial rights are rarely acknowledged or analyzed. Given the thrust of these provisions, marked with the imprint of feminist discourses, it is remarkable that only a handful of evidentiary decisions pursued any kind of equality analysis. Decisions that take into consideration the sway of discriminatory myths are unusual. In R. v. Tatchell (2001), for example, residential school records were sought for a blind, developmentally delayed complainant. The court cautioned that the application may be based on “the discriminatory belief that all persons with an intellectual disability ... are incapable of telling the truth” and suggested that the release of such records would discourage reporting by those with “intellectual disabilities” (paras. 21 and 22). Even here, a gendered equality analysis is glaringly absent. Overall, the decisions examined display a persistent judicial narrowing of the complex concerns implicated within sexual history evidence and access to personal records. In contrast to statutory language, the contest between the privacy and fair trial rights of the accused becomes the only focus of judicial analyses. The judicial reframing of sections 276 and 278 represents a reassertion of individualized analysis as the only legitimate framework of criminal law. This is evident not only in narrow judicial analysis but also in overt resistance. According to the court in R v. R.B. (2002, para. 33), for example, “[c]ounseling services should continue to encourage people who are suffering from abuse to continue to be counseled. In the large scale of the criminal justice system one cannot remove the right to full answer and defence because some victims might not avail [themselves] of counseling. This is the only factor which a judge should consider in a review under s. 278.1” (see also Temertzoglou 2002, para. 31). Set against decisions that, like R.B. (2002), draw upon Mills (1999) and Darrach (2000) to privilege the accused’s rights,18 privacy rights often provide only fragile protection against defence strategies of seeking access to personal records or sexual history. Most decisions frame the protection of records and the restriction of sexual history as exclusively a matter of “privacy.” Decisions on the admissibility of sexual history evidence, for example, rely heavily on concepts of “humiliation” and “embarrassment” and often assess the potential harm using a scale of sexual activity that ranks evidence of penetration as the most serious threat to privacy. In R. v. R.H.B. (2002, para. 10), for example, cross-examination of a thirteen-year-old girl on whether she had rubbed against an adult male defendant wearing only


a towel was deWned as “minimal sexual contact” and therefore characterized as being “of minor concern in relation to the privacy rights of the complainant.” Similarly, in Temertzoglou (2002, para. 33), the judge accepted the defence claim that “because the prior sexual activity is much less intrusive than the activity that forms the subject matter of the charge ... the potential prejudice to Ms. M.C.’s personal dignity is lessened.” This line of interpretation removes the harms of sexual history evidence from the context of women’s/girls’ social and sexual subordination and ignores how sexual history evidence has the effect of reinforcing discriminatory assumptions and disqualifying claims of violation. Residing underneath the legal rationale in R.H.B., for example, is the promiscuous adolescent girl as temptress, and informing Temertzoglou is the young woman whose claim is rendered suspect by the existence of previous “non-platonic” contact with the accused. The judicial focus on privacy encourages a legal analysis that is both degendered and decontextualized. Privacy is constructed as an abstract good. Underpinning the emphasis on privacy is a highly atomistic understanding of complainants’ concerns, deWned primarily in terms of the right to own one’s stories and to be protected from embarrassment. The complainant is seen as an isolated individual, not caught up in a web of power relationships that inXuence her ability to construct authoritative versions of events. Janine Benedet (2002, 107) argues that the use of sexual history evidence is wrong not because it is invasive of privacy but because it undermines sexual equality. An equality analysis would demand attention to sexual violence as a systemic practice and to how sexual history evidence and conWdential records are deployed to reinforce gendered constructions of sexual assault complainants as vindictive, hysterical, and inherently suspect. Yet to embrace feminist equality analysis would deeply unsettle the individuated norms of criminal legal discourse. Raising equality arguments in sexual assault trials sets one apart as a “hysterical crusader, rather than a responsible and thorough advocate” (McInnes and Boyle 1995, 344). A deep hostility towards equality analysis in sexual assault trials emerges in the Wndings of a justice-sponsored study based upon key informant interviews with judges, defence lawyers, prosecutors, and complainant advocates ( Mohr 2002). Respondents reported that they had never heard reference to an equality argument in a trial. Some lawyers asked “what equality rights had to do with the prosecution of sexual assault,” and even independent counsel representing complainants in records application hearings reported that they had avoided making equality arguments for fear that it would simply annoy judges (4 and 20). Separated from the kind of contextual analysis contemplated by sections 276 and 278, the lonely shield of privacy provides only fragile protection against invasive credibility probing by defence. When complainants can

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be constructed as failing to meet the requisites of the “good victim,” their privacy rights are often dismissed and discounted. Weaving through these decisions is the “ideal victim,” a symbolic construct, who serves as the measure of any real complainant’s credibility (Larcombe 2002). Inferences based upon sexual history and upon the presumed content of personal records are used to create a distinction between the complainant and the “ideal victim.” Once deWned primarily by her sexual morality, the “ideal victim” now is also increasingly marked by her/his consistency, rationality, and self-discipline – characteristics that bear striking resemblance to the privileged markers of “neo-liberal subjectivity” (Larcombe 2002, 144). To claim privacy rights, one must be able to assume the standpoint of the self-disciplined and responsibilized neo-liberal subject; articulate a consistent account that appears capable of meeting the test of legal “truth;” and squeeze the complex ambiguities of coercive heterosex into the binary, individuated logic of the consent/coercion dichotomy. Complainants who can be represented as failing to meet standards of consistency, rationality, and psychological coherence risk losing the protections afforded by privacy rights. The discursive “ideal victim” indelibly marks the case law on access to personal records. Defence rationales and judicial justiWcations for production and disclosure often rely on the construction of “actual complainants” as hysterical, deluded, and manipulated. In many cases with the widest production orders, the rationale grounding the order was that the complainant/s suffered from “false memory syndrome” (FMS).19 Forged initially by parents claiming they had been “falsely” accused of abuse,20 FMS is a “syndromized” category without any status as a recognized psychological disorder that has increasingly gained legal legitimation (Sheehy 2002). In many records cases where it is invoked, even the “typical” characteristics associated with FMS (the recovery of long-forgotten memories and “memory-shaping” therapeutic techniques) are notably absent.21 R.B. (2002, para. 29; see also paras. 27, 28, 30, and 34), for example, concerned an adult woman’s allegations of sexual assault against her ex-spouse. Defence used statements made at the preliminary inquiry (where the complainant admitted to having Xashbacks of childhood abuse, taking anti-depressants, and undergoing counselling) as the basis for a theory of FMS. The trial judge ordered production of all therapeutic records because “[t]he complainant’s recall of events is clearly an issue at trial and a review of the procedures followed concerning her memory and the techniques probed, may well be relevant and probative.” The order was made without evidence that the complainant’s allegation was based on recovered memories and despite her emphatic denial of the defence’s theory in the preliminary record: “Well when you got the fellow you’ve been going out with and the father of your two kids for Wfteen year [sic] on you, assaulting you and you’re


having a Xashback of your father putting a gun to your mother’s head, yes, I think I can separate the difference” (para. 21). A parallel set of rationales weaves through the case law on sexual history. These decisions reveal a laudable reluctance to make generalized links between sexual experience and veracity. It is, however, frequently evidence of non-consensual sexual history that is at issue. In several cases, defence has attempted to use allegations of past assaults to show a pattern of fabrication (R.A. 2002 and R. v. S.A. 2002); inconsistent statements ( Lalo 2002); a complainant’s proneness to exaggeration (D.S. 2003); frail memory (Porter 2001); and confusion about perpetrators (K.K. 2002 and R. v. N.P. 2001). As Elizabeth Sheehy (2002, 172) has also observed, prior victimization is increasingly deployed to undermine a complainant’s testimony by suggesting that “she was damaged by prior trauma such that she is an unreliable witness who may have imagined additional assaults.” Much like FMS claims in records cases, defence assertions that allegations are the product of fantasy or maliciousness work to hystericize complainants, distancing them from the idealized rational victim. Statistics Canada’s Violence against Women Survey found a dramatically high incidence of sexual assault (39 percent) as well as disturbingly high rates of repeat experiences ( Johnson and Sacco 1995, 296). Against strong evidence of sexual violence as gendered, pervasive, and repetitive, judicial discourses reinforce the individuated frame of criminal law. Where complainants’ narratives challenge a liberal legalistic and rigidly individualized construction of sexual assault, they may be most vulnerable to a disclosure of records, cross-examination on sexual history, and the ultimate disqualiWcation of their claims. This is apparent in cases where the pervasiveness of sexualized coercion within the complainant’s own life renders her crazy and unstable – the very antithesis of the rational legal subject. Judicial hostility to social and political analyses of sexualized coercion is also revealed in cases where complainants acknowledge a reinterpretation of their past in light of new knowledge about the pervasiveness of sexual violence and its devastating consequences. In W.G. (2002, para. 8), for example, an adult male complainant laid a charge of historical sexual abuse after reading the report of an inquiry into sexual abuse by clergy, which, in his words, “made him aware of the severity of child sexual abuse.” This revelation provided the crucial element in a theory of FMS, leading to the disclosure of several years of counselling records. Trial and appellate level decisions on sexual history and records production reveal clear evidence of judicial resistance to the innovative and feminist-inspired features of sections 276 and 278. The extension of criminal law beyond the traditional concern with the legal rights of defendants is largely thwarted through these decisions, tempered only by the recognition of complainants’ interests in an individualized paradigm of

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privacy. Broader concerns with the reproduction of conservative sexual ideologies in sexual assault law or with women’s unwillingness to report to police are erased. Underpinning these decisions is the discursively reconstructed “ideal victim,” who is no longer deWned simply by her sexual propriety and morality but also by her qualities of reason and selfdiscipline – someone with a story that coincides with the individuated narrative of criminal law. Shifting Consent Norms: The Neo-Liberal Sexual Citizen As Carol Smart (1995, 154-56) has insisted, law develops unevenly, operating simultaneously as a site of change and an obstacle to change. Unlike the sexual history and records cases where the undoing of 1990s sexual assault reforms is evident, post-Ewanchuk cases elaborating on the meaning of consent and mistaken belief in consent appear, on the surface, to be cause for celebration. A concept of sexual autonomy is given increased legal weight, and, incrementally, judicial decisions appear to be disrupting a normative heterosexuality built upon men’s forceful seduction and women’s acquiescence (Sheehy 2000). Challenging the view of criminal law as inevitably implicated in the reproduction of conservative sexual standards (Snider 1990; McIntyre 2002), these decisions are marked by shifts in legal interpretation and movements towards a positive consent standard and the apparent disruption of sexualized, gendered norms. While recognizing that legal discourse is not monolithic, we must at the same time look underneath the surface of these apparently positive shifts. The discursive foundation of decisions on consent and mistaken belief is an individuated construction of sexual assault. Sexual violence is atomized. Its manifestations are neither collected nor considered in a context where sexual violence is a mechanism for sustaining gendered power relations and constituting gendered identities. Sexual autonomy is increasingly recognized but in a form that is highly consistent with the depoliticized norms of criminal law. Recent sexual assault case law is reconstructing the norms of sexual behaviour under the shadow of neo-liberalism, forging the contours of a neo-liberal sexual citizenship based upon contractual norms, rationality, risk-avoidance, and self-management. Ewanchuk (1999) has become the leading authority for trial and appellate judges as they attempt to discern the legal meanings of consent and mistaken belief. Hester Lessard (1999, 66) describes the majority’s reasoning as “economical.” In contrast to Justice Claire L’Heureux-Dubé’s concurring opinion, where sexual assault was seen within the context of the systemic problem of violence against women and the role of judicial decisions in sustaining rape mythology was explicitly problematized, Justice John Major’s reasoning was indeed narrow and doctrinal. Yet it is “economical” in another sense as well. Much like the Darrach (2000) and


Mills (1999) rulings, the Ewanchuk majority read sexual assault law through a decontextualized liberal lens. Whereas Mills and Darrach emphasized “privacy” as the privileged rationale of protections for complainants, Major J. located the purposes of sexual assault law in the protection of individual autonomy and “control over who touches one’s body” (Ewanchuk 1999, para. 28). As in the other decisions, the equality-based rationales for 1990s law reforms disappear. While failing to acknowledge the power relations surrounding heterosexual negotiations, Ewanchuk nonetheless posed explicit consent as the criterion demarcating sexual coercion from “normal sex.” Several features of Major J.’s judgment were crucial in clarifying the actus reus and mens rea of the crime of sexual assault to accord with a liberal concept of sexual autonomy. First, the majority strongly rejected the “defence of implied consent,” deWning the actus reus as non-consensual sexual touching where consent is deWned from the subjective position of the complainant (paras. 30-31 and 34-35). As Major J. insisted, “the trier of fact may only come to one of two conclusions: the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established” (para. 31). Second, the court embraced a speciWc consent standard, arguing that “[t]he accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that ... consent now exists, nor can he engage in further sexual touching to ‘test the waters.’ Continuing sexual contact after someone has said ‘No’ is, at a minimum, reckless conduct which is not excusable” (para. 52). Third, the court deWned consent as positive consent in relation to the defence of mistaken belief. While insisting that intent is a crucial element of the crime of sexual assault, deWned from the perspective of the accused, Major J. argued that “the mens rea of sexual assault is not only satisWed when it is shown that the accused knew that the complainant was essentially saying ‘no,’ but is also satisWed when it is shown that the accused knew that the complainant was essentially not saying ‘yes’” (para. 45). While embracing an explicit and positive consent standard, Major J. downplayed the importance of the “reasonable steps” requirement in his analysis of mistaken belief, arguing that an “air of reality” test precedes any analysis of “reasonable steps,” and thus ignoring how the 1992 law reform had modiWed the common law test for mistaken belief (paras. 98101, per L’Heureux-Dubé J.). Insertion of a “reasonable steps” requirement, as well as the exclusion of the defence of mistaken belief when it arises from “recklessness or willful blindness,” had constituted important victories for feminist law reformers. In Pappajohn v. The Queen (1980), the Supreme Court of Canada had deWned “mistaken belief” in purely subjective terms,

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contending that the defence must have an “air of reality” but need not be reasonable. Section 273(2), by contrast, introduced a “quasi-objective standard,” such that the belief in consent need not be reasonable, but the accused must have taken reasonable steps in the circumstances to ascertain consent. Against the statutory framework, Major J. adhered to the idea that there can be an “air of reality” for mistaken belief in the absence of an accused taking steps to ensure consent (Lessard 1999, 71). Nevertheless, the rules articulated in Ewanchuk regarding consent limit the ability to prove consent in situations where the complainant indicated her lack of consent through words or conduct (Mandhane 2001, para. 37). In turn, the court’s acceptance of a positive consent standard has produced a fairly remarkable shift in judicial interpretation. Recent cases reveal a marked expansion of the range of situations that are seen to constitute legitimate or real “sexual assault.” The sexual assaults that have tended to be recognized within law – “real rapes,” to use Susan Estrich’s (1992, 7) concept – represent a small, unrepresentative minority (Larcombe 2002, 132). A case is most likely to result in conviction if it is a violent “stranger rape” and if there is evidence of resistance and physical injury. Of the forty-eight cases examined for this research, however, few approximate the narrow characteristics of “real rapes.” Only four cases involved allegations of physical violence or of forcible conWnement, and there were no clear cases of “stranger rape,” although in ten cases the complainants had just met the defendants and were virtual strangers. In most cases, then, the complainant knew the accused/s, with existing relationships that included husband, boyfriend, friend/s, neighbour, co-worker/s, relative/s, prospective employer/s, police ofWcer, and work placement supervisor.22 In these acquaintance cases, especially where no family or clear authority relationship exists between the accused and the complainant, the context in which the assaults took place (parties, hotels, homes, or apartments) could be quite easily sexualized by the defence to infer either consent or mistaken belief. Yet, 72 percent of these claims resulted in convictions.23 Judges now also appear more likely to convict in situations in which a complainant is rendered virtually silent as a witness to her own assault. Sheehy (2000), examining the period before and immediately following Ewanchuk, found that in cases where complainants were sexually assaulted when drunk, drugged, and/or passed out, most men charged were able to successfully argue reasonable steps and avoid a conviction. Of Wfteen post-Ewanchuk cases examined in this research that conform to this fact scenario, however, judges convicted in twelve, Wnding that to proceed with sex in such circumstances constitutes recklessness and willful blindness. R. v. J.A. (2003, para. 128), for example, is a case in which a teenage boy was convicted for assaulting an intoxicated adolescent girl attending a party at his house. The judge’s conclusion is illustrative of decisions in similar cases:


[T]he accused at the very least was reckless or wilfully blind ... he wasn’t really sure whether the complainant knew what she was doing ... I also Wnd that the only conclusion, that has any air of reality to it that was available to the accused at the point in time when he entered the bed with the complainant, was that she was indeed suffering from the effects of alcohol to the extent of intoxication ... [he knew] that she was still intoxicated by alcohol at that time ... [he] did not take reasonable steps before engaging in either of the two individual acts of sexual intercourse.

Post-Ewanchuk decisions strongly indicate a meaningful shift in the law of consent and in the standards for mistaken belief. In their analysis of pre-1995 cases, John McInnes and Christine Boyle (1995) found that judges most often came to the conclusion that there was a reasonable doubt as to consent, thus rendering statutory limitations on mistaken belief irrelevant. Before Ewanchuk, the concept of “implied consent” allowed judges to dismiss charges for lack of actus reus, thus enabling them to avoid the necessity of a reasonable steps analysis (Lessard 1999, 70). Yet this judicial tactic was effectively closed off by the Ewanchuk decision. In the postEwanchuk case law, there is evidence of an important doctrinal shift away from consent analysis and towards the analysis of mistaken belief. Judicial attention is thus moving away from the behaviour of complainants and towards heightened judicial interrogation of the defendant’s actions in securing agreement. Recent sexual assault decisions reXect an embrace of the Ewanchuk rules and the consolidation of a speciWc and positive consent standard. Many have articulated a very stringent deWnition of consent. There are repeated references to the premise that consent must be “freely given,” and some decisions develop the far more rigorous standard of “informed” consent: “It is not sufWcient to simply determine whether an individual said yes when asked if they [sic] would submit to or engage in a particular activity. It must be determined whether that individual made such a decision of their [sic] own free will, fully aware of or apprised of the proposed activity and its consequences” (cited in R. v. R.R. 2001, para. 45, trial decision [conviction upheld]). R.R., an appellate decision upholding the conviction of a Wfty-seven-year-old former minister in the sexual assault of his developmentally challenged neighbour, departed from the trial judge’s problematic Wnding that a young woman with developmental disabilities is incapable of sexual consent and embraced a standard in which the complainant should have full appreciation of what she was consenting to as well as the consequences of her consent. Even verbal consent and active, positive responses to this man’s sexual touching were seen as insufWcient to signal consent. Tied to the embrace of a rigorous consent standard is the emergence of

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a judicial approach to mistaken belief that in many ways exceeds the Ewanchuk rules. Indeed, some judges appear to be moving in the direction of an objective standard for the mistaken belief based on the perspective of the “reasonable person,” despite the quasi-objective basis of the reasonable steps provision: “Section 273.2(b), however, injects an objective standard for unreasonable sexual behaviour [R. v. M.B. 2001, para. 9]. I do Wnd that the accused ... ignored all of the obvious signs that any reasonable person would have noticed and heeded that she did not want sexual intercourse” (R. v. Patrick 2002, para. 24 [emphasis added]). In applying this increasingly objective standard, judges have interpreted “reasonable steps” as the requirement to take positive steps to ensure that a complainant is truly saying yes. Attentive to the nature of the relationship between the accused and the complainant, some decisions have insisted that certain circumstances require seeking unequivocal verbal or non-verbal consent. In R. v. Rodas (1999), for example, a group of men picked up two adolescent girls, drove them to an apartment, and offered them alcohol. The accused then took the Wfteen-year-old complainant into the bedroom, “removed her clothes,” “grabbed her breasts roughly and had vaginal intercourse with her.” Despite evidence that she had said no and tried to push him away, the accused relied on the fact that she had “kept kissing him.” As the judge concluded, “[a]s a general rule, non-verbal behaviours, when relied upon as expression of consent, must be unequivocal. Where this is not the case, avoidance of serious risk-taking ... demands that reasonable steps be taken, not themselves involving sexually assaultive activity, to clarify the limits of any agreement to sexual touching” (para. 88). The defence relied on similar “non-verbal” cues in R. v. Cornejo (2003), a case in which a co-worker with no previous “romantic” relationship with the complainant entered her apartment after an ofWce party. As in Rodas, the judge concluded that active steps to secure consent were required in these circumstances: “After entering a person’s home, late at night without permission, an individual cannot commence sexual activity with a person who has been drinking and was asleep, and then rely on the mistake defence solely on the basis that at one point late in the encounter, the woman moved her body ... These circumstances called for Mr. Cornejo to take reasonable steps to ascertain consent, and as he took no steps, s. 273.2(b) statutorily bars the defence” (paras. 18-19). Without positive steps to ensure consent, many judges are concluding that any belief in consent arises from recklessness or willful blindness. How are we to analyze this shift in judicial approaches to consent? The elaboration of a positive consent standard means that it is now far less likely that acquiescence will be transformed into consent. What Carol Smart (1989, 45) has labelled the “pleasurable phallocentric pastime” of pressing a woman until she submits is disrupted through emerging legal


interpretations. Clear words and actions signalling consent are required, and judges are placing more onus on men who initiate sexual contact to secure agreement. As this shift occurs, the masculine gaze that has long deWned the consent/coercion dichotomy is surely diluted. Yet, at the same time, this shift in judicial approaches requires careful analysis, using new critical tools. In the past, feminist legal theorists have deployed metaphors of disqualiWcation and silencing to account for judicial responses to sexual violation (MacKinnon 1989; Smart 1989). In the current context, we must pay more careful attention to the manner in which stories of sexual violation are both produced and heard and how in the shadow of these legitimized stories constructions of normative heterosexuality are being transformed. As Wendy Larcombe (2002, 132) has argued, in sexual assault law, “the wins are often just as problematic” for feminist critics “as the wholesale discrediting process” that has for so long deWned legal responses to sexual violation. These cases function as symbolic public testimonies of law’s claim to justice and afWrm an individualized and narrow understanding of sexual violence. Such “wins” also construct the shifting characteristics of the “ideal victim,” who functions as the measure of any real complainant’s credibility. The “ideal victim” underlying judicial discourses on consent is clearly linked to the “ideal victim” underlying the case law on access to personal records and sexual history evidence. Consistency, rationality, and self-discipline are overtaking virtue and sexual morality as central requirements of valorized victimhood and legal credibility (ibid.). As in the past, in order to establish their claims as authoritative, sexual assault complainants must produce detailed and consistent testimony and endure often intense cross-examination. In the assessment of judges, Crown attorneys, defence lawyers, and complainant advocates interviewed by Renate Mohr (2002, 14), 1990s law reforms have led to a marginal improvement in the complainants’ experiences. Yet these actors agree that the trial remains “very unpleasant,” “humiliating, and embarrassing.” The nightmarish quality of cross-examination is quite often obscured in the text of legal decisions, but glimpses sometimes appear. Complainants, for example, are called upon to describe in vivid detail the removal of clothing and body parts and their placement. Through this process, complainants are forced to participate in the production of a pornographic vignette, where the standard fantasies of soft porn are transformed into the imagined substance of heterosexual interactions (Smart 1989, 38-40). R. v. J.R. illustrates how judicial decisions construct pornographic narratives. The setting – a hot tub, adolescent girls and boys, alcohol, parents away – is the stuff of a letter to Penthouse. The sixteen-year-old complainant’s story of escalating sexual contact, despite her repeated utterances of “no” and her efforts to push the boy away, is transformed into

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“teasing” behaviour within the judicial narrative. Fatal to the complainant’s credibility, according to the judge’s Wndings of fact, was her admission in cross-examination that “she initiated Xirting with him by rubbing his shin with her foot and later held hands with him” (para. 42). In a decision that seems obsessed with bodily positioning, where the judge observed that “both parties were placing themselves in a manner to accommodate their ultimate goal of engaging in sexual intercourse,” the complainant’s earlier behaviour was transformed into “inconsistency” (para. 45). The decision reinforces a common-sense construction of sexual exchange where Xirtation, at one stage of an encounter, renders later verbal protestation inconceivable. This is indeed a process of sexualization, reliant on conventional means of discrediting “unworthy” victims. Yet the ability to resist this process and to establish oneself as a worthy victim now appears to rest less exclusively on a complainant’s virtue. A complainant’s skill in resisting the domination of cross-examination has become far more crucial in judicial determinations of credibility (Larcombe 2002, 144). Within the context of a trial, cross-examination mimics the domination of sexual violation. The complainant’s capacity to resist this discursive domination, to stick to her version of events against explicit attempts to trip her up, marks her as a successful complainant and a resistant subject. The judge’s description of the complainant in R. v. J.I.C. (1999, para. 28) evokes the characteristics of the credible victim: “D.W. was an articulate, obviously intelligent, apparently sincere, ‘unXappable’ witness, who related her account in great detail and cogently, and stuck to it adamantly ... In fact, in cross-examination, she became even more strongly credible ... She withstood cross-examination very well, and considerable verisimilitude was lent to her testimony by her emotional and apparently sincere ‘outburst,’ in cross-examination, that ‘[h]e was treating me just like a piece of meat!’” Awakened by the uninvited appearance of a fellow ofWcer cadet in her dorm room in the middle of the night, the complainant displayed considerable creativity and deployed physical resistance to avoid a more serious attack. Here the complainant clearly exceeded the boundaries of the “good chaste victim.” She had drunk with the accused earlier in the evening and admitted to kissing him willingly when Wrst awoken. Yet the trial judge accepted her testimony of subsequent “non-consensual” sexual contact. Clearly, it was the complainant’s “unXappability” under cross-examination against calculated defence efforts to destabilize her claims that established her as a victimized, yet resistant, female subject. Consistency and discursive resistance thus constitute privileged markers of ideal victimhood. In order to approach the standard of good victimhood, complainants are also expected to behave in ways that minimize their risks of sexual assault. Here, in the day-to-day discourse of judicial


sexual assault decision making, sexual interactions become constituted as a “criminogenic situation,” one in which crime occurs in the context of routine interactions (for example, walking late at night, waiting for a subway) (Garland 1997). The dynamics of a criminogenic situation include “the presence of valuable targets and criminally-inclined individuals” and “the absence of ... situational controls” (187). Since such situations are ubiquitous, their governance cannot be coercively enacted. Instead, responsibilization becomes a privileged new technology of crime control, aligning with broader objectives of the neo-liberal state in that the governance of crime is achieved “at a distance” through the creation of crimepreventing subjects. Judicial discourses participate in the production of an ideal victim who mimics this subject. The ideal victim is a security conscious subject, a reaction hero, who acts to minimize her own sexual risk. Victim-blaming constructions emerge within judicial discourses when complainants fail to behave as responsible risk managers: “Her apparent maturity and intelligence make it puzzling why at 16 years of age she elected to accompany her friend to C.R.N.’s residence ... By my count there were Wve young men living at the smallish residence, two of whom had their girlfriends staying over. Almost all, including the complainant, were drinking to various states of impairment. Her parents were out of town. It is not unfair, I think to say, putting herself in this setting was of questionable judgment, questionable maturity, careless and without much concern for her personal security” (R. v. C.R.N. 1999, para. 14). In this case and others, complainants are portrayed as behaving stupidly and dangerously in failing to appreciate the sexual risks inherent in social situations. The responsibilized sexual subject is constituted in opposition – the discursively privileged feminine subject is a prudent, individualized agent of sexual assault prevention. This judicially constructed good feminine subject becomes a site for the reproduction of an altered form of victim blaming. If women are now less likely to be characterized as “asking for it” through their provocative behaviour or dress, those who do not display appropriate caution are viewed as being “responsible” for their attacks. Making women’s behaviour and identity the site of rape prevention mirrors the hegemonic construction of sexual violence as an individualized problem that individual women should solve (Mardorossian 2002, 755-56). Not only does the responsibilization of good victimhood result in individualization but it also produces a fearful feminine subject, whose actions and social engagement are necessarily constrained by the imperatives of risk management. As I have demonstrated, judges are increasingly willing to convict in some cases that appear to defy the limits of “good victimhood,” especially in those cases involving complainants who have been drinking. Yet the responsibilized feminine subject is not alone in grounding emergent judicial

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discourses of consent. This cautious feminine subject is complemented by the judicial reconstruction of normative masculinity and by the discursive production of a rational masculine sexual subject. Animating judicial discourses of positive consent is an ideal masculine sexual subject, who embraces sexual responsibility, respects sexual autonomy, and assumes risk when he behaves irresponsibly. This shift away from exclusive judicial scrutiny of complainants’ behaviour and towards the interrogation of the actions of those accused is surely the most signiWcant innovation of recent criminal legal approaches to sexual assault.24 Of course, judicial anxiety about this normative masculine subject is evident. Emerging at the corners of these decisions is the ugly head of a male sexuality, which, once unleashed, is incapable of rational control. Some judges express concerns that new consent standards “unrealistically” require men to exert “immediate control of a hormonal urge” (C.R.N. 1999, para. 45) or to stop in “midstroke” (R. v. I.B. 2002, para. 7). A hydraulic and phallocentric construction of masculine sexuality is thus reinforced even as judges convict. Nonetheless, this “instinctive” sexuality is reined in through a discourse that emphasizes the risk of criminalization and the self-interest of men in avoiding this risk. Mirroring the responsible and cautious feminine subject is an ideal masculine subject whose responsibilization is cultivated and aligned with the objective of sexual assault prevention. In recent judicial decisions, a new model of normative sexuality built upon the standard of the rational, risk avoiding, and responsible sexual citizen increasingly displaces an older dominant discourse that we might describe as the forceful seduction model. While the move to a communicative consent standard is surely positive and may be capable of providing enhanced legal recognition of women’s sexual autonomy, we cannot miss the manner in which the gendered subjectivities and norms of heterosexual behaviour produced in these decisions coincide with the markers of good neo-liberal citizenship. Neo-liberal sexual citizens are free-Xoating, unmarked by race, and detached from the gendered power relations that constitute the very meaning and dynamics of sexual violence. Within recent judicial decisions relating to consent and mistaken belief, normative sexual interaction is reconstructed to resemble an economic transaction, and privileged actors within a sexual marketplace display behaviours that mimic the market citizen of neo-liberalism. Good sexual citizens are reconWgured to resemble rational economic actors, assuming responsibility for their actions and the risks that they take. Much like neo-liberal constructions of the market as a sphere of freedom, judicial discourses mark sexuality as a terrain of choice and autonomy. Coercive sexuality is deWned by a clear boundary. On the other side of this boundary lies a heterosexuality constituted as if it were free from power. The effect is to disarticulate sexual assault from its context within social relations of power, treating it as


if it were an isolated and abnormal event in otherwise equal relations between men and women (and men and children). Like the rational economic actor, however, the rational sexual citizen is a Wction – a Wction that individuates, de-races, and degenders, obscuring the power relations that deWne sexualized violence. The liberal legal discourse of consent identiWes the measure of sexual violence as not whether a woman desires sex but, instead, whether she accedes (Bonnycastle 2000, 73-74). Indeed as Wendy Brown (1995, 163) argues, consent is both a sign of subordination and the means of its legitimation. The production of the neo-liberal sexual citizen on the terrain of criminal law assists the neo-liberal magician in the magical disappearing trick: sexual violence fades from view as sexual assault is individualized and reconWgured as a failure of responsibilization. Conclusion This chapter has told a complex story about the re-privatization of sexual violence against the background of neo-liberalism. Interrogation of recent sexual assault case law reveals a marked judicial resistance to the feminist-inspired features of 1990s law reforms, eroding statutory regimes regulating access to sexual history and complainant records and rendering complainants vulnerable to hysterization. Judicial discourses have reasserted and reconstituted the individualizing frame of criminal law against feminist, contextualized constructions of sexual violence as gendered and systemic. A discursively constituted “ideal victim” has been formed, marked by her rationality, self-discipline, and consistency. It is by orchestrating a gap between this ideal and the “actual complainants” that law exercises discursive power. Just as this chapter has drawn attention to judicial resistance, so too has it insisted that we must look beneath apparently positive developments in judicial approaches to consent. As judges move towards the embrace of a communicative model of consent, the individualizing frame of criminal law is reinforced and sexual subjects are responsibilized. Through responsibilization, criminal law engages in a “governmental” project, exercising power as much through normalization and the “conduct of conduct” as through coercion. While feminist theorists have interrogated the gendered implications of neo-liberal citizenship norms, too little attention has been paid to the production of what I have called the neo-liberal sexual citizen. Sharing a resemblance with the sexual citizen privileged in the current move to same-sex marriage (Young and Boyd, this volume), the idealized sexual subject produced through judicial sexual assault discourses must be decisively problematized. Only through a contextualizing move that places these opaque subjects back into the power relations that sustain the dramatic social problem of sexual violence can we hope to escape the individuating embrace of criminal law.

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Acknowledgments I want to acknowledge the support of a SSHRC Standard Research Grant; Anna Lund’s excellent research on the consent cases; Elizabeth Sheehy’s careful reading of an earlier draft of this chapter; the comments of the anonymous reviewers; and, Wnally, the intellectual rigour and care of the editors of this book. Notes 1 On 6 December 1989, Marc Lépine shot fourteen young women to death at the University of Montreal, screaming that they were a “bunch of feminists,” and then killed himself. In a note, he blamed feminism for ruining his life. In 1991, the federal government established 6 December as an annual National Day of Remembrance on Violence against Women. For an analysis of the policy impact of the Montreal massacre, see Gotell (1997). 2 See section 276 of the Criminal Code (1985). The admission of sexual history evidence to show that the complainant was more likely to have consented or is less worthy of belief was prohibited. Section 276 requires that to be admitted evidence must be relevant to an issue at trial and that it must have signiWcant probative value that is not “outweighed by the danger of prejudice to the proper administration of justice.” In determining relevance and probative value, the judge must consider such factors as the right to make full answer and defence, society’s interest in police reporting, the importance of eliminating any discriminatory beliefs from the fact-Wnding process, the risk that the evidence will arouse prejudice, the prejudice to the complainant’s privacy and dignity, and the right to personal security and protection of the law. 3 Consent is deWned as “the voluntary agreement of the complainant to engage in the sexual activity in question.” See section 273(1)2 of the Criminal Code (1985). 4 Section 273.1(3) of the Criminal Code (1985) provides that no consent is obtained, if (1) the agreement is expressed by a person other than the complainant; (2) the complainant is incapable of consenting; (3) the accused abuses a position of trust, power, or authority; (4) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (5) the complainant expresses a lack of agreement to continue to engage in the activity. 5 Section 273.1(5) of the Criminal Code (1985) provides that “[i]t is not a defence ... that the accused believed that the complainant consented ... if (a) the accused’s belief arose from the accused’s: (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” 6 Section 278 of the Criminal Code (1985) establishes a two-step test for the production and disclosure of complainants’ records. Prior to viewing the records, the judge must determine whether the records meet a “likely relevance” and “necessary in the interests of justice” standard, weighing the necessity for full answer and defence; the probative value of the record; the extent of the reasonable expectation of privacy; the inXuence of discriminatory myths; privacy rights; the integrity of the trial process; and society’s interest in the reporting of sexual offences and the obtaining of treatment by complainants (section 278.5(2)). The legislation speciWes assertions that are, on their own, insufWcient to meet the test of likely relevance, including the existence of the record; that it may contain prior inconsistent statements; that it may relate to the reliability of the witness because she has received therapy; that it may reveal other allegations of sexual abuse; and that it relates to sexual reputation (section 278.3(4)). If records pass this Wrst stage test, the judge reviews the records, considering the same set of factors in determining whether the documents or edited portions are to be turned over to the accused (section 278.7). 7 Section 276 of the Criminal Code (1985). 8 This opposition was articulated before the legislative committee on Bill C-49, which met between 27 April and 4 June 1992. 9 The case law analysis includes all relevant cases related to the interpretation of sections 276(22) and 278(36). My initial search of the Quicklaw legal database returned 117 cases


10

11

12

13

14

15

16 17

18

19

20

21 22

23

24

applying the R. v. Ewanchuk (1999) standards regarding consent. In order to gain a sense of trends, I decided to analyze cases from four provincial jurisdictions: British Columbia (11 decisions); Alberta (9 decisions); Ontario (23 decisions); and Newfoundland (4 decisions). Together these decisions (48 out of 117) represent 41 percent of the total sample and should provide a strong indication of trends in judicial interpretation. The interpretation of these decisions as clear feminist victories and “defeats” from the standpoint of the accused has been most forcefully advanced by criminal law experts (for example, Paciocco 2001). Feminists have advanced more nuanced analyses, recognizing inconsistencies (for example, Lessard 1999; Gotell 2002; Benedet 2001). Two cases involved Aboriginal complainants and defendants: R. v. Boucher (2000) and R. v. Patrick (2002). There was one case of inter-racial sexual assault – R. v. Cheema (2003) – in which two “Sikh” “Indian” defendants were convicted in the sexual assault of a young white woman. In R. v. Khan (2000), a “Pakistani” man was convicted of sexually assaulting his younger neighbour in the context of a job interview. At a 1988 meeting of Canadian criminal lawyers, participants were counselled to “whack the complainant hard” by seeking access to every personal record and using these records as fodder for brutal cross-examination (Schmitz 1988, 22). Karen Busby’s research (2000) on the pre-Mills period found a production rate of almost 67 percent (twenty-four out of thirty-Wve decisions). My analysis revealed a 39 percent production rate in post-Mills decisions. The threshold for “likely relevance” must be met before records are produced to the judge (Criminal Code (1985), section 278). For a description of the two-step procedure laid out in section 278, see note 6 above. See R. v. D.M. (2000, para. 37); R. v. P.J.S. (2000, para 26); R. v. Sutherland (2001, para. 13); R. v. D.W.L. (2001, para. 26); R. v. M.G. (2001, para. 19); R. v. Thompson (2001, para. 6); and R. v. S.P. (2001, para. 10). This interpretation of section 276 was proposed by David Paciocco (1993) as the only interpretation consistent with the legal rights of the accused. Other decisions have afWrmed that unless the complainant has recanted or other allegations are demonstrably false, evidence sought for the purpose of showing a propensity to make “false allegations” is inadmissible (R. v. Porter 2001, para. 3; R. v. N.P. 2001, para. 28; and R. v. S.A. 2002, para. 11). See also the following sexual history cases: Temertzoglou (2002, para. 23) and Toms (2001, para. 21). See also the following records decisions: R. v. Hammond (2002, para. 23); R. v. D.P.F. (2001, para. 36); R. v. L.G (2000, para. 76 and 85); and R. v. C.S. (2000, para. 17). In nine cases that I examined, all or most records were ordered produced. In Wve out of nine of these cases, false memory syndrome provided the rationale for a Wnding of likely relevance. See C.S. (2000), L.G. (2000), R. v. G.P.J. (2001), R.B. (2002), and R. v. W.G. (2002). “F.M.S. is a phrase which has been coined by a private American non-proWt organization ... [it] describe[s] a condition whereby a patient ... has been inXuenced, through suggestions made by her therapist, into genuinely believing she was the victim of historical childhood sexual abuse ... This Foundation primarily consists of parents who have been accused of sexual assault by their children” (Vella 1998, para. 3). Elizabeth Sheehy (2002) makes a similar point. Almost half of sexual assault victims report that they know the offenders, with most of the assaults occurring between friends or acquaintances. Children under twelve are more likely to have been victimized by family members (Statistics Canada 2003-4, 8). Five decisions involved applications arising out of preliminary inquiries. In thirty-one out of forty-three decisions, convictions were entered or upheld. The conviction rate in these decisions is much higher than for sexual assaults reported in the Adult Criminal Court Survey. In 2002, the conviction rate for sexual assault was 41 per cent (Statistics Canada 2003, 21). Of course, racialized men “suspected” of sexual assault have always been subjected to intense scrutiny by police and legal actors (Razack 2002).

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McInnes, John, and Christine Boyle. 1995. “Judging Sexual Assault Law against a Standard of Equality.” University of British Columbia Law Review 29: 339-81. McIntyre, Sheila. 2000. “Tracking and Resisting Backlash against Equality Gains in Sexual Assault Law.” Canadian Woman Studies 20: 72-83. –. 2002. “Feminist Movement in Law: Beyond Privileged and Privileging Theory.” In Radha Jhappan, ed., Women’s Legal Strategies in Canada, 42-99. Toronto: University of Toronto Press. MacKinnon, Catharine. 1989. Towards a Feminist Theory of the State. Cambridge: Harvard University Press. Mandhane, Renu. 2001. “EfWciency or Autonomy? Economic and Feminist Legal Theory in the Context of Sexual Assault.” University of Toronto Faculty Law Review 173(2): 173228. Mardorossian, Carine. 2002. “Towards a New Feminist Theory of Rape.” Signs 27: 743-75. Martin, Dianne. 2002. “Both Pitied and Scorned: Child Prostitution in an Era of Privatization.” In Brenda Cossman and Judy Fudge, eds., Privatization, Law and the Challenge to Feminism, 355-401. Toronto: University of Toronto Press. Martin, Rob. 1992. “Proposed Sexual Assault Bill an Expression of Feminist Hatred.” Lawyers Weekly, 31 January, 9. Matoesian, Gregory. 1995. “Language, Law and Society: Policy Implications of the Kennedy Smith Rape Trial.” Law and Society Review 29: 669-702. Mohr, Renate. 2002. “Words Are Not Enough:” Sexual Assault, Legislation, Education and Information (Bill C-49 and C-46 Key Informant Study). Ottawa: Justice Canada. (In house study, cited with permission). Moorti, Sujata. 2002. Color of Rape: Gender and Race in Television’s Public Spheres. Albany: State University of New York Press. Munro, Vanessa. 2001. “Legal Feminism and Foucault: A Critique of the Expulsion of Law.” Journal of Law and Society 28: 546-67. Paciocco, D.M. 1993. “The New Rape Shield Provisions in S. 276 Should Survive Charter Challenge.” Criminal Reports 21(4): 223-40. –. 2001. “Competing Constitutional Rights in an Age of Deference: A Bad Time to Be Accused.” Supreme Court Law Review 14(2): 114-37. Policy Centre for Victims Issues. 2003. Context of Programs and Services for Victims of Crime in Canada, http://www.justice.gc.ca/en/ps/voc/publications/01/01.html. Razack, Sherene, ed. 2002. Race, Space, and the Law: Unmapping a White Settler Society. Toronto: Between the Lines. Schmitz, C. 1988. “‘Whack’ Sexual Assault Complainant at Preliminary Inquiry.” Lawyers Weekly, 27 May, 22. Sheehy, Elizabeth. 2000. “From Women’s Duty to Resist to Men’s Duty to Ask: How Far Have We Come?” Canadian Woman Studies 20: 99-103. –. 2002. “Evidence Law and ‘Credibility Testing’ of Women: A Comment on the E Case.” Queensland University of Technology Law and Justice Journal 2: 157-74. Smart, Carol. 1989. Feminism and the Power of Law. London: Routledge. –. 1995. Law, Crime and Sexuality. London: Sage. Snider, Laureen. 1990. “The Potential of the Criminal Justice System to Promote Feminist Concerns.” Studies in Law, Politics and Society 10: 143-72. Statistics Canada, 2003-4. Adult Criminal Court Statistics. Juristat by Mikhail Thomas. Catalogue no. 85-002-XIE, vol. 24, no. 12. Statistics Canada. 2003. Sexual Offences in Canada. Juristat by Rebecca Kong, Holly Johnson, Sara Beattie, and Andrea Cardillo. Catalogue no. 85-002-XIE, vol. 23, no. 6. Vella, Susan M. 1998. “Recovered Traumatic Memory in Historical Childhood Sexual Abuse Cases: Credibility on Trial.” University of British Columbia Law Review 32: 91-112. Cases Cited R. v. Batte, [2000] 49 O.R. (3d) 321 (C.A.). R. v. Boucher, [2000] B.C.J. No. 2021 (Prov. Ct.) (QL). R. v. Cheema, [2003] B.C.J. No. 262 (Prov. Ct.) (QL). R. v. Cornejo, [2003] O.J. No. 4517 (C.A.) (QL).

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R. v. Crosby, [1995] 2 S.C.R. 912. R. v. C.R.N., [1999] O.J. No. 3918 (C.A.) (QL). R. v. C.S. (2000), 195 NXd. & P.E.I.R 219 (S.C. ( T.D.)). R. v. D.A.K., [2001] Q.J. No. 6170 (Prov.Ct. (Crim. Div.)) (QL). R. v. Darrach, [2000] 2 S.C.R. 443. R. v. D.M., [2000] O.J. No. 3114 (Sup. Ct) (QL). R. v. D.P.F., [2000] N.J. 272 (S.C.T.D.) (QL). R. v. D.P.F., [2001] N.J. 234 (S.C.T.D.) (QL). R. v. D.S., [2003] O.J. No. 2901 (S.C.J.) (QL) R. v. D.W.L., 2001 NSCA 111. R. v. Ehrstein, 2002 SKPC 82. R. v. Ewanchuk, [1999] 1 S.C.R. 330. R. v. G.P.J., [2001] 151 C.C.C. (3d) 382 (Man. C.A.). R. v. Hammond, [2002] O.J. No. 1596 (Ct. Just.) (QL). R. v. I.B., 2002 ABPC 200. R. v. J.A., [2003] O.J. No. 2803 (C.J.) (QL). R. v. J.I.C., [1999] O.J. No. 4543 (C.J.) (QL). R. v. J.R., [2004] O.J. No. 858 (S.C.J.) (QL). R. v. Khan, [2000] O.J. No. 1892 (C.J.) (QL). R. v. K.K., [2002] N.J. No. 355 (Sup. Ct. ( T.D.)) (QL). R. v. Lalo, 2002 NSSC 49, [2003] N.S.J. No. 270 (QL). R. v. L.G., [2000] O.J. No. 5090 (Sup. Ct.) (QL). R. v. M.B., [2001] O.J. No. 1732 (C.J.) (QL). R. v. Mills, [1999] 3 S.C.R. 688. R. v. M.G., [2001] M.J. No. 61 (Prov. Ct.) (QL). R. v. N.P., [2001] O.J. No. 1828 (Sup. Ct.) (QL). R. v. O’Connor, [1995] 4 S.C.R. 411. Pappajohn v. The Queen, [1980] 2 S.C.R. 120. R. v. Patrick, [2002] B.C.J. No. 2261 (Prov. C.t.) (QL). R. v. P.J.S., 2000 YTSC 23. R. v. Porter, [2001] O.J. No. 2204 (S.C.J.) (QL). R. v. R.A., 2002 NFCA 7. R. v. R.B., [2002] N.J. No. 176 (S.C.( T.D.)) (QL). R. v. R.H.B., 2002 BCCA 1. R. v. Rodas, [1999] O.J. No. 4503 (S.C.J.) (QL). R. v. R.R., [2001] O.J. No. 4254 (C.A.) (QL). R. v. Seaboyer, [1991] 2 S.C.R. 577. R. v. S.A., [2002] O.J. No. 1218 (C.J.) (QL). R. v. S.P., [2001] O.J. No. 2898 (Sup. Ct.) (QL). R. v. Sutherland, [2001] 156 C.C.C. (3d) 264. 2002 NSSC 49. R. v. Tatchell, [2001] 207 NXd. & P.E.I.R. 131 (S.C.( T.D.)). R. v. Thompson, [2001] 141 O.A.C. 1 (C.A.). R. v. Temertzoglou, [2002] O.J. No. 4951 (S.C.J.) (QL). R. v. Toms, [2001] N.J. No. 348 (Sup. Ct.( T.D.)) (QL). R. v. W.G., [2000] N.J. No. 86 (S.C.( T.D.)) (QL).

Appendix 5.1 Post-Mills cases Case

Ruling

R. v. B.(E.), [2002] 162 C.C.C. (3d) 451 (Ont. C.A.)

establishing the right/limits of preliminary cross-examination on records

R. v. Batte, [2000] 49 O.R. (3d) 321 (C.A.)

records found not likely relevant

R. v. C.S. (2000), 195 NXd. & P.E.I.R. 219 (NXd. S.C. ( T.D.))

records found likely relevant

R. v. D.H., [2000] 142 A.R. (Prov. Ct. (Youth Div.))


R. v. D.M., [2000] O.J. No. 3114 (Sup. Ct.) (QL)


R. v. D.P.F., [2000] N.J. No. 272 (S.C. ( T.D.)) (QL)

dealing with procedural aspects of section 278, ruling that one complainant is not a compellable witness in relation to records of another complainant

R. v. D.P.F., [2001] N.J. No. 234 (S.C.(T.D.)) (QL)

Wnding of no reasonable expectation of privacy in records sparking an investigation

R. v. D.W.L., 2001 NSCA 111


R. v. E.A.N., [2000] B.C.J. No. 61 (C.A.) (QL)


R. v. G.P.J., [2001] 151 C.C.C (3d) 382 (Man. C.A.)


R. v. Hammond, [2002] O.J. No. 1596 (Ct. Just.) (QL)

section 278 found not to apply, no reasonable expectation of privacy in records

R. v. Howorko, [2002] A.J. No. 665 (C.A.) (QL)

new trial ordered, in part, on grounds of inadequate disclosure of records

R. v. Hudson, [2001] O.J. No. 5456 (Sup. Ct.) (QL)

some records found likely relevant

R. v. K.A.G. (2001), 192 N.S.R. (2d) 5 (Fam. Ct.)

some records found likely relevant

R. v. Kasook, [2001] 2 N.W.T.R. 683 (N.W.T.S.C.)

establishing the right/limits of preliminary cross-examination on records

R. v. L.G., [2000] O.J. No. 5090 (Sup. Ct.) (QL)


R. v. L.P.M., [2000] O.J. No. 4076 (Sup. Ct.) (QL)

records found likely relevant and disclosed

R. v. L.S., [2000] O.J. No. 3991 (Sup. Ct.) (QL)

section 278 found not to apply, no reasonable expectation of privacy in records

R. v. Lalo, 2002 NSSC 49, [2003] N.S.J. No. 270 (Sup. Ct.) (QL)

dealing with complainant waiver of privacy interests in records r

l Appendix 5.1 (continued) Case

Ruling

R. v. M.A.S., [2001] M.J. No. 516 (Q.B.) (QL)


R. v. M.G., [2001] M.J. No. 61 (Prov. Ct.) (QL)


R. v. N.P., [2001] O.J. No. 1828 (Sup. Ct.) (QL)


R. v. P.E., [2000] O.J. No. 574 (C.A.) (QL)


R. v. P.J.S., 2000 YTSC 23


R. v. Perry, [2000] O.J. No. 2112 (C.A.) (QL)

ordering new trial, in part on basis that defendant had not been given assistance with making a section 278 application

R. v. R.B., [2002] N.J. No. 176 (S.C. ( T.D.)) (QL)


R. v. R.C., [2002] O.J. No. 865 (C.A.) (QL)


R. v. S.P., [2001] O.J. No. 2898 (Sup. Ct.) (QL)


R. v. Shearing, [2002] S.C.J. No. 59 (S.C.C.) (QL)

ruling that section 278 does not apply to diary in hands of accused

R. v. Stewart, [2000] 1815 B.C.J. (C.A.) (QL)

overturning trial decision to stay charges as a result of section 278 application

R. v. Sutherland, 2002 NSSC 49, [2001] 156 C.C.C. (3d) 264


R. v. Tatchell, [2001] 207 NXd. & P.E.I.R. 131 (NXd. S.C. ( T.D.))


R. v. Thompson, [2001] 141 O.A.C. 1 (C.A.)


R. v. W.C., [1999] M.J. No. 542


(Q.B.) (QL) R. v. W.G., [2000] N.J. No. 86 (S.C. ( T.D.)) (QL) R. v. W.P.N., 2000 NWTSC 22

records found likely relevant and disclosed some records found likely relevant

Dispositions: Twenty-eight cases in which there is a decision on “likely relevance.” Thirteen Wndings of “not likely relevant.” Eleven Wndings that at least some records are “likely relevant.” In 39 percent of cases records found relevant.

Appendix 5.2 Post-Darrach decisions Case

Ruling

R. v. M.A.S., [2001] M.J. R. v. Badgerow, [2000] O.J. No. 5446 (S.C.J.) (QL) R. v. D.A.K., [2001] Q.J. No. 6170 (Prov. Ct. (Crim. Div.)) (QL) R. v. D.J.W., [2003] O.J. No. 3057 (S.C.J.) (QL) R. v. D.S., [2003] O.J. No. 2901 (S.C.J.) (QL) R. v. Dempsey, 2001 BCSC 371 R. c. Diktakis, [2002] J.Q. No. 2876 (C.A.) (QL) R. v. Ehrstein, 2002 SKPC 82 R. v. K.K., [2002] N.J. No. 355 (Sup. Ct. ( T.D.)) (QL) R. v. Kynoch, 2002 ABQB 912 R. v. Lalo, [2003] N.S.J. No. 270 (Sup. Ct.) (QL) Lavoie c. R., [2003] J.Q. No. 6283 (C.A.) (QL)

records found not likely relevant admissible

R. v. McDonald, [2003] S.J. No. 508 (Q.B.) (QL) R. v. N.P., [2001] O.J. No. 1825 (S.C.J.) (QL) R. v. Nelson, 2001 BCCA 351 R. v. Porter, [2001] O.J. No. 2204 (S.C.J.) (QL) R. v. R.A., 2002 NFCA 7 R. v. R.H.B., 2002 BCCA 1 R. v. S.A., [2002] O.J. No. 1218 (C.J.) (QL) R. v. T.S., [2003] O.J. No. 4824 (C.J.) (QL) R. v. Temertzoglou, [2002] O.J. No. 4951 (S.C.J.) (QL) R. v. Toms, [2001] N.J. No. 348 (Sup. Ct. ( T.D.)) (QL) R. v. W.S., [2003] O.J. No. 1289 (C.J.) (QL)

ruled admissible withdrawn partially admissible inadmissible inadmissible* admissible inadmissible admissible partially admissible

new trial ordered on basis of procedural errors in consideration of section 276 application* inadmissible inadmissible inadmissible inadmissible admissible* admissible* inadmissible

admissible admissible admissible ruled on application of section 276 – no ruling on admissibility

Dispositions: Ten out of twenty-two cases admissible or partially admissible. Nine out of twenty-two cases inadmissible. Three out of twenty-two cases no ruling on admissibility. * appellate decision

Appendix 5.3 Post-Ewanchuk cases Case

Ruling

R. v. A.H., [2000] O.J. No. 3258 (C.A.) (QL)

conviction set aside, new trial* conviction

R. v. Boucher, [2000] B.C.J. No. 2129 (Prov. Ct.) (QL) R. v. Brooks, [1999] C.M.A.J. No. 8 (Ct. Martial App. Ct.) (QL) R. v. Cam, 1999 ABPC 141 R. v. Chahal, [2002] B.C.J. No. 631 (Prov. Ct.) (QL) R. v. Cheema, [2003] B.C.J. No. 262 (Prov. Ct.) (QL) R. v. C.K., 2004 ABPC 16 R. v. Clayton, [2001] O.J. No. 5231 (Sup. Ct.) (QL) R. v. Cooper, [2002] O.J. No. 4992 (C.J.) (QL) R. v. Cornejo, [2003] O.J. No. 4517 (C.A.) (QL) R. v. C.R.N., [1999] O.J. No. 3918 (C.A.) (QL) R. v. D.W.C., [2000] O.J. No. 3759 (C.A.) (QL) R. v. Davis, [2003] B.C.J. No. 834 (Prov. Ct.) (QL) R. v. Doherty, [2000] O.J. No. 3163 (C.J.) (QL)

R. v. Doll, [2004] B.C.J. No. 285 (Prov. Ct.) (QL) R. v. E.P.B., [2002] N.J. No. 250 (S.C. ( T.D)) (QL) R. v. Georgopoulos, [1999] O.J. No. 3811 (C.J.) (QL) R. v. G.O.G., [2000] B.C.J. No. 804 (Prov. Ct.) (QL) R. v. I.B., 2002 ABPC 200 R. v. J.A., [2003] O.J. No. 2803 (C.J.) (QL) R. v. J.A.W., [2002] O.J. No. 360 (C.A.) (QL) R. v. J.B., [2003] O.J. No. 5461 (S.C.J.) (QL) R. v. J.I.C., [1999] O.J. No. 4543 (C.J.) (QL) R. v. J.R., [2004] O.J. No. 858 (S.C.J.) (QL) R. v. K.D., [2001] N.J. No. 347 (Sup. Ct. ( T.D.)) (QL) R. v. K.F.L., [1999] O.J. No. 2623 (S.C.J.) (QL) R. v. Khan, [2000] O.J. No. 1892 (C.J.) (QL)

conviction quashed, acquittal entered* acquittal conviction conviction acquittal, dismissal committal to trial quashed conviction conviction, acquittal overturned conviction on second act of intercourse conviction upheld acquittal motion for directed verdict of acquittal dismissed conviction conviction conviction conviction acquittal conviction conviction upheld acquittal conviction acquittal conviction acquittal conviction r

l Appendix 5.3 (continued) Case

Ruling

R. v. MacFie, 2001 ABCA 34 R. v. M.B., [2001] O.J. No. 1732 (C.J.) (QL) R. v. M.C., [2000] N.J. No. 117 (Sup. Ct. ( T.D.)) (QL) R. v. M.H.D., [1999] B.C.J No. 2239 (Prov. Ct.) (QL) R. v. M.O., [1999] O.J. No. 3526 (C.A.) (QL) R. v. M.S., 2003 ABPC 193 R. v. Nelles, [2000] O.J. No. 3034 (C.A.) (QL) (appeal of R. v. C.R.N.) R. v. Nelson, 2001 BCCA 351 R. v. P.D., [2002] O.J. No. 3593 (S.C.J.) (QL) R. v. Patrick, [2002] B.C.J. No. 2261 (Prov. Ct.) (QL) R. v. Quintanilla, [1999] A.J. No. 1187 (Q.B.) (QL) R. v. R.B., [1999] O.J. No. 4106 (C.J.) (QL) R. v. R.D.P., 2003 BCSC 1581 R. v. R.R., [2001] O.J. No. 4254 (C.A.) (QL) R. v. R.S., [1999] B.C.J No. 869 (Prov. Ct.) R. v. Rodas, [1999] O.J. No. 4503 (S.C.J.) (QL) R. v. Sazant, [2002] O.J. No. 956 (S.C.J.) (QL)

conviction upheld conviction acquittal

R. v. Sazant, [2003] O.J. No. 4001 (C.A.) (QL) (appeal of R. v. Sazant)

R. v. S.J.B., 2002 ABCA 143

R. v. Smith, 2003 ABCA 308 R. v. T.L.H., [2002] N.J. No. 222 (Prov. Ct.) (QL)

conviction conviction upheld acquittal conviction upheld conviction conviction conviction acquittal acquittal conviction conviction upheld conviction conviction application allowed for mandamus in aid of certiorari to quash preliminary inquiry’s order restore disposition of preliminary inquiry discharging on two counts new trial on incest conviction/sexual assault, conviction upheld conviction upheld conviction

Dispositions: Five out of forty-eight decisions dealt with applications arising out of the preliminary inquiry. In thirty-one out of forty-eight decisions, convictions were entered or upheld (thirty trial decisions, thirteen appellate decisions; including R. v. C.R.N. and appellate decision in the same case, R. v. Nelles).* In twelve out of forty-eight cases, acquittals were entered, convictions set aside on appeal, and a new trial was ordered or convictions were quashed on appeal and an acquittal was entered. * appellate decision

6 Backlash in the Academy: The Evolution of Campus Sexual Harassment Regimes Hester Lessard

In the 1990s, an academic backlash literature Xourished that made a number of alarmist claims about feminists and the state of universities. Typically, the authors warned that universities have been secured as a beachhead from which feminists have launched an effective assault on other areas of social life, that the capture and corruption of legal institutions and principles is central to the success of this takeover, and that a particularly extremist strain of radical feminism directs and controls the agenda. These dire warnings contrast sharply with feminist assessments of the extent to which the social and political order, both within and beyond universities, has responded to feminism in particular and, more broadly, to women’s expectations and demands for inclusion and respect. Furthermore, feminist assessments of law-based strategies for social change have been and remain cautious, expressing an unwillingness to relinquish such strategies given limited options, but pointing often to the deeply compromising pressures that accompany engagement in legal arenas and discourses. Indeed, early in the history of the Canadian Charter of Rights and Freedoms equality protection, its impact on women’s struggles for equality was described “not as one step forward for women, but as two steps back” (Brodsky and Day 1989, 198). The disjunction between the view that feminists brandishing newly “feminized” legal weapons threaten our basic institutions and feminists’ mixed and sometimes pessimistic assessment of law and its relation to social change has prompted some feminists to describe the current period as one of an extended and deepening backlash against feminism. In this chapter, I map the contours of the backlash phenomenon in the university context, using the example of sexual harassment protections. In doing so, I want to trouble the backlash construct itself. The imagery of backlash suggests a three-part narrative. In the Wrst scene, forces for change – here, campus feminists marshalling legal and political resources to demand sexual harassment regimes – achieve a signiWcant measure of

Backlash in the Academy

success. In the second scene, forces of resistance – here, the academic authors and media pundits who decry the changes – argue that the reforms have gone too far and demand a return to more conservative understandings of social relations. In the third and Wnal scene, there is a return back, not to the original starting point but to a more widely supported middle ground that better reXects the values and expectations of Canadian society. Both feminists and their critics deploy backlash narratives to some degree. Some feminists and critical theorists, however, have warned of the dangers of playing into the narrative frame of backlash set in motion by the anti-feminist outcry of the 1990s (Cooper 1997; Newson 1991). Drawing on those critiques, I will examine some of the assumptions underlying the three-part backlash narrative sketched out above. The Wrst part of this chapter brieXy sketches the changes to universities and higher education policy – namely liberalization followed quickly by neo-liberalization – within which the debates over campus sexual harassment issues have taken place. The arc of these large shifts is “background” to the story that forms my main focus. Nevertheless, it is crucially important to understand that the academic community in which women were struggling to gain full membership was simultaneously undergoing a signiWcant transformation. In addition, liberal and neo-liberal ideologies are reXected in, shape, and are themselves shaped by legal discourses, including the law of human rights underpinning university sexual harassment regimes implemented during this historical period. The rest of this chapter is organized to reXect the narrative trajectory of the backlash trope in order to illuminate both its insights and distortions. The second part of the chapter traces the mobilization of campus women around the development of sexual harassment policies at the University of British Columbia (UBC). My objective is to examine the Wrst thesis in the backlash narrative, namely the extent to which the entrenchment of campus sexual harassment policies was the result of the successful deployment of legal discourses and strategies by campus women’s movements. The third part of the chapter explores the second thesis in the backlash narrative, namely the ostensibly inevitable recoil of conservative forces in reaction to campus sexual harassment policies, which, by the 1990s, were commonplace at campuses across Canada. At this point, after setting out some of the themes in the academic backlash literature of the 1990s, I examine two high proWle sexual harassment claims in British Columbia that attracted a sustained and vitriolic outcry in the media. Finally, in the fourth part of this chapter, I turn to the third thesis in the backlash narrative, the idea that the back and forth of progressive reform and conservative recoil is followed by a partial retreat to a more broadly supported middle ground. My focus is the aftermath of the two BC cases discussed earlier in the chapter. I explore the extent of changes

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both to university harassment policies and their usage and to the BC human rights regime under the aegis of which these university policies operate. From Liberalization to Neo-Liberalization in the Academy Liberalization of Universities: 1960s and 1970s In the 1960s, public support for universities in Canada – largely a collection of private institutions often of a religious character – was expanded, and the institutions themselves restructured (ShefWeld 1978, 6-12). Along with the changes came heightened concerns on the part of faculty about academic freedom. In the wake of a number of highly controversial cases at the end of the 1950s involving the dismissal of academics by their university employers, academics began to argue that the core value of academic freedom demanded a wholesale revision of the structure of governance in universities, in particular, the implementation of tenure protections and a softening of the distinction between administration and faculty to ensure faculty participation in governance (Horn 1999, 247-60). Young academics at the time asserted a “natural law” of academic freedom as the foundation of the liberal university. Universities, it was argued, are not corporations but communities of scholars with unique needs for “freedom of inquiry and expression” in order to pursue the “search for truth” (301).1 Tenure documents were drafted protecting academic freedom through contractual guarantees of due process and of job security during good behaviour (300-8). Thus, the liberal language of freedom, merit, due process, and contract – in the social rather than commercial sense – gained a purchase in university culture and was legally entrenched in the employment contracts of faculty. The transformation of university structures and culture in this manner converged with larger social and economic shifts, most notably economic expansion and prosperity, a strengthened commitment to Keynesian notions of public responsibility and universal access to core public institutions, increased entry of women into the paid workforce, and heightened consciousness of the ethnically diverse and culturally pluralist character of Canadian society. However, when one looks at the microcosm of the university, one cannot help but be struck with how limited and compromised the changes in structures and attitudes were. To be sure, the demographic changes were relatively dramatic. For example, women, who had long been part of the university community as its invisible substructure, namely as secretaries, cleaners, and assistants, made up roughly 34.5 percent of the student body at the undergraduate level (Royal Commission on the Status of Women 1970, 170). As one moved up the ladder of the university hierarchy, however, the numbers were not just dismal, but reXected a worsening situation of gender imbalance. The Wgures for the award of doctoral


degrees to women plummeted from a high of 15.2 percent in 1930-31 to 7.6 percent in 1966-67 (170). This decline was also reXected in the proportion of full-time female faculty, which dropped from a high in 1931 of 19 percent to 13 percent in 1969-70 ( Vickers and Adam 1977, 114, Table IV-3). However, the number of women within the academic community by the 1970s, especially at the undergraduate level, appears for the Wrst time to have been sufWcient, at least at some campuses, to sustain a campus women’s movement. Jill McCalla Vickers and June Adam (1977, 130), writing in 1977, articulated many of the concerns of campus women at that historical juncture. They asserted that Canadian universities were complicit in “reinforc[ing] the general societal patterns which limited the participation of women in the professional and public life of our society.” Vickers and Adam pursued the thesis that despite the dramatic spike in numbers of female undergraduates, little had changed in the patterns of female participation both within universities and within the workforce to which university credentials presumably provided entry. In addition, because of women’s larger structural disadvantagement, female students were less diverse and more class privileged than their male counterparts, tending to rely on Wnancial support from parents rather than on Wnancial aid or on their own earnings (30 and 41).2 Thus, although the spike in numbers of women students was impressive, a closer look reveals that the doors to universities were not Xung wide open. In addition, just as the campus women’s movement began to attain a presence, the liberal rhetoric of self-governing communities of scholars lost its punch as economies turned downward in the 1970s. The recently expanded system of higher education was soon immersed in issues pertaining to the underfunding of universities. Neo-Liberalization of Universities: 1980s and 1990s It soon became evident that the prevailing direction of higher education policy was moving towards a closer, more deliberately structured alignment between universities and the private sector (Axelrod 1982, 4). Writing in the late 1980s, Janice Newson and Howard Buchbinder (1988, 72) sketched emerging trends that, in their view, pointed towards increased integration of universities into the productive sphere by placing “the university in the service of the private sector, [and] by tying its creative energies to the needs of production through various funding arrangements and contractual relationships.” The neo-liberal trends at the end of the 1980s consolidated in the 1990s. Donald Fisher and Kjell Rubenson (1998, 80-81) identify the 1995 federal budget as a pivotal point in the restructuring of higher education in Canada. As a result of the redesign of federal provincial transfer payments under this budget, federal funding for higher education, among other things, was signiWcantly reduced. This reduction

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was accompanied by more direct federal cuts to funding for research (81). Consequently, relations among academic institutions have become more stratiWed. As well, relations within institutions have become increasingly differentiated, with a proliferation of ranks at both the upper and lower echelons of the traditional academic hierarchy.3 To some extent, the internal stratiWcations map over more broadly based social hierarchies founded on race, class, and gender (93-95). For example, Marilee Reimer (2004a, 15) points out that the impressive rise in the percentage of women faculty at Canadian universities (29 percent by 2003 from 13 percent in 1973-74) resulted in part from the retirement of large numbers of male faculty during the 1990s as well as the conversion of full-time positions to part-time positions. The latter phenomenon, in combination with increased reliance on limited term contractual positions in the name of Xexibility, has worked to the greater disadvantage of women in the competition for full-time positions (Hornesty 2004, 59). Reimer (2004, 14-15) also argues that recent federal initiatives such as the Canada Research Chairs program (CRC) have not only accelerated the process of creating a “two tiered university system” but also have done so in a manner that reinforces gender bias. Data gathered by the CRC Secretariat demonstrates a consistent underappointment of women (CRC Secretariat 2002; Robbins et al. 2005).4 While commentators generally have warned of the way in which corporatization within universities and the integration of universities into the sphere of production erodes the institutional base for critical judgment and knowledge (Currie 1998; Bruneau and Turk 2004, 130), feminists have been quick to point out that feminist knowledges are particularly vulnerable (Reimer 2004b, 120; Blackmore 1997, 75-96). The impacts are sometimes material and direct – as in the case of pressure placed on academic researchers for matching funds, support from the private sector, or research that is marketable (Clark 2000, 69-86). Demands for economically useful knowledge products tend generally to disadvantage feminist and other critical projects (Hornesty 2004, 54). The impacts can also take a more subtle and indirect form, as in the case of pressures on curricula to teach marketable skills and entrepreneurial values, which again discourage critical and feminist analyses. Finally, increased emphasis on teaching through online and digitized modes of delivery rather than through more dialectical approaches leaves little space or support for many feminist and antioppressive pedagogies (50-51). In short, the present time is one in which universities have been and still are in the process of being signiWcantly reconWgured to conform to neo-liberal priorities. Thus, it is a particularly crucial moment to revisit and reconsider the questions of social equality raised by campus women’s movements in the 1970s and 1980s as well as the nature of the resistance to those efforts.


The Campus Women’s Movement and Sexual Harassment: The UBC Example By the end of the 1970s, feminist lawyers in Canada and the United States were making a concerted effort to convince courts and tribunals that sexual harassment is a legally recognized harm for which a remedy should be available under anti-discrimination legislation. Although much feminist legal analysis was and still is directed at workplace harassment, the relevance to universities – as workplaces and as places of learning – was immediately apparent. Indeed, one of the Wrst cases to attract public attention in the United States and Canada in the 1970s involved the complaint of a female student against a male faculty member at Yale University (Alexander v. Yale University 1980). Vickers and Adam (1970) did not use the term sexual harassment in their account of the barriers facing women at Canadian universities, probably because the term had not yet gained wide currency. Nevertheless, some of the phenomena they referred to would today be identiWed as coming under the rubric of sexual harassment, in particular, under the “negative environment” branch of anti-harassment law. Importantly, Vickers and Adam did not treat such harassing practices and behaviours as analytically separate from the overall structural problems faced by women on campuses, such as gender-differentiated access to student aid and to summer and Wnancial employment, a culture of academic purism, inadequate facilities, and rigid programming “geared to the lifestyles and needs of young men” (38). The systemic understanding of harassment was also reXected in the early work of legal feminists. Constance Backhouse and Leah Cohen (1978, 42-43), writing in Canada, Wrmly rejected the understanding of sexual harassment in terms of sexual desire or individual psychological disturbance. Instead, they attributed sexually harassing behaviours to the broader phenomena of constructions of masculinity, socialization processes, and gendered hierarchies of material and social power (38-52). Catharine MacKinnon (1979, 1-3), writing in the United States, was similarly forceful in locating the dynamic of sexual harassment in a more pervasive set of material, social, and sexual power relations. However, as the term and the phenomenon of sexual harassment garnered more recognition, the individualized dimension began to overshadow the systemic in both popular and legal discourses. Indeed, the popularized notion of sexual harassment in the campus context during this period was the “lecherous professor” who abuses his status and power to extract sexual favours from female students or to ridicule and humiliate them. In their book, The Lecherous Professor, Billie Wright Dziech and Linda Weiner (1984, 122-24) provide a taxonomy of harassers – from the “counsellor-helper” to the “intellectual seducer” – which emphasizes the manipulative, predatory, and deliberate nature of harassment.

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The tension between these two understandings of sexual harassment – on the one hand as individual and, therefore, isolated instances of bad behaviour and, on the other hand, as part of a deeper systemic problem – is evident in the following discussion of the involvement of the campus women’s movement in the development of sexual harassment policies at UBC. UBC provides a useful case study because of the protracted struggle by its campus women’s movement for sexual harassment protections. While York University in 1982 was the Wrst Canadian campus to adopt a sexual harassment regime, York’s initiative was supported by the administration and implemented relatively swiftly (Wetstein 1982).5 Feminist consciousness manifested itself in the campus press at UBC in the late 1960s. During this period, the Ubyssey, the student-run newspaper, was full of images of homecoming queens and objectifying references to the sexuality of female students who, as one caption put it, are “eagerly awaiting the lascivious looks of concupiscient frosh and frat men” (“Luscious Nubile” 1969, 1). However, there was also reporting, albeit sometimes patronizing, on meetings of the Feminist Action League (“‘Females Should Work” 1968, 2); grassroots women’s liberation organizations in Vancouver (Burgess 1969, 5 and 7); the need for campus daycare ( Klein and Parker 1969, 10); and the circulation of a birth control questionnaire by the Women’s Liberation Group (Davies 1970, 5). The pivotal year in terms of a widespread mobilization of campus women appears to be 1970. In the fall term, Ubyssey ran a two-page spread complete with Xow charts entitled “Who Runs the University?” The main point was that the control of UBC was in the hands of “a small elite of 20 men” (Rush 1970, 16 and 17). It was not presented as a feminist point but rather as a 1960s-style anti-elitist, pro-democracy critique. However, the unstated feminist point was probably not lost on campus women. Relatively speaking, an explosion of reporting occurred in the Ubyssey on women’s issues and campus women’s activism in the 1970-71 academic year. Topics ranged from abortion access in Canada (“How Well Do You Know?” 1970, 8), coverage of an on-campus abortion teach in (“Teach In” 1970, 2), analysis of women who work in male-dominated Welds (Wild 1971, 2; Rule 1971, 11), and the secondary status of female bachelor of arts students in the job market (McLeod 1970, 2). Many of these articles appeared in a special “sisterhood” edition of the Ubyssey in 1971. A campus women’s liberation group was established, which facilitated weekly discussions (Stephenson 1971, 13; Day 1971, 16) and set up the Women’s Indignity Centre to deal with complaints of male chauvinism from students, staff, and faculty (“Women’s Complaint Centre” 1970, 5). The centre was essentially a grassroots institution to address sexual harassment – a term that had not yet attained popular or legal currency. The ferment continued over the next three years. The Women’s Indignity


Centre was replaced by the Women’s Grievance Commission (“Women’s Grievance Commission” 1972, 2). An unaccredited women’s studies program attracted four hundred to six hundred people to weekly lectures at which child-minding services were provided (“Bring the Kids” 1971, 8; “Women” 1971, 4; Petrie and O’Brien 1971, 5). As well, in 1972, the Women’s Action Group of the University of British Columbia ( WAG) (“New Action Group” 1972, 8) was created and began to hold hearings on discrimination faced by campus women (“Women’s Hearings to Start” 1972, 6). In the following year, WAG, with a grant from the student council, commissioned one of its members, Shelagh Day, to report on the status of women at UBC (Coull 1973, 1). A few months later in January 1973, Day released her Wndings, which included twenty-two tables setting out data on the comparative remuneration, rank, and hiring patterns of male and female faculty and staff and on the relative numbers of men and women enrolled in various degree programs and at various levels of undergraduate and postgraduate study (Women’s Action Group of University of British Columbia and Day 1973). The tables were interspersed with analysis of the Wgures and the report Wnished with a set of recommendations that extended from policy guarantees of equal education and employment opportunity for men and women, funds for the dean of women to implement changes, an internal grievance procedure for complaints of sex discrimination, curriculum changes including an accredited women’s studies program, childcare and counselling services directed at women, better supports for part-time students, and steps to address the under-representation of women through employment equity programs and pro-active admissions strategies. In other words, the WAG report, although it very consciously used the language of human rights, equal opportunities, and discrimination, recommended a multi-pronged approach aimed at long-term structural change as well as the provision of remedies for individual instances of discrimination. The WAG report initially sparked some reaction on the part of the university, which was then presided over by President Walter Gage. The Gage administration set up two committees “to consider the validity of the assumptions made in the Report, the statistical methods used, and the conclusion reached” (Guedes 1973, 1). These committees were also asked to examine “to what extent discrimination is a result of university policies against women rather than general policies in society” (1). The Gage committees reported on 8 November 1973 and, with few exceptions, endorsed the Wndings contained in the report (Coull 1973, 1-2). However, their recommendations mostly took the form of open-ended vague commitments to work for change that, as the years unfolded, led to further studies but no concrete initiatives (Wheelwright 1979, 1).6 Meanwhile, women students set up women’s collectives and committees (“SRA Backs Womens Committee” 1976, 2; Waters and Parker 1976, 5);

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repeatedly protested administration inaction with respect to the high number of rapes and assaults of women on campus (Ford 1977, 3; “Women’s Group Requests Centre” 1978, 3); and continued to demand more support for the now accredited but under-resourced Women’s Studies curriculum (Walker 1977, 1 and 7). In addition, the annual Lady Godiva ride sponsored by engineering students increasingly became a focal point of campus women’s movement activism (UBC Women’s Students’ OfWce 1980, 5). These local issues by no means displaced a broader focus on international women’s issues and global poverty. As well, there was some evidence that an increasingly complex understanding of women’s lives was taking root, albeit slowly. From early on, activist women highlighted the class dimensions of gender issues and vice versa (McLeod 1970, 2; McLaren 1971, 7; Howard and Rands 1971, 8). A campus group called Gay People of BC was set up in 1972 and did much to place issues of sexuality at the centre of campus discussions (“Speakeasy” 1972, 2). However, not until the end of the decade did the “gay” in the group’s name begin to explicitly reXect lesbian as well as gay male lives and, then, only in incidental ways (Summerhill 1980, 23). In addition, despite a burgeoning lesbian consciousness, there is little evidence that “women” in the context of women’s issues and organizations meant anyone other than heterosexual women.7 Finally, although concerns about racism began to surface in the coverage of campus issues, there is little evidence that the intersectional issues faced by racialized women featured in the concerns of the campus women’s movement or other politically active student groups. For example, when in 1983 six fraternity pledges acted out a rape with an inXatable black female doll at a campus bar, no reported comment emerged from any campus women’s organization (Beynon 1983, 16). However, the ensuing debate in the letters page referred to the feminist outrage over the incident and to both its sexist and racist dimensions (Nielsen 1983, 7; Sobrino 1983, 4; Moyes 1983, 4).8 In short, the picture one gets in the 1970s is of an intellectually rich, politically lively, energetically curious, and institutionally creative campus women’s movement, which is involved not only in campus issues at UBC but also in municipal, national, and global issues. The movement used the essentialist rhetoric of radical feminism typical of the time and was, to a signiWcant extent, captured by the erasures and simpliWcations of this theoretical frame and its own social and structural location. However, its activities and preoccupations were by no means insular or one-dimensional. The pattern at UBC of vigorous and creative student activism and administration inaction persisted throughout much of the 1980s. However, sexual harassment began to attract increasing attention. In 1977, two cases of harassment of female research assistants were reported to have occurred at UBC. The university ombudsman commented that there was very little she could do other than call the harasser. Margaret Fulton, Dean of Women,


who a month earlier had described the UBC administration as “male dominated” and “extremely frustrating” (Booth 1977, 1), urged any women subjected to harassment to seek counselling from her ofWce and lamented the lack of any formal process (Conn 1977, 1). In 1980, both mainstream and campus media reported on the Wrst publicized case in Canada of a faculty member being dismissed for sexually harassing behaviour, sparking a widespread call, which was echoed in the Ubyssey, for internal mechanisms to address the plight of students harassed by professors (Hoffman and Canadian University Press 1980, 8). However, as the 1980s rolled by, sexual harassment at UBC continued to be handled either by a student-run women’s centre, which set up a clinic for student counselling (Patterson 1987, 5) or by the OfWce for Women Students, the replacement for the discontinued Dean of Women Students. The ofWce was primarily an academic and career counselling service. However, it also handled about four to six harassment cases per year through informal mediation, a process that its director described as “awkward” because of the fact that “her ofWce has no ofWcial role” (Flather 1986, 1). The administration did attempt to set in motion a process for producing a sexual harassment policy in 1983. However, the committee entrusted with the task dissolved itself in protest over the limit, which was set out in its terms of reference, to student-on-student harassment (Flather 1986, 1). Meanwhile, students continued to try to Wll the gap left by administration inaction. Five non-campus women’s groups lodged a human rights complaint concerning engineering student activities such as the annual Lady Godiva ride and “pornographic and sexist publications,” which they alleged “discourage women from entering the engineering department” and create a “discriminatory climate” (Conn and Menyasz 1980, 1). Two years later, in the face of non-action by the Human Rights Commission, several campus women’s groups Wled a complaint with the BC ombudsman regarding the Lady Godiva ride (Sanford 1982, 1). Shortly afterwards, the president shut down the engineering newspaper by padlocking the doors to its ofWce indeWnitely (Wheelwright 1982, 1 and 2).9 However, the outcry over the Lady Godiva ride continued until 1987 when engineering students decided to have a clothed Lady Godiva for their annual event (“Godiva Ride Covers Up” 1987, 12). During this period, predominantly the 1980s, discussions about, and coverage relating to, harassment – in addition to that stemming from engineering student activities – appeared in the Ubyssey with increasing regularity. UBC Wnally enacted a sexual harassment policy in 1988 (Scrimshaw 1988, 3). It did so by means of a remarkably top-down process, which made no pretense of consulting campus constituencies or including a range of viewpoints during the initial drafting stage. Rather, a committee was constituted during the summer of 1986. It had no representation of students

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or staff and held in camera meetings (Flather 1986, 1; Patterson 1987, 5; “Sexual Grievance Report Coming” 1987, 2). Nevertheless, the policy was welcomed by student groups and the Women’s Students’ OfWce (Scrimshaw 1988, 3). The policy was typical of the Wrst wave of policies at universities in Canada. It was limited to sexual harassment, extended to both quid pro quo harassment and harassment that created “an intimidating, hostile or offensive environment,” and had formal and informal avenues for pursuing complaints (UBC Board of Governors 1998). Women, Law, and Social Change The story of campus women’s movement activism at UBC demonstrates a complex relationship between women, law, and social change. Legal strategies and discourses were clearly inXuential early on in the movement. Human rights discourses shaped the WAG report, and women groups and representatives consistently lamented the lack of any framework for systematically addressing complaints of harassment in a way that offered remedies and consequences for individuals. Existing human rights frameworks were invoked, albeit with little result, to challenge sexist practices. Davina Cooper’s (1997, 54-55) observation that the backlash construct often obscures the extent to which conservative forces of resistance draw resources from the targeted reforms themselves has some purchase here. The turn to law and legal rights discourses unleashed the language of formal equality, due process, and academic freedom later picked up by conservative faculty and administrators and, in a more simpliWed form, by the popular media to contest, sometimes virulently, the demands of women and members of racialized groups for academic equity and physical and sexual security. The imposition of the template of legal dispute resolution frameworks and rights discourses on campus struggles for inclusion and equity also obscured the systemic dimension of inequality, reducing it to individual instances of deviant behaviour. However, although women’s groups at UBC mobilized legal concepts and discourses, they simultaneously pursued restructuring strategies, creating their own grassroots institutions to address sexual violence and harassment, demanding curricular reform, and organizing support for institutional remedies to address the systemic gender inequalities rooted in economic and social divisions of labour. In addition, at the historical juncture at which women began to mobilize around sexual harassment, the language of law and legal rights was already pervasive on university campuses. Academic freedom and the protection of tenure through contractually entrenched due process protections already provided an important frame for ordering university relations. Thus, it made sense to invoke legal anti-discrimination concepts and protections in order to gain a foothold within the existing normative framework.


Moreover, although the “lecherous professor” was a discursive construction that reinforced the translation of women’s marginalization within universities into a story about individual rights and a few deviant individuals in need of correction, there was and remains a need to protect individual female students from direct sexual coercion. A 1988 study conducted in the United States indicates a normalized pattern of male faculty engaging in sexual relations with female students within which sexual harassment takes place (Fitzgerald and Weitzman 1990, 128-31 and 135). Indeed, the analysis of academic sexual harassment at the time frequently emphasized the way in which both academic culture and social norms pertaining to masculinity reinforced and facilitated the deliberate and intentional individual behaviours that typiWed some harassment (Zalk 1990, 143-46 and 166-69). The persistent refusal of the UBC administration to seriously engage with women’s concerns in the period leading up to the implementation of sexual harassment protections belies both the Wrst premise of the backlash thesis, namely that forces for change – in this case, the campus women’s movement – after a period of struggle achieved some measure of success as well as the notion popularized in the backlash literature that feminists wielding feminized legal weapons were at the forefront of that change. The timing of UBC’s implementation does, however, suggest that law played a signiWcant role in the establishment of harassment policies at university campuses, albeit not in the direct way envisioned by the backlash construct or asserted in the academic backlash literature that burgeoned in the 1990s. By the late 1980s, more general developments in human rights and discrimination law made the implementation of internal policies a matter of expediency for any large employer. Sexual harassment had become a wellestablished legal concept in human rights law ( Jantzen v. Platy Enterprises 1989). As well, the Wrst tribunal decisions afWrming the vicarious liability of employers for the acts of their employees occurred as early as 1975 and were afWrmed in 1987 by the Supreme Court of Canada in Robichaud v. R. (1987). Robichaud also simpliWed the jurisprudence in a way that favoured complainants, eliminating the necessity for tribunals to engage in “legal gymnastics” in order to provide effective remedies (Aggarwal and Gupta 2000, 262). Finally, Robichaud (1987) accelerated the development of internal sexual harassment policies and procedures by stipulating that employers could signiWcantly reduce, if not completely avoid, liability if they “responded quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence” (264).10 In short, by the time most Canadian universities enacted their policies, namely the late 1980s, doing so was a matter of corporate common sense. The story of the implementation of harassment protections at UBC points

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to the dangers of placing social movement activism within the backlash construct without, at the same time, locating that construct within a broader context. A narrative frame that assumes the focal point is the push and pull of politics at the campus level – of demands for change met by conservative indifference or resistance with an eventual “middle ground” resolution – risks obscuring other crucially signiWcant factors (Cooper 1997, 55). Backlash in the 1990s The introduction of sexual harassment policies and procedures at Canadian campuses at the end of the 1980s generated in the 1990s a literary genre: academic backlash literature. The genre is comprised of books written by academics for a broad audience about the perilous state of universities in the wake of the ascendancy of campus social movements. A common theme in this literature is that feminists and other social movement activists on campuses are powerful forces that are able to deploy and, where necessary, transform legal discourses to pursue their agendas, thereby endangering not only universities but also human rights regimes and other foundational institutions and principles (Fekete 1994, 180-85). The literature also exempliWes what Carol Schick (2002, 117) describes as the production of university spaces as ideologically white through “reiterative, normative practices and designations of what is worth knowing” rather than through “individual racist actions, per se.” Indeed, the equation of able-bodied male whiteness with true or valuable knowledge is often barely concealed. For example, one author in this genre, John Fekete (1994, 120-45), argues that biofeminism, in addition to undermining the academy, has created a panic regarding violence against women that becomes even more exaggerated and delusional when the focus is Aboriginal women, older women, or women with disabilities. In Fekete’s sustained polemic predicting doom for universities, the texturing of the bodies and identities of those demanding inclusion in the academy operates to render their voices less credible. The mapping of dangerous outsiders and threatened insiders in explicitly gendered and racialized terms in the academic backlash literature also takes the related form of a distinction between embodied difference and the presumably disembodied nature of knowledge. In this fashion, embodied differences are equated with irrationality, emotionality, and hostility to truth in contrast to what Schick (2002, 110), in her analysis of racism and higher education, describes as “the mythological, pure and safe place of abstraction and objectivity; the world of knowledge and theory; a place for the disembodied mind.” For example, the harshly negative critique pursued in this literature of campus activism around race and gender is elaborated often in terms of a defence of the scholarly culture, namely the hierarchical, rationalist, meritocratic tradition of academic life (Emberley


1996, 25-58), or of “the Western rationalist tradition” (Marchak 1996, 1620 and 144). Arguments are made that universities, faced with a choice between the pursuit of truth and the pursuit of the “good” of social inclusiveness, should choose truth (64 and 162). Moreover, readers are warned that liberal arts programs are particularly at risk because critiques of the canon’s racism and sexism can easily legitimate “a cheap solution to the very substantial dilemma society faces as costs of higher education exceed capacity” (154-55). Although the “market” is blamed for this chilling prognosis, the assumed identity of historic scholarly knowledge with disembodied “objectivity” and of critique with racialized and female others implicitly endorses both the maleness and whiteness of university spaces. The themes in the academic backlash literature are taken up in an even more simpliWed form in the print media during this period. The remainder of this section examines two “hot button” university sexual harassment cases in the 1990s, which were the focus of intense media coverage. The framing of harassment issues in the media as now primarily legal issues about rights and only secondarily issues about women’s status within universities gives added life to the assumptions about the nature of law and legal principles found in the academic backlash literature. In particular, the notion that the legal system has in some sense been captured and corrupted by feminists – a recurrent theme in the academic backlash literature – reappears as the dominant theme in the media coverage of speciWc cases. The primary focus in this section of the chapter is on the litigation in Mahmoodi v. University of British Columbia and Dr. Donald Dutton (1999), a case that began with a claim brought by Faribha Mahmoodi under the internal UBC sexual harassment policy but ended up before a provincial human rights tribunal and eventually the BC Supreme Court (Dutton v. British Columbia ( Human Rights Tribunal) 2001). However, Rachel Marsden’s complaint against Liam Donnelly at Simon Fraser University (SFU) acts as a preface to the analysis of the Mahmoodi litigation as Marsden’s case was the Wrst to attract a large amount of media coverage. The Rachel Marsden and Liam Donnelly Case In 1996, a panel set up under the SFU harassment policy conducted a hearing into a complaint by an SFU student, Rachel Marsden, accusing SFU swim coach, Liam Donnelly, of sexual harassment. Ms. Marsden claimed that Mr. Donnelly, whom she had dated for sixteen months, raped her in September 1995. Mr. Donnelly refused to take part in the proceedings, which went ahead without him (“Independent Arbitration” 1997, 1; Dwyer and Thomson 1997, 42). The panel found in Marsden’s favour and John Stubbs, president of the university, then circulated the report to Marsden and Donnelly to solicit their responses before making a Wnal decision. At this point, Donnelly asked to submit evidence that had not been a part

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of the original proceedings. Stubbs, on the advice of the university’s lawyer, refused to consider new evidence at this stage. Shortly afterwards, the university Wred Donnelly and awarded Marsden $12,000 in compensation. President Stubbs then went on academic leave, leaving acting president David Gagan in charge (Dwyer and Thomson 1997, 42). From this point onward, the Marsden case took several alarming turns. Donnelly publicized his counter accusations to the effect that he was the one who had been harassed by Marsden and that she had deluged him with lewd e-mails and provocative photographs, material that he shared with the press. Marsden admitted to some of this behaviour, painting her actions as attempts to get Donnelly to apologize to her (Dwyer and Thomson 1997, 42). Acting President Gagan revealed that there were serious fairness concerns relating to the processing of Marsden’s complaint and announced shortly afterwards that eleven previous cases had procedural irregularities and would have to be re-examined (Wood 1997, 24; Stern 1999, D3).11 Donnelly appealed his dismissal and eventually an agreement was arbitrated resulting in his reinstatement (SFU Week, 1997a, 1). In September 1997, President Stubbs went on medical leave and the vice-president Jack Blaney was appointed pro tem to replace him. President Blaney vowed to have a revised harassment policy within three months (Murray 1997b, 5). Rachel Marsden’s complaint and the revelations concerning procedural irregularities fulWlled some of the worst predictions of the academic backlash literature, in particular, that campus harassment codes are easily manipulated by vengeful students. Media commentary tended to magnify this view by engaging in a wholesale condemnation of campus harassment policies without any attention to countervailing concerns about equality (Wente and Minvielle 1997, 1; “Salomé Justice” 1997, A12; Martinuk 1999, A22; Jonas 1997, 7; “No Justice behind Closed Doors” 1997, 1; “Not Everyone Is Equal” 1999, A36).12 Media coverage tended also to intensify the misogynist imagery unleashed by the Marsden story. The details concerning Marsden’s stalking of Donnelly – the lewd e-mails and provocative photographs – had the cumulative effect of overshadowing all other considerations. In particular, because complainants under university harassment regimes are mostly female and respondents are mostly male, and because male faculty and personnel continue to dominate the ranks at the senior levels of universities, the Marsden story resonated with broader cultural narratives about demonic and vindictive female Wgures who, despite their subordinate status, brutally destroy relatively powerful men who innocently cross their paths. One editorial explicitly invoked the Wgure of Salomé, a woman who, when spurned by St. John the Baptist, orchestrated his beheading by using her sexual power to manipulate Herod (“Salomé Justice” 1997, A12). Nevertheless, the opprobrium lavished on SFU by the media with respect


to the Marsden case was not untoward given the bizarre twists and revelations by Donnelly, Stubbs, and Marsden herself. It is easier in retrospect, of course, to see how Marsden was performing, in a very public way, the tropes and stereotypes of misogynist loathing. At the time, her behaviour seemed simply astounding and, thus understandably, astoundingly newsworthy. However, Mahmoodi (1999) casts a different and more troubling light on the media’s construction of sexual harassment complainants and the regimes to which they turn for relief. Indeed, coverage of Mahmoodi, juxtaposed with that of the Marsden case, raises questions about the readiness of the media in general to see sexual harassment cases through the lens of Salomé-like stereotypes about female sexual power. The portrayal of Mahmoodi as a dangerous outsider also raises questions about the role of racial stereotypes in intensifying media outrage. Dutton versus Mahmoodi: Evidence and Procedural History Mahmoodi (1999) concerned a complaint by a student, Faribha Mahmoodi, against a member of the UBC psychology department, Dr. Donald Dutton, which ultimately was resolved under the BC Human Rights Code. The BC Human Rights Tribunal, although it dismissed some of Mahmoodi’s allegations, found that Dutton’s conduct towards Mahmoodi violated the code’s prohibition against sex discrimination. Its decision was upheld by the BC Supreme Court on judicial review (Dutton 2001). The substance of the successful part of Mahmoodi’s claim was that Dutton created an unwelcome sexualized environment, which, in his capacity as professor and academic advisor, he was able to impose on her. He did so, the tribunal concluded, by requesting that meetings about her academic opportunities, namely entry into a graduate program, be held at his house over a candlelit dinner or drinks, with seductive music playing, and with conversation about her physical appearance and Dutton’s regret over the lack of physical intimacy in his life. At the time, Mahmoodi was seeking Dutton’s support for her graduate candidacy in the form of a reference letter and some lobbying of the admissions committee. The case had a fraught history. It commenced when both of the parties lodged complaints in March 1995 with the university’s Equity OfWce – Mahmoodi accusing Dutton of sexual harassment and Dutton accusing her of wielding the threat of a sexual harassment complaint to coerce him into smoothing her entry into graduate school. The Equity OfWce’s attempt to investigate Mahmoodi’s complaint stalled when Dutton refused, on the advice of his lawyers, to cooperate (Mahmoodi 1999, para. 266). The Equity OfWce transferred the complaint to the university’s professional discipline process, and Dutton was found guilty of professional misconduct, “although his actions did not include overt sexual interaction.” A letter to that effect was placed in his Wle, and the university offered to allow

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Mahmoodi to redo some of her course work as well as to refund her tuition and pay for counselling (paras. 79, 81, and 278). Mahmoodi rejected the university’s settlement offer and decided to pursue her complaint outside the university system, namely under the BC human rights regime. During the time between Mahmoodi’s Wling of her human rights complaint and the commencement of the tribunal’s hearing into her claim, the Marsden case exploded in the press, Donnelly was Wred and then reinstated, and a complete overhaul of the SFU policy was embarked upon. The Human Rights Tribunal’s task in Mahmoodi (1999) was complicated by its Wnding that both parties lacked credibility. Mahmoodi’s credibility was compromised, according to the tribunal, because she engaged in dishonest and wrathful behaviour and exhibited an unwillingness to take responsibility for it (paras. 175-90). The evidence in this regard focused on her attempts to gain academic advancement through threats and fabrication of a reference letter.13 The tribunal also found that Dutton showed a “serious lack of forthrightness,” speciWcally in his dealings with the university, the police, and the tribunal, and that his behaviour reXected a “signiWcant willingness to omit or bend the truth” (para. 191). In addition, it found that he was duplicitous in his interactions with Mahmoodi and, at some points, acquiesced to her demands in order to curry favour with her (paras. 205 and 210). Dutton’s account of his actions changed signiWcantly, the tribunal noted, once it emerged that there was an audio recording of key conversations between himself and Mahmoodi (para. 191). Faced with the unreliability of both complainant and respondent, the tribunal decided to accept from them only evidence that was corroborated (paras. 190 and 211). On this basis, the tribunal concluded that Dutton “created and controlled a sexualized environment which failed to acknowledge the normal professional boundaries between a professor and a student,” that Mahmoodi acquiesced “only because it was a pre-condition for discussion about her academic objectives” (paras. 230 and 238), and that Dutton, on his own admission, was aware of both Mahmoodi’s discomfort and her vulnerability based on her social and cultural isolation, her student status, and her strong academic ambitions. In short, Dutton discriminated against Mahmoodi by imposing on her an unwelcome sexualized environment (para. 242). Dutton, with the support of an intervention by the BC Civil Liberties Association (BCCLA), sought judicial review of the tribunal’s decision before the BC Supreme Court. The court denied the application and, in the course of doing so, rejected evidentiary arguments as well as the claim by the BCCLA that the tribunal’s decision in Dutton would have a chilling effect, with a disproportionately negative impact on women, on the free exchange of ideas between professors and students (Dutton 2001, paras. 89, 91, and 93-99).


Dutton versus Mahmoodi: Backlash The decisions in Mahmoodi’s favour before the university’s professional discipline body, the BC Human Rights Tribunal, and the BC Supreme Court turned out to be hollow victories, both for Mahmoodi and for sexual harassment complainants more generally. The decisions were overshadowed by an avalanche of virulently negative and caustic commentary in the print media directed both at Mahmoodi personally and at human rights regimes more generally. Mahmoodi’s vindication before several bodies, including the superior courts, made virtually no difference to mainstream media perceptions of sexual harassment law and policy. As in the Marsden case, the print media frequently portrayed the litigation between Dutton and Mahmoodi as an intensely personal struggle between a vengeful, untruthful, and hopelessly incompetent student and a defenceless, somewhat bewildered, senior professor whose reputation was being damaged for no reason. The adversarial nature of the proceedings before the tribunal aggravated this lopsided portrayal. As one reporter observed, the hearing before the tribunal “turned into an aggressive attack on the credibility of the student who brought the complaint” (Matas 1998, A9). Commentary on the case repeatedly invoked testimony that elaborated on Mahmoodi’s failure to declare that she was receiving a student loan at the time she was receiving social assistance, her forgery of a reference letter supporting her admission to graduate school, and her persistence in publicizing her complaint on campus ( Jimenez 1999, B2; Wente 1999, A25; Todd 1999a, A19; Sullivan 2000, A15; Hall 2000, A1 and A2). By itself, the reporting of at least some of these elements is unobjectionable. The tribunal itself accepted parts of this evidence and used it to ground its decision that Mahmoodi was an unreliable witness. What is disturbing, however, is how the cultural iconography represented by the Salomé Wgure in the Marsden coverage erased the fundamental inequalities within which Mahmoodi’s interactions with Dutton took place. In addition, media outrage at Mahmoodi’s determination in pursuing her case resonates with more pervasive ideological constructions of racialized students as “challenging the facts” (Carty 1991, 26) or “as powerful censors” (Lawrence 1993, 15) where such students challenge racism or disagree with dominant views. References to Mahmoodi’s Xawed character and behaviour were, in almost all cases, juxtaposed with references to Dutton’s innocence, respectability, vulnerability, and victimization.14 For example, he was described as “a man with an impeccable academic record and an interest in women’s issues” who was being “stalked by an harassment charge” ( Jimenez 1999, B2), “a world renowned expert on spousal violence” (Hall 2000, A1), living in a Kafkaesque nightmare and feeling the “same trauma symptoms that a woman feels after she’s been raped” (Sullivan 2000, A15), “a world-famous expert

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in violence against women” whose “reputation has been smeared” (Wente 1999, A25), and as belonging to a class of “men with vulnerable families who do not have unlimited resources” ( Todd 1999a, A19). Very little attention was paid to the fact that he was found to have acted unprofessionally by UBC and that the tribunal was troubled enough by the evidence of his duplicity, self interest, and suppression of evidence to Wnd that his testimony, like Mahmoodi’s, was unreliable. Furthermore, the release of the tribunal’s decision in Mahmoodi’s favour did not give pause to those who saw this story as one about a wily, ambitious seductress and a bumbling but likable professor. Instead, the decision seemed simply to broaden the Weld at which media pundits aimed their vitriol, unleashing scorching criticism of human rights regimes, sexual harassment jurisprudence, and university efforts to address discriminatory practices and attitudes. Human rights tribunals were described as bodies “not obliged to apply the usual standards of evidence” (Wente 1999, A25), “wide open to abuse” ( Todd 1999a, A19), “incompetent, tyrannical, and foolish” and “kangaroo courts” (Lautens 1999, A21; “Harassment Case Illustrates Injustice” 1999, A22), and star chambers (Rinehart 1998, A1). Sexual harassment jurisprudence was described as dangerously broad and casting a chill on freedom of expression ( Todd 1999b, A1). Indeed, some commentators, ignoring decades old legislation as well as tribunal and superior court jurisprudence, described human rights codes as not really being part of the law ( Jimenez 2004, A8) and Mahmoodi’s claim regarding imposition of an unwelcome sexualized environment as “entirely new” (Wente 1999, A25). Finally, the UBC Equity OfWce was portrayed as part of the “Orwellian human rights industry” whose work on behalf of women, First Nations persons, visible minorities, and persons with disabilities amounts to “reverse discrimination” (Ferry 1998, A22). Viewed broadly as a public conversation about women’s equality in the academic context rather than narrowly as a legal precedent, the Mahmoodi case, riding on the surge of negative commentary sparked by the Marsden case, appears to have provided the occasion for a concentrated and vicious backlash against the human rights of women and members of racialized groups rather than a celebration of such rights. Indeed, the commentary on the case is replete with the inversions that are the rhetorical signature of conservative backlash discourses, namely the application of concepts and images of powerlessness and discrimination to describe the situation of relatively powerful persons, social groups, and institutions (McIntyre 1993, 53-58; 2000, 179). In this narrative reversal, the particulars of the parties’ relative social positions – Dutton’s professional, gender, and racial privilege and Mahmoodi’s poverty, student status, and racial and social isolation as a woman of colour and refugee from Iran – disappear from view.


Moreover, as feminists and critical race theorists have observed, concepts such as rights, silencing of voices, and marginalization have been deployed effectively in this manner by those seeking to resist changes aimed at social equality.15 The concept of equality itself is reduced within this discourse to its thinnest, most individuated, and classically liberal content, namely formal equality or the right of individuals to identical treatment without any attention to contextual factors of systemic inequality and group marginalization (McIntyre 1993, 26-35) However, as feminists and critical theorists have also pointed out, the backlash construct, although functioning as a useful and revealing short hand for such discursive absurdities, projects its own erasures and distortions. In particular, it reinforces the notion that the conXict between the forces of radical change and conservative resistance will ultimately settle back into a reasonable and incrementally progressive middle ground (Lessard 2004, 135; Cooper 1997, 56). On one level, the idea that there has been a return to a more acceptable middle ground seems accurate. Despite the virulence in the 1990s of the criticism directed at both human rights regimes and sexual harassment jurisprudence, such regimes and their institutional counterparts on university campuses remain Wrmly in place today. The new century has turned a corner with, if anything, reinforced equity and harassment bureaucracies on campuses and somewhat battered, but resilient, human rights regimes. The question eclipsed by this backlash story of progressive change, however, is whether the current state of affairs represents a reasonable and incrementally progressive middle ground. More speciWcally, how exactly have human rights and university equity and harassment regimes been marked by these struggles, and do they, in their current form, actually do the work claimed in the struggle for equality? The Aftermath A causal link between changes to human rights regimes or internal sexual harassment regimes at universities and the backlash in the 1990s is difWcult to Wrmly establish. Nevertheless, as I shall explain, the reforms to the provincial human rights regime are an important part of the backdrop against which more localized changes have occurred. The connection between the Marsden and Mahmoodi furor and changes in the role of internal university sexual harassment policies is more solid. Changes to the BC Human Rights Regime Human rights regimes in British Columbia were subject to signiWcant reforms in 2002. Although no Wrm causal link can be drawn between the changes and the outcry over Mahmoodi (1999), the view promoted overwhelmingly by that outcry – namely that human rights regimes are out

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of control, the dupe of complainants, and in need of radical reform – surfaced in discussions leading up to the amendments (British Columbia, Lovett, and Westmacott 2001, 138). Furthermore, the BC scheme that resulted from the 2002 amendments reXects a diminished conception of the proper role and place of human rights regimes. The amendments leave the actual substantive protections against discrimination untouched, but the overall institutional framework has been radically pruned and reworked. Although some of the streamlining changes are potentially positive, William Black (2002, 1.1.04), a human rights advocate and close observer of human rights systems, argues that the reforms “substantially diminish, if they do not eliminate, the public interest component of human rights protection.” Among other things, Black points out that under the new regime there is very little likelihood that systemic claims will be brought or, if brought, will be successful because of the removal of any public role in forwarding such complaints (1.1.07). Thus, responsibility for systemic discrimination has been, by and large, “privatized” – that is, left to individuals and community groups (West Coast Legal Education and Action Fund 2002, 2-3). Black (2002, 1.1.07) points out that the reforms also dismantle the “watch dog” function of the previous regime, with the result that “no governmental body will be in a position to independently monitor and report on the status of human rights in the province or on the record of the provincial government on human rights.” Finally, the reforms fail to adequately replace the public education functions of the antecedent regime (1.1.06). In short, the human rights regime in British Columbia has been reduced to a structure for the efWcient processing and settlement of private disputes. As Black suggests, the historical “quasi constitutional” dimension of such regimes in terms of addressing the ways in which social inequalities harm societies and communities as well as individuals has been all but eradicated (1.1.01). In sum, the Marsden and Mahmoodi cases may well have contributed to a climate in which a signiWcant curtailment of human rights protection would Wnd political acceptance. Changes to University Sexual Harassment Regimes The effect of the two-year period of virulent criticism of sexual harassment complainants, and of harassment and human rights regimes, during the Marsden and Dutton cases is palpable at the level of university politics and relations. One of the most crucial impacts seems to be in terms of who is using the policies. At the height of the criticism of the Marsden case in the fall of 1997, the campus women’s movement at SFU sounded distinctly besieged, urging women to join the annual “Take Back the Night” march “so that women know we are not giving up this Wght ... if [sexual harassment] policies on campus exist, we want women to use them” (Murray 1997a, 6). In addition, although there is no formal reporting on


the number of complaints for the years 1995 to 1997 at SFU, informal observations on the usage of the policy reported a steep drop in complaints in the wake of the Marsden case (Clarke 1997, 4).16 In the years immediately following, the reported Wgures at SFU on usage remain low, particularly for female complainants.17 At UBC, the proportion of female complainants dropped noticeably in 1997 and continued to slide in 1998 and 1999, recovering slightly in 2000 (UBC 1998).18 At the University of Victoria, the overall number of complaints of all types also dropped in 1998. Although it is part of a slide that commences in 1995, there is a steep drop in the proportion of sexual harassment and discrimination complaints for 1998 (University of Victoria 1994-7; University of Victoria 1997-2001).19 Differing data collection practices at these three universities make both cross-institutional and historical comparisons difWcult. Thus, the statistics raise, but do not answer, questions about the negative impact of the outcry in the print media. Even with more consistent sets of data, there remains no way to Wrmly tie the Xuctuations in usage of campus harassment policies to shifts in the public discourse around campus harassment issues. However, the narrative portions of some of the annual reports by campus harassment ofWces as well as the reform processes engaged in during this period provide a more direct glimpse of how key actors at the universities were interpreting and responding to negative perceptions of campus harassment regimes. The pressure was greatest at SFU because the Marsden case took place wholly under the campus policy and procedures and, as noted earlier, eventually led to the exposure of procedural irregularities not only in Marsden’s case but also in eleven other cases. In the immediate wake of Donnelly’s reinstatement and with astonishing speed, SFU produced a new policy and set of procedures to address harassment ( Kontzamanis 1997, 6; Fitzpatrick 1998, 4).20 The new policy featured strengthened procedural protections for respondents, explicit highlighting of the sovereignty of academic freedom, deletion of provisions addressing environmental or “chilly climate” claims, explicit warning to complainants that trivial and vexatious complaints may subject them to disciplinary measures, and a higher standard of proof of harassment where there is a possibility of dismissal, suspension, or expulsion (SFU 1998-2000).21 The BCCLA participated in the consultation process and urged – it would appear successfully – that provisions allowing climate or poisoned environment claims be removed (BC Civil Liberties Association 1997, Recommendation 2). In addition, the report by the SFU Harassment Resolution OfWce in the year immediately after the Marsden case refers to the need to re-establish trust and reassure persons that the ofWce does not pursue a pro-complainant, anti-respondent “ideological agenda” (SFU 1998-2000, 12). In the 1999 report, the coordinator

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noted that her presentation in which she argued that the tribunal decision in Mahmoodi (1999) had been wrongly decided was well received and that the gender shift in who seeks help under the policy may indicate that men “may be feeling more comfortable using the services provided in the ofWce” (SFU 1998-2000, 17 and 18). UBC’s policy remained unchanged throughout these years, so the annual reports on the policy provide little context for the Wgures on the plummeting usage of the harassment regime that started during the Marsden/ Mahmoodi years. However, at the University of Victoria, a major revision to the harassment policy and procedures was initiated in 1997-98 and unfolded over the next four years. The review was requested by the university president in light of the SFU reforms initiated and completed in that same year (University of Victoria 1997-2001, 10; University of Victoria 1998). The minutes of the committee charged with the review refer to the BCCLA’s objections to the inclusion of “effect” and “offending” in the deWnition of harassment. The committee declined, however, to incorporate the BCCLA’s recommendations in this regard, noting that it is important for the university policy “to be congruent with B.C. Human Rights law and Supreme Court of Canada jurisprudence” ( University of Victoria 2000). In addition, because of the more sedate pace of the University of Victoria’s review, the BCCLA’s input came after a request from the provincial Human Rights Commission that universities expand their coverage to include protection against discrimination, both direct and adverse effects based, on the full set of grounds contained in the provincial Human Rights Code (University of Victoria 1999). The provincial initiative was explained as part of an agenda to reduce the demand on provincial human rights bodies (University of Victoria 1999). In short, it was not motivated so much by the provincial government’s concern for human rights protection as by its concern to reduce the role of, and burden on, public governmental institutions. As such, it Wt into the BC government’s larger deregulation and privatization agenda. The University of Victoria incorporated the suggested expansion of protection in its 2002 policy (University of Victoria 2002). SFU followed with a similar expansion of coverage in 2003, thereby indirectly reversing the earlier deletion of the protection against negative or poisoned environment harassment (SFU 2003; SFU 1988-2003).22 Similar steps were unnecessary at UBC, which had instituted protection congruent with that provided in the provincial human rights regime in 1995 (UBC Board of Governors 1995). Backlash and Historical Change In Robichaud (1987), the Supreme Court of Canada found that under most human rights codes, employers can be held liable for the discriminatory behaviour of their employees and that such liability is mitigated


if preventive steps, such as the institution of internal anti-harassment regimes, have been taken. This holding appears aimed at making the public regime of human rights protection more effective at the level of everyday social relations. The restructuring of human rights regimes in British Columbia, however, uses the Robichaud directive as the centerpiece of a project aimed at privatizing human rights protection, thereby arguably making such protection less effective. To fully understand this disturbing outcome, the university and provincial regimes have to be placed in context, especially as none of the three BC university policies under consideration foreclose access to the BC human rights regime as an alternative to internal mechanisms. The double layer of protection for university members is illusory, however. At the same moment that government representatives were urging universities to expand their internal protections, the very same government was restructuring to prioritize the individual dispute resolution dimension of its regime at the expense of its more public, transformational dimension. Meanwhile, federal and provincial restructuring of higher education, as noted in the Wrst part of this chapter, has produced a more corporatized and stratiWed university, which systemically entrenches social hierarchies based on race, class, and gender. The individualized dispute resolution models of harassment protection, which are in place at both the university and, in British Columbia, at the provincial level, can do little to address such deepening structural inequities. Even “poisoned environment” claims, which have a clearly systemic dimension, fall far short of engaging directly with the gendered and racialized aspects of the economic restructuring of universities. Thus, campus harassment policies present activists with an increasingly familiar conundrum under neo-liberalism, namely with reforms at the university level that seem aimed at expanding inclusion but that are part of a broader privatization project and, thus, at a fundamental level, are reXective of a rejection of public responsibility to address the harms of social exclusion. Conclusion This chapter has examined the anti-feminist backlash against university sexual harassment policies while simultaneously troubling the backlash construct. These regimes were indeed on the political agenda of the campus women’s movement in the 1970s and 1980s, but it would misrepresent the power of the campus women’s movement to suggest that campus feminists were their “authors.” For the most part, harassment policies were introduced only when jurisprudential developments made such regimes a matter of corporate common sense. In addition, the policies reXected a jurisprudential understanding of the harm of harassment that only partially addressed the more substantive, systemic concerns that were the

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focus of campus women’s activism. Finally, the resort by the campus women’s movement to the discourse of legal rights followed on the turn to rights during the liberalizing reforms of the 1960s. The academic backlash literature of the 1990s set in motion a series of symbolic reversals in which powerful actors and institutions were portrayed as victims, while untenured faculty, beleaguered feminist academics, women’s studies departments, and female students were portrayed as powerful forces able to capture and corrupt not only university policy discourses but also legal discourses. A more widely disseminated media campaign against human rights regimes ensued – a campaign that often had a distinctly misogynist Xavour. The backlash trope usefully highlights a set of rhetorical moves that typify conservative resistance to attempts to transform the whiteness and maleness of university spaces. While such resistance is no doubt complex and multifactored, this complexity by no means negates or alters its explicit anti-feminist, anti-inclusionist intent. The backlash trope is, however, dangerously misleading to the extent that it presumes incremental progress over the course of a period of reform and resistance. In the case of university sexual harassment policies and procedures, the assumption that there has, overall, been progress is suggested by the fact that today sexual harassment policies are an ordinary feature of the legal and policy framework at universities. However, in order to get a more accurate assessment, one has to recall, Wrst, that such policies in the form in which they were instituted only partially reXected the aspirations of the campus women’s movement. Second, the Wgures on current usage of the policies raise serious questions about whether such policies are in fact responsive to the concerns of women at universities. Finally, the effectiveness of such policies has to be placed against the backdrop of larger changes in universities, namely the neo-liberalization of universities, which has, to some extent, deepened internal patterns of racialized class and gendered stratiWcation. University harassment policies also have to be placed against the backdrop of shifts in the larger political sphere, in particular, the implementation of neo-liberal privatizing agendas in areas other than higher education, such as human rights protection. BC universities have undergone restructuring that threatens to systemically reinforce exclusion and social inequalities within university communities during a period when the provincial government is dispensing with its commitment to address systemic discrimination through its human rights regime. Although internal university harassment regimes have been expanded where necessary to reXect the scope of provincial protections for human rights, both regimes are, in effect, largely aimed at the settlement of private disputes. In sum, the central assumption underlying the narrative frame of the backlash trope, namely that historical progress occurs incrementally as the product of more extreme shifts and tensions, is belied


by a more contextualized, historically attentive account of the development of campus sexual harassment regimes. Indeed the “one step forward two steps back” metaphor might more accurately capture the complex relationship between sexual harassment regimes and progressive social change on university campuses.

Acknowledgments Research for this chapter would not have been possible without the imagination and skills of numerous research assistants, in particular, Angela Cameron, Krista Robson, Olga Sanmiguel, Nikki Gershbain, Diana Young, and Keltie Mann. Notes 1 Horn is quoting Vernon Fowke and Bora Laskin (1959). 2 Female students at the time received smaller grants and bursaries and were less likely to Wnd summer jobs. In addition, women who did Wnd summer jobs tended to earn roughly half what male students earned in the same period, and most of those jobs tended to be menial rather than career oriented (Vickers and Adam, 1970, 41 and 42). 3 Paul Axelrod (1982, 184 and 187) traces the beginnings of the trend towards short-term, non-tenured positions to Wll teaching needs in the 1970s in Ontario, noting that the trend took hold at the very moment that the proportion of women graduating from colleges and universities was beginning to climb. The Canada Research Chairs program is a recent example of the proliferation, with gendered impacts, of levels at the higher end of the academic workforce. 4 While 2001 Wgures show that roughly 33.9 percent of university teachers are female, only 20 percent of Canada Research Chairs are female (cumulative totals as of April 2005) (Robbins et al. 2005). 5 Five campuses were selected for this project: University of Toronto, University of British Columbia (UBC), York University, Simon Fraser University, and University of Victoria. The three BC campuses were selected because their proximity to me facilitated access to their archives and records. York was selected because it was the Wrst campus to adopt a sexual harassment policy. University of Toronto was selected because the size and urban character of the campus seemed likely to provide, as indeed it did, a rich and early record of campus women’s movement activism. In this chapter, for reasons of space, I focus mainly on UBC. 6 For example, in 1976, a presidential committee was appointed to determine if sex discrimination exists at UBC (“Sex Discrimination Studied” 1976, 3). 7 I am dealing with a very incomplete record, however. The internal records of the Student Women’s Centre, which would give a fuller account of its activities and commitments than the Ubyssey for these crucial years, have disappeared. 8 In one letter, the fact that the doll represented a racialized women was interpreted as disregard for “Third World” women, suggesting that racialized women had very little political presence or social visibility on campus (Nielsen 1983, 7). Again, the incompleteness of the records of campus women’s organizations makes it hard to assess the silence of these organizations regarding the fraternity activities. 9 A parallel struggle unfolded at the University of Saskatchewan where a highly publicized complaint was pursued against the campus engineering newspaper in 1984. The Saskatchewan complaint was brought under a legislative provision drafted with the engineering paper’s violent misogynism in mind. Nevertheless, the tribunal’s Wnding of discrimination was overturned by the Saskatchewan Court of Appeal in 1989 (Saskatchewan Human Rights Commission v. Engineering Students’ Society 1984; Wiegers 1992). 10 Note that some jurisdictions legislatively overruled Robichaud v. R.’s (1987) employer liability rule the following year (Aggarwal and Gupta 2000, 262). 11 The irregularities had to do with the selection of members of the committees set up to

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adjudicate complaints. Under the Simon Fraser University (SFU) policy in force at this time, the president of the university appoints members of the university community to a Harassment Panel. The panel members then elect a chair. Where a formal complaint is made, an investigative committee is appointed by the panel chair from members of the panel to deal with the complaint. The investigative committee then conducts a hearing into the matter (SFU Policy and Procedures 1991, sections 6 and 9). From roughly 1993 to 1997, Patricia O’Hagan, SFU’s harassment coordinator, with President Stubbs’s approval, picked persons to serve on investigative committees who were not appointed to the panel (Wood 1997, 24). In Marsden’s case, the impropriety of this practice was compounded by charges that O’Hagan was a close friend of Marsden’s (Stern 1999, D3). Judy Rebick (1997, 26) provided a rarely expressed counter view in an editorial, which identiWed the tenor and stance of media coverage as part of the problem. The tribunal also found that Mahmoodi’s receipt of both a student loan and social assistance payments on fraudulent grounds during the period when the events were taking place conWrmed its Wndings on credibility. An exception is an editorial in The Province (Vancouver), which observes that both parties “had no qualms about playing fast and loose with the facts” and goes on to list indicators of Dr. Dutton’s extensive expertise on abusive relations between men and women in order to chide him for insisting on his innocence (“Guilty Prof” 1999, A54). The most highly studied and dissected instance of backlash in this sense concerns the political correctness movement in the late 1980s and early 1990s. Political correctness, originally a term signifying the need to include marginalized social groups and voices, was appropriated by forces resisting such inclusion and came to signify the stiXing or silencing of voices of dominant groups (Weir 1995, 51-87; McIntyre 1993, 53). See also the debates in the United States over campus speech codes in which racist backlash is constructed as constitutionally protected expression while protest by racialized faculty and students is constructed as silencing of free expression (Matsuda et al. 1993). A search of the SFU archives and the president’s ofWce Wles yielded no annual reports for these three crucial years. The SFU annual reports do not provide a gender breakdown for sexual harassment complainants so it is hard to derive precise Wgures on usage. However, the 1998 report shows a steep drop in the number of sexual harassment complaints overall, and, within the group of users with respect to all types of complaints, there is a small but noticeable drop in the proportion of female complainants. The 1999 report shows roughly the same (comparatively low) level of usage but with a continuing slide in the proportion of female complainants. In 2000, the number of sexual harassment complaints is slightly less and the number of female complainants with respect to all types rebounds slightly to the 1998 level. Differing data collection practices during this period, in addition to the gap for the years 1995 to 1997, make these cross-historical comparisons very rough (SFU 1992-4; SFU 1998-2000). The UBC Equity OfWce annual reports provide a gender breakdown with respect to complaints against women, men, unknown persons, and the university. University of Victoria, unlike the other two BC institutions discussed, uses an academic, rather than a calendar, year as its reporting period for harassment issues. The crucial year, 1998-99, does show a sharp drop in the proportion of female complainants, but this probably reXects the unusual occurrence of three large group claims from the same workplace in which all of the complainants were male. I looked at the proportion of sexual harassment and discrimination complaints over the requisite time period as an alternative gauge of how the public debate on campus sexual harassment policies might have affected usage of those policies. The 1998-99 year shows a steep drop from an average of 20 to 25 percent down to 7 percent for that year. It returns to 18 percent and 16 percent respectively for the subsequent two years (University of Victoria 1997-2001). The initiative was announced in September 1997, the draft policy was Wnalized in December, and it was approved by the Board of Governors on 29 January 1998 (Kontzamanis 1997, 6; Fitzpatrick 1998, 4; SFU 1998-2000). Dutton and the BC Civil Liberties Association similarly argued, without success, in favour of a higher standard of proof before the BC Supreme Court.


22 Simon Fraser University’s reinstatement of protection against negative or poisoned environment harassment is not explicit on the face of the policy, which uses the language of “hostile and intimidating environment” only with respect to personal harassment – a category of harassment that is disconnected from any of the grounds in the BC human rights legislation. However, the policy protects against discrimination and, in doing so, refers to the deWnition of discrimination in the Supreme Court of Canada’s decision in B.C. v. B.C.G.S.E.U. (1993) (SFU 1988-2003, s. 1). References Aggarwal, Arjun P., and Madhu M. Gupta. 2000. Sexual Harassment in the Workplace, 3rd edition. Toronto: Butterworths. Axelrod, Paul. 1982. Scholars and Dollars: Politics, Economics, and the Universities of Ontario 1945-1960. Toronto: University of Toronto Press. Backhouse, Constance, and Leah Cohen. 1978. The Secret Oppression: Sexual Harassment of Working Women. Toronto: MacMillan. BC Civil Liberties Association. 1997. “Comments on the Proposed Simon Fraser University Harassment Policy.” 30 September. Beynon, Robert. 1983. “‘Shameless’ Pledges Shock Pit.” Ubyssey, 21 January, 16. Black, William. 2002. “The Revamped Human Rights Code: Principles and Practicalities.” In Continuing Legal Education Society of British Columbia, ed., Human Rights: 2002 Update, 1.1-1.1.18. Vancouver: Benwell Atkins. Blackmore, Jill. 1997. “Disciplining Feminism: A Look at Gender Equity Struggles in Australian Higher Education.” In Leslie Roman and Linda Eyre, eds., Dangerous Territories: Struggles for Difference and Equality in Education, 75-96. New York: Routledge. Booth, Vicki. 1977. “UBC’s Dean of Women Quits.” Ubyssey, 18 October, 1 and 3. “Bring the Kids.” 1971. Ubyssey, 17 September, 8. British Columbia, Deborah Lovett, and Angela Westmacott. 2001. Human Rights Review: A Background Paper Prepared for the Administrative Justice Project. Available at http:// www.gov.bc.ca/ajol/popt/publications_and_research.htm.#archives Brodsky, Gwen, and Shelagh Day. 1989. Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? Ottawa: Canadian Advisory Council on the Status of Women. Bruneau, William A., and James Turk, eds. 2004. Disciplining Dissent: The Curbing of Free Expression in Academia and the Media. Toronto: James Lorimer. Burgess, Robin. 1969. “Fighting the Stamp of Inferiority: What Vancouver Women Are Doing.” Ubyssey, 18 November, 5 and 7. Canada Research Chairs Secretariat (CRC). 2002. Gender-Based Analysis of the Canada Research Chairs Program, http://www.chairs.gc.ca/web/about/publications/gender_e.pdf. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11. Carty, Linda. 1991. “Black Women in Academia: A Statement from the Periphery.” In Himani Bannerji et al., eds., Unsettling Relations: The University as a Site of Feminist Struggles, 13-44. Toronto: Women’s Press. Clark, Ann E. 2000. “Academia in the Service of Industry: The Ag Biotech Model.” In James Turk, ed., Corporate Campus, 69-86. Toronto: James Lorimer. Clarke, Allison. 1997. “Harassment Complaints down at Simon Fraser.” Peak, 27 October, 4. Conn, Heather. 1977. “UBC Women Face ‘A for a lay’ Trap.” Ubyssey, 1 November, 1. Conn, Heather, and Peter Menyasz. 1980. “Women Gear up for EUS Battle.” Ubyssey, 28 February, 1. Cooper, Davina. 1997. “‘At the Expense of Christianity’: Backlash Discourse and Moral Panic.” In Leslie Roman and Linda Eyre, eds., Dangerous Territories: Struggles for Difference and Equality in Education, 43-62. New York: Routledge. Coull, Gary. 1972. “AMS Backs Women’s Study.” Ubyssey, 20 October, 1. –. 1973. “U.B.C. Women Second Class.” Ubyssey, 9 November, 1-2. Currie, Jan. 1998. “Introduction.” In Jan Currie and Janice Newson, eds., Universities and Globalization: Critical Perspectives, 1-13. Thousand Oaks, CA: Sage Publications.

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Davies, Jan. 1970. “Contraception Controversy: What to Do with Existing Services.” Ubyssey, 6 February, 5. Day, Shelagh. 1971. “Journal of a Liberation Fall.” Ubyssey, 5 February, 16. Dwyer, Victor, and Glenda Thomson. 1997. “A Campus Divided.” Maclean’s 110(30): 42. Dziech, Billie Wright, and Linda Weiner. 1984. The Lecherous Professor: Sexual Harassment on Campus. Boston: Beacon Press. Emberley, Peter C. 1996. Zero Tolerance: Hot Button Politics in Canada’s Universities. Toronto: Penguin Books. Fekete, John. 1994. Moral Panic: Biopolitics Rising. Montreal: R. Davies Publishing. “‘Females Should Work to Remove Male-Female Differences’ – Ruthie.” 1968. Ubyssey, 26 September, 2. Ferry, Jon. 1998. “The UBC Example of Old-Fashioned Sexism.” Province (Vancouver), 26 May, A22. Fisher, Donald, and Kjell Rubenson. 1998. “The Changing Political Economy: The Private and Public Lives of Canadian Universities.” In Jan Currie and Janice Newson, eds., Universities and Globalization: Critical Perspectives, 77-98. Thousand Oaks, CA: Sage Publications. Fitzgerald, Louise, and Lauren Weitzman. 1990. “Men Who Harass: Speculation and Data.” In Michele A. Paludi, ed., Ivory Power: Sexual Harassment on Campus, 125-40. Albany, NY: State University of New York Press. Fitzpatrick, Erin. 1998. “Board of Governors Approves New Harassment Policy and Glove Vote Proposal.” The Peak, 9 February, 4. Flather, Patti. 1986. “Sexual Harassment Committee Lacks Students, UBC Staff.” Ubyssey, 26 September, 1. Ford, Kathy. 1977. “Women Won’t Pay Parking Fines, Fear Attacks.” Ubyssey, 8 February, 3. Fowke, Vernon, and Bora Laskin. 1959. “Report of the Investigation into the Dismissal of Professor H. S. Crowe by United College, Winnipeg, Manitoba.” CAUT Bulletin 7 (April): 4. “Godiva Ride Covers Up.” 1987. Ubyssey. 6 February, 12. Guedes, Ryon. 1973. “Changes Not Coming Fast Enough.” Ubyssey, 25 September, 1. “Guilty Prof Practically Wrote the Book on Gender Power Struggles.” 1999. Province (Vancouver), 28 October, A54. Hall, Neal. 2000. “Professor Says Human Rights Tribunal Damaged His Life.” Vancouver Sun, 6 May, A1 and A2. “Harassment Case Illustrates Injustice.” 1999. Vancouver Sun, 29 October, A22. Hoffman, Rick, and Canadian University Press. 1980. “Sexual Harassment.” Ubyssey, 20 March, 8. Horn, Michiel. 1999. Academic Freedom in Canada: A History. Toronto: University of Toronto Press. Hornesty, Jenny. 2004. “Corporate Challenges to Academic Freedom and Gender Equity.” In Marilee Reimer, ed., Inside Corporate U: Women in the Academy Speak Out, 43-66. Toronto: Sumach Press. “How Well Do You Know Canadian Abortion Laws?” 1970. Ubyssey, 30 October, 8. Howard, Pat, and Jean Rands. 1971. “Women Earn Less.” Ubyssey, 5 February, 8. Human Rights Code, R.S.B.C. 1996. c. 210, as amended. “Independent Arbitration Board Established to Review Controversial Donnelly Dismissal.” 1997. SFU Week, 19 June, 1 and 2. Jimenez, Marina. 1999. “Stalked by a Harassment Charge.” National Post, 9 October, B2. –. 2004. “Sexual Harassment an Epidemic in B.C.” National Post, 7 November, A8. Jonas, George. 1997. “From Romeo and Juliet to Liam and Rachel.” Kingston WhigStandard, 20 June, 7. Klein, Sibylle, and Candace Parker. 1969. “Student Mothers Need Better Child Care.” Ubyssey, 21 November, 10. Kontzamanis, Angela. 1997. “President Pro Tem’s Report Main Item at Board.” The Peak, 29 September, 6. Lautens, Trevor. 1999. “It’s Time for Ujjal Dosanjh to Stand Up for Justice.” Vancouver Sun, 6 November, A21.


Lawrence, Charles R., III. 1993. “If He Hollers Let Him Go: Regulating Racist Speech on Campus.” In Mari Matsuda et al., eds., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, 53-88. Boulder: Westview Press. Lessard, Hester. 2004. “Backlash and the Feminist Judge: The Work of Justice Claire L’Heureux-Dubé.” In Elizabeth Sheehy, ed., Adding Feminism to Law: The Contributions of Justice Claire L’Heureux-Dubé, 133-42. Toronto: Irwin Law. “Luscious Nubile” (photograph caption). 1969. Ubyssey, 9 September, 1. McIntyre, Sheila. 1993. “Backlash against Equality: ‘Tyranny’ of the ‘Politically Correct.’” McGill Law Journal 38(1): 1-63. –. 2000. “Studied Ignorance and Privileged Innocence: Keeping Equity Academic.” Canadian Journal of Women and the Law 12(1): 147-96. MacKinnon, Catharine A. 1979. Sexual Harassment of Working Women: A Case of Sex Discrimination. New Haven: Yale University Press. McLaren, Jean. 1971. “Women as Workers: Their History.” Ubyssey, 5 February, 7. McLeod, Judy. 1970. “Women Forced into Menial Positions Even with B.A.” Ubyssey, 27 November, 2. Marchak, M. Patricia. 1996. Racism, Sexism, and the University: The Politicial Science Affair at the University of British Columbia. Montreal and Kingston: McGill-Queen’s University Press. Martinuk, Susan. 1999. “Truth, Justice Scrapped to Make Way for Political Correctness.” Vancouver Province, 11 August, A22. Matas, Robert. 1998. “Professor’s Accuser under Attack.” Globe and Mail, 9 May, A9. Matsuda, Mari, et al., eds. 1993. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder: Westview Press. Moyes, Craig. 1983. Letter to Editor. Ubyssey, 8 February, 4. Murray, Pam. 1997a. “Take Back the Night Has New SigniWcance for University Women.” The Peak, 15 September, 6. –. 1997b. “University’s New President Pro Tem to Focus on ‘Basics.’” The Peak, 15 September, 5. “New Action Groups to Study Campus Women.” 1972. Ubyssey, 25 January, 8. Newson, Janice. 1991. “‘Backlash’ against Feminism: A Disempowering Metaphor.” Resources for Feminist Research 20: 3-4. Newson, Janice, and Howard Buchbinder. 1988. The University Means Business. Toronto: Garamond Press. Nielsen, Carol. 1983. Letter to Editor. Ubyssey, 28 January, 7. “No Justice behind Closed Doors.” 1997. Times Colonist (Victoria), 11 June, 1. “Not Everyone Is Equal in Some Sexual Harassment Investigations.” 1999. Province (Vancouver), 15 August, A36. Patterson, Janet. 1987. “UBC Needs Sexual Harassment Procedures.” Ubyssey, 16 January, 5. Petrie, Ann, and Jan O’Brien. 1971. Letter to Editor. Ubyssey, 26 October, 5. “President Asks Board for Medical Leave; Mediation Reinstates Donnelly as Coach.” 1997. SFU Week, 31 July, 1 and 2. Rebick, Judy. 1997. “Sexual Politics 101: ‘He’ Who Casts the First Stone.” Canadian Forum 76(862): 26. Reimer, Marilee. 2004a. “Introduction: Does My University Include a Woman’s Voice?” In Marilee Reimer, ed., Inside Corporate U: Women in the Academy Speak Out, 11-42. Toronto: Sumach Press. –. 2004b. “Will Women’s Studies Programs Survive the Corporate University?” In Marilee Reimer, ed., Inside Corporate U: Women in the Academy Speak Out, 118-37. Toronto: Sumach Press. Rinehart, Dianne. 1998. “Harassment Cases Raise Issues of Men’s Rights.” Vancouver Sun, 20 June, A1. Robbins, Wendy, Michele Ollivier, John Hollingsworth, and Rosemary Morgan. 2005. Ivory Towers: Feminist and Equity Audits 2005. Canadian Federation for Humanities and Social Sciences, http://www.fedcan.ca/english/issues/issues/audit. Royal Commission on the Status of Women in Canada. 1970. Report of the Royal Commission on the Status of Women in Canada. Ottawa: Queen’s Printer.

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Rule, Jane. 1971. “Writer’s Recognition Often Comes as Scorn.” Ubyssey, 5 February, 11. Rush, Stuart. 1970. “Who Runs the University?” Ubyssey, 8 September, 16-18. “Salomé Justice.” 1997. Globe and Mail, 18 July, A12. Sanford, Glen. 1982. “Ride Fighters File Complaint.” Ubyssey, 9 February, 1. Schick, Carol. 2002. “Keeping the Ivory Tower White: Discourses of Racial Domination.” In Sherene Razack, ed., Race, Space, and the Law: Unmapping a White Settler Society, 99120. Toronto: Between the Lines. Scrimshaw, Stephen. 1988. “Sexual Harassment Policy Implemented.” Ubyssey, 11 March, 3. “Sex Discrimination Studied.” 1976. Ubyssey, 5 February, 3. “Sexual Grievance Report Coming.” 1987. Ubyssey, 23 January, 2. ShefWeld, Edward. 1978. “The National Scene.” In Edward F. ShefWeld and International Council for Educational Development, eds., Systems of Higher Education: Canada, 1-35. New York: International Council for Educational Development. Simon Fraser University (SFU). 1988-2003. Simon Fraser University Policy and Procedure. 26 April (revision date, 22 January 1991; revision date, 29 January 1998; and revision date, 4 April 2003), Simon Fraser University Archives. –. 1992-94. Harassment OfWce Report: October 1992-April 1994, Simon Fraser University Archives. –. 1998-2000. Simon Fraser Harassment Resolution OfWce Annual Reports, 1998, 1999, and 2000, Simon Fraser University Archives. –. 2003. Simon Fraser Human Rights OfWce: 2003 Annual Report, Simon Fraser University Archives. “Sisterhood: A Special Edition of Ubyssey.” 1971. Ubyssey, 5 February. Sobrino, Miriam. 1983. Letter to Editor. Ubyssey, 8 February, 4. “Speakeasy.” 1972. Ubyssey, 24 November, 2. “SRA Backs Womens Committee.” 1976. Ubyssey, 5 November, 2. Stephenson, MaryLee. 1971. “Women’s Lib on Campus.” Ubyssey, 5 February, 13. Stern, Leonard. 1999. “The Stalking of Liam Donnelly: Part One: How a 20 Year Old Biology Student, Armed with Lurid Tales of Sexual Assault, Sank a University Swimming Coach’s Career.” Ottawa Citizen, 5 December, D3. Sullivan, Paul. 2000. “The Education of Don Dutton.” Globe and Mail, 19 January, A15. Summerhill, Richard. 1980. “UBC Gay People Impressively Came of Age This Year.” Ubyssey, 3 April, 23. Todd, Douglas. 1999a. “Human Rights Remedies Create a New Round of Abuse.” Vancouver Sun, 13 November, A19. –. 1999b. “UBC Sex Case Triggers Call to Rein in Rights Tribunal.” Vancouver Sun, 29 October, A1. University of British Columbia (UBC). 1998. Equity OfWce Annual Reports 1996, 1997, 1998, 1999, and 2000, http://.equity.ubc.ca/stats/reports.htm. UBC Board of Governors. 1995. Policy on Discrimination and Harassment. 26 January. –. 1998. Policy and Procedures on Sexual Harassment. 3 March. UBC Women’s Students’ OfWce. 1980. “EUS Hostility Not Fun.” Ubyssey, 28 February, 5. University of Victoria. 1994-7. Anti-Harassment OfWce Annual Reports: June 1994-June 1995; June 1995-June 1996; and June 1996-June 1997, http://web.uvic.ca/prdh/reports/. –. 1997-2001. OfWce for the Prevention of Discrimination and Harassment: Annual Reports. July 1997-June 1998; July 1998-June 1999; July 1999-2000; and July 2000-2001, http:// web.uvic.ca/prdh/reports/index.htm. –. 1998. Discrimination and Anti-Harassment Working Group, Minutes. 5 March, http:// web.uvic.ca/prdh/reports/index.htm. –. 1999. Discrimination and Anti-Harassment Working Group, Minutes. 26 May, http:// web.uvic.ca/prdh/reports. –. 2000. Discrimination and Anti-Harassment Working Group, Minutes. 27 September, http:// web.uvic.ca/prdh/reports. –. 2002. Discrimination and Harassment Policy and Procedures. 25 November, http:// web.uvic.ca/prdh/reports. Vickers, Jill, and June Adam. 1977. But Can You Type? Canadian Universities and the Status of Women. Canadian Association of University Teachers Series. Toronto: Clarke Irwin.


Walker, Heather. 1977. “Women’s Studies Ignored – Students.” Ubyssey, 17 March, 1 and 7. Waters, Fran, and Loralee Parker. 1976. “Women Need a Room at UBC.” 5 November, 5. Weir, Lorna. 1995. “PC Then and Now: Re-Signifying Political Correctness.” In Stephen Richer and Lorna Weir, eds., Beyond Political Correctness: Toward the Inclusive University, 51-87. Toronto: University of Toronto Press. Wente, Margaret. 1999. “The Professor, the Student and the Human Rights Police.” Globe and Mail, 30 October, A25. Wente, Margaret, and Paul Minvielle. 1997. “Sexual Harassment.” Times Colonist (Victoria), 15 July, 1. West Coast Legal Education and Action Fund. 2002. Letter to Honourable Geoffrey Plant, Attorney-General of British Columbia, 11 September. Wetstein, Berel. 1982. “Report on Sexual Harassment Done.” Excalibur, 4 February, 1. Wheelwright, Julie. 1979. “Special Date Marks Women’s Struggle.” Ubyssey, 19 October, 1. –. 1982. “Factory Shut, EUS Kills Rag.” Ubyssey, 4 March, 1 and 2. Wiegers, Wanda. 1992. “Feminist Protest and the Regulation of Misogynist Speech: A Case Study of Saskatchewan Human Rights Commission v. Engineering Students’ Society.” Ottawa Law Review 24(2): 363-435. Wild, Nettie. 1971. “Two Escaped from a Stereotype ...” Ubyssey, 5 February, 2. “Women.” 1971. Ubyssey, 28 September, 4. Women’s Action Group of University of British Columbia and Shelagh Day. 1973. Report on the Status of Women at University of British Columbia. Vancouver: Talon Books. “Women’s Complaint Centre.” Ubyssey, 24 November, 5. “Women’s Grievance Commission.” 1972. Ubyssey, 25 February, 2. “Women’s Group Requests Centre for Rape Victims.” 1978. Ubyssey, 17 February, 3. “Women’s Hearings to Start.” 1972. Ubyssey, 11 February, 6. Wood, Chris. 1997. “Campus ConWdential.” Maclean’s 110(45): 24. Zalk, Sue Rosenberg. 1990. “Men in the Academy: A Psychological ProWle of Harassment.” In Michele A. Paludi, ed., Ivory Power: Sexual Harassment on Campus, 141-75. Albany, NY: State University of New York Press. Cases Cited Alexander v. Yale University, 631 F.2d 178 (2nd Cir.1980) and 459 F. Supp. 1 (D. Conn.). B.C. v. B.C.G.E.U., [1993] 3 S.C.R. 3. Dutton v. British Columbia (Human Rights Tribunal), [2001] B.C.J. No. 1794 (B.C.S.C.) (QL). Jantzen v. Platy Enterprises, [1989] 10 C.H.R.R. D/6205 (S.C.C.). Mahmoodi v. University of British Columbia and Dr. Donald Dutton, [1999] B.C.H.R.T.D. No. 52 (QL). Robichaud v. R., [1987] 8 C.H.R.R. D/4326 (S.C.C.).

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Part 3 Familial Identities and Neo-Liberal Reform

7 Feminism, Fathers’ Rights, and Family Catastrophes: Parliamentary Discourse on Post-Separation Parenting, 1966-2003 Susan B. Boyd and Claire F.L. Young

The fathers’ rights movement is a central feature of the anti-feminist men’s movement (Menzies, this volume). The stock story underlying most fathers’ rights interventions in the hotly contested Welds of child custody and support is that feminists have controlled the law reform agenda and legal change has gone too far in responding to feminist demands (Boyd 2004a). Fathers’ rightists typically believe that reforms in this Weld reXect a feminist conspiracy and disadvantage fathers and children (Long 2000). This chapter challenges this backlash narrative by asking whether family law reform over the last thirty years has been unduly inXuenced by feminists; what role fathers’ rights discourse has played; have their concerns been ignored in favour of a feminist agenda; or have they inXuenced the conditions under which legal change is considered? We address these questions by analyzing parliamentary discourses on post-separation parenting laws from 1966, when the Wrst federal Divorce Act began to be discussed, to 2003, when signiWcant changes to the child custody provisions of the act were debated. We also consider an apparent contradiction between governmental and parliamentary discourses. Towards the end of the twentieth century, feminist voices and gender issues became invisible in government documents related to child custody and child support law reform (for example, Department of Justice 2001). These documents, which reXect the views of government bureaucrats in the Department of Justice, became increasingly gender neutral in their treatment of issues that feminists argue are highly gendered, such as children’s care and spousal abuse. Formal equality analysis prevailed in government documents rather than an equality analysis grounded in the ongoing sexual division of labour. In contrast, parliamentary debates increasingly reXected the so-called gender wars that accelerated near the end of the 1990s. One female MP pointed to problems encountered by women and children: “We must help the children’s primary caregivers so that they can ensure continuous care

Feminism, Fathers’ Rights, and Family Catastrophes

and security to the best of their ability, while recognizing the difWculties they – 90% of those who provide care to children are mothers – may be faced with, including Wnancial difWculties, lack of access to legal advice and their ex-husband’s violent behaviour” (Commons 2003, 52:3145 (Diane Bourgeois, BQ)). In contrast, a male MP suggested that fathers were viliWed: “I will not accept for a moment, as is generally thought across Canada, that all these men are deadbeat dads ... We seem to say at the present time that all divorces are the fault of the men ... Hundreds of young men under 40 escape by running away, by taking on new names, and some by committing suicide ... Watch the tears roll down his face because he cannot meet those obligations, and he was never credited for it as a tax deduction in all those years” (Commons 2001, 61:3972-3 (Roy Bailey, CA)). We argue in this chapter that the parliamentary debates were not merely of symbolic importance. Rather, they provided a forum for “dissidents” such as fathers’ rights advocates to raise issues and propose private members’ bills, albeit few that passed. The governmental embrace of gender neutrality seems to have constituted a response to the gender wars perceived to be raging between those supporting mothers and those supporting fathers – an inadequate response from a feminist perspective. We also argue that the gender wars metaphor is too simplistic (Bala 1999). Other important factors revealed in the Hansards and the law reform process include the ongoing strength of familial ideology and its relationship to the women’s and fathers’ rights movements as well as neo-liberalism and neo-conservatism. Feminists and women who challenge traditional norms of womanhood and motherhood and who seek equality for women have long been accused of being anti-family and are often held responsible for family catastrophes and for excessive strains on the public purse. In terms of familial ideology, efforts have been made throughout history to contain feminists and women who resist traditional deWnitions of “wife” and “mother” (Walby 1993, 84; see also Chafetz and Dworkin 1987; Faludi 1991; Oakley and Mitchell 1997). However, motherhood is now not the only concept circulating in family policy debates. At the same time that women have been subject to pressures to (re)-assume their proper roles in the heterosexual nuclear family, increasing attention has been paid to fatherhood (Collier 2001). A vast literature has emerged on “fatherless America” (for example, Blankenhorn 1995; Popenoe 1996). Paternal presence has been constructed as essential to the health and welfare of children and families and father absence as generating problems such as criminality. As Judith Stacey (1998, 54) has said, the “two parental crises discourses are Xourishing in tandem.” Mothers are now expected to provide fathers for children, not only by marrying but also by providing generous contact even when they live separately from the father (Bourque 1995; Boyd 2003b; Cohen and Gershbain 2001), have not co-parented

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while cohabiting with the father (Lessard 2004), or are co-parenting with a lesbian partner (Kelly 2004). This effort to “Wnd fathers” for children accords with the neo-liberal trend to pin economic responsibility for children on the family, which was reXected in the 1996 Canadian child support law reforms. These changes were widely perceived to beneWt custodial mothers and tighten up the Wnancial obligations of fathers. The interests of the state in privatizing social costs thus coalesced with the arguments that many women’s groups made about the economic needs of women and children. However, the emphasis on Wnding fathers for children also resonates with the neoconservative concern with bolstering a traditional deWnition of marriage, family, and gender roles. Anxiety concerning challenges to gender roles in the family and in society generally has become acute over the past decade, is reXected in parliamentary debates, and has probably been exacerbated by the neo-liberal emphasis on privatizing economic responsibility for children. It is no accident that fathers’ rights discourse was heightened around the time of the introduction of the child support reforms. The reforms have a disproportionately heavy impact on low-income fathers, although it remains unclear whether those fathers form the basis of the fathers’ rights movement. Before analyzing the parliamentary debates in detail, we Wrst outline the trajectory of women’s and fathers’ rights advocacy at parliamentary committees. Setting the Scene: Feminism and Fathers’ Rights Early submissions by six women’s groups1 during the late 1960s when the Wrst federal Divorce Act was introduced were quite neutral in tone, often articulating the concerns of both men and women. Liberal feminist optimism dominated, with the Congress of Canadian Women suggesting that discrimination in education must be removed so that “the modern woman may play the triple role of worker, wife and mother” (Special Joint Committee 1966-67, 7:312) and that achieving equality between women and men would lead to fewer divorces. Groups representing single parents made the strongest statements about the plight of deserted wives but also noted that “the predicament of a deserted husband is probably equally intense” (Special Joint Committee 1966-67, 16:847). Men’s groups were not in evidence. Debates on custody and access became more heated in the mid-1980s when major changes to the Divorce Act were considered. The change in tone was generated mainly by the emerging fathers’ rights advocates, who were often angry and hostile. As we discuss elsewhere, they Wrst portrayed men as victims who were discriminated against by law and government policy (Boyd and Young 2002, 56-62). Second, judges were said to be routinely biased against men. Third, it was suggested that women received


custody as a matter of right. Fourth, mothers were portrayed as selWsh and unwilling to share custody with, or give access to, fathers. Much material was based on personal experience and anecdotes. The remedies sought were a joint custody presumption as well as a “friendly parent” rule (favouring the parent that was more willing to give access to the other), mandatory mediation, and restrictions on the mobility of custodial parents. The two women’s groups that appeared before the Standing Committee on Justice and Legal Affairs in the 1980s took a cautious approach. The optimism of liberal feminists was beginning to be replaced by a substantive equality approach, which eschewed a strict gender-neutral, equal treatment approach to men and women in favour of trying to address the continuing sexual division of labour, as well as other social and economic disadvantages that women and mothers experience (Hough 1994). The Canadian Advisory Council on the Status of Women (CACSW) pointed out that many joint legal custody arrangements resulted in the mother carrying the major day-to-day responsibility for children, while, at the same time, being subject to continuing control and interference by her ex-husband (Standing Committee 1985, 37A:16). Both the CACSW and the National Action Committee on the Status of Women (NAC) argued against a joint custody presumption, but they nevertheless emphasized the need for children to have contact with both parents, and the NAC recommended generous access for fathers (Standing Committee 1985, 37:5; 37A:14; 38: 10-11; Fassell and Majury 1987). Overall, the CACSW adhered to the mainstream view that the sole test for determining custody and access should be the best interests of the child.2 After the 1980s, women’s groups developed a more sustained substantive equality approach to family law reform (Laing 1999). Many suggested that caregiving relationships between children and their primary caregivers should be central to the best interests test (for example, Ad Hoc Committee on Custody and Access 1998; Ontario Women’s Network on Custody and Access 2001). These groups often drew on social science research to point out that mothers still carried the primary responsibility for children. Most also called attention to male violence against women and its impact on child custody dynamics, suggesting that abused women and their children are put at risk by legal measures such as joint custody or maximum contact rules that encourage shared parenting without caveats related to safety. Women’s groups did not, however, argue generally against contact between children and fathers, reXecting the fact that even many abused women encourage contact, provided it is safe and positive for the child (Neilson 2000, 142-43). The groups similarly emphasized that contact must occur in conditions that make it safe for children and their mothers. Overall, women’s groups did not present a “man-hating” version of feminism, as fathers’ rightists sometimes suggest. Indeed, women’s groups rarely referred

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explicitly to feminism, adopting a cautious, somewhat defensive stance in the face of the challenges to feminism being voiced by fathers’ rights advocates. In contrast, modern fathers’ rights discourse, while not uniform, often embodied both a caricature and a critique of feminist engagement with law and public policy (Boyd 2004a) and a demonizing of mothers (Boyd 2004b). Fathers’ rightists say that mothers have captured the sympathy of key actors in the legal system such as judges, that mothers are assumed to always be truthful, and that children suffer from being “fatherless.” They suggest that judges inappropriately assume that mothers are better parents and that a maternal presumption operates in the courts (for evidence to the contrary, see McBean 1987, 184; Canada 2002, 16). They allege that mothers lie about paternal abuse and are believed and that mothers block fathers’ access to children for no good reason. Increasingly, fathers’ rightists have suggested that the extent and nature of male violence against women is overstated and that women are as capable as men of perpetrating abuse (see DeKeseredy 1999; Neilson 2004). They also argue that child support orders against fathers are unfair and/or excessive, leading to dire results such as suicide. Their critique of child support law resonates superWcially with that of some feminists (for example, Mossman 1997; Robson 2004), who point to the inadequacy of child support law as a remedy for economic inequality. Yet few fathers’ rights advocates adopt a feminist critique of privatized remedies, instead arguing that mothers should be held more responsible for child support or that paternal custody would be more Wnancially efWcient (Boyd 2004b, 66-68). Overall, fathers’ rights discourse evidences anxiety about the loss of power and control that many men believe they have experienced in recent years. The remedy typically proposed by most fathers’ rights advocates is that joint custody or shared parenting be the normative order. Inferentially, they suggest that the family be returned to the greatest extent possible to its traditional patriarchal, heterosexual, nuclear form (Bourque 1995). Some even suggest that introducing a joint custody norm might deter divorce, presumably because mothers would not seek divorce if they knew they would have to share custody anyway (Special Joint Committee 1998, Mtg. 20 (Equitable Child Maintenance and Access Society, Edmonton Chapter)). The joint custody norm tends to re-inscribe the mother as caregiver and the father as authority Wgure/decision maker (Delorey 1989). Although fathers’ rights advocates vary on this point, with some pushing for joint care as well as legal custody, their main claim is for joint legal custody. In other words, they argue for joint decision making rather than sharing the responsibility for the child. Having outlined the main arguments of women’s groups and fathers’ rightists, we now explore their impact by analyzing over three decades of


parliamentary debates in Canada. Our research challenges the fathers’ rights claim that law reform has been captured by feminists or that fathers’ rightists have had no impact. The question is how advocacy by both social movements has been absorbed into the law reform process. Parliamentary Discourses From Blaming the System to Blaming Women: The 1960s to the 1980s Default of Wnancial support orders was a key issue in the debates from 1966 to 1986, which saw the enactment of enforcement legislation (Family Orders and Agreements Enforcement Assistance Act 1985) as well as a “new” Divorce Act (1985). Two key themes emerged. First, the concern was that failure to pay support by the private sphere (ex-husbands and fathers) meant that the Wnancial burden would fall on the public welfare system: “The state then, as well as the person being maintained by the state, is directly interested in enforcing the maintenance order” (Commons 1976, 2:1442 (Landers, Lib.)). The enhanced enforcement of support orders beneWted some women but simultaneously answered other political agendas such as the privatization of economic responsibilities for the economic well-being of citizens (Mossman 1994, 29). This neo-liberal agenda gained visibility during the 1980s, especially after the Progressive Conservative government gained power in 1984 and moved towards a policy of deWcit elimination and debt reduction (Fudge and Cossman 2002, 14). Second, the reasons given in committee and parliamentary debates for men not paying support shifted signiWcantly. Prior to the mid 1980s, men’s lack of funds was often cited as the cause of non-payment (Commons 1981, 7:7093 (Irwin, Lib.)). As well, the legal system was blamed for fostering alienation and creating a climate of hostility and acrimony (Commons 1976, 2:1440 (Huntington, Progressive Conservative). By the mid 1980s, the dominant reason given for men’s failure to pay was that judges and mothers denied them adequate contact with their children. This new rationale was linked to the emerging focus on fathers in custody and access law (Drakich 1989). In both the 1970s and 1980s, men were viewed as victims, but ex-wives were increasingly blamed, reXecting the increased inXuence of fathers’ rightists. It was mainly Liberal members of parliament (MPs) who took up this fathers’ rights position that child custody law was biased in favour of women in both the Standing Committee on Justice and Legal Affairs and the House of Commons (for example, Standing Committee 1985, 49:55, 50:10; Commons 1986, 7:10056-66). In the House of Commons, Sheila Finestone asked: “How can we expect fathers to pay much attention to their children if they are being blocked consistently over a long period of time?”

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(Commons 1986, 7:10065 (Lib.)). These MPs took a formalistic approach to equality and discrimination, failing to distinguish between the proposition that men clearly are capable of caring for children and the reality that few do so. Both Finestone and Sheila Copps objected to the suggestion that a child’s age and relationship with its mother are important factors (Commons 1986, 7:10059-60). Copps suggested that just as women were discriminated against in the economic realm, so courts often discriminated against men in custody cases. ReXecting this classically liberal approach, John Nunziata suggested that a presumption of joint custody be enshrined in the law (Commons 1986, 7:10066 (Lib.)). Fathers’ rights advocacy had some impact on the Wnal divorce bill, although their demands were not answered in full. Instead of a presumption of joint custody, a maximum contact principle was adopted, and it was clariWed that judges could make joint custody orders. A version of the “friendly parent” rule was included to add a forceful incentive to the facilitation of access (Standing Committee 1985, 50:22). Mandatory mediation was not introduced, but lawyers were directed to discuss with their divorcing clients the advisability of negotiating support and custody and to inform them of mediation facilities. Although the Standing Committee on Justice and Legal Affairs (1985, 49:47-48) had adopted the fathers’ rights position on mobility of custodial parents, judges were merely permitted, not obliged, to include in orders a requirement that the custodial parent give thirty days notice of any intention to change a child’s residence. To the extent that women’s groups had recommended that the best interests of children be prioritized, the new legislation reXected their position. Yet this was far from a radical stance that favoured women or even reXected emerging feminist analysis, which emphasized that children’s best interests are imbricated with their caregiver’s welfare. After the Xurry of activity revolving around the 1985 Divorce Act, which was marked by an enhanced invocation of the rights of non-custodial parents and the blaming of custodial mothers, little parliamentary debate on post-separation parenting occurred until the early 1990s. Feminist scholarly literature on child custody law did proliferate, highlighting the ongoing nature of women’s inequality in the family, including their continuing responsibility for caregiving labour and the apparent inability of the legal system to recognize this labour in a period characterized by the rise of the fathers’ rights movement, joint custody, and mediation (Bailey 1989, 61-94; Boyd 1989; Lamb 1985, 1987; and McBean 1987, 184). The new liberal individualist discourses associated with equality rights in the Canadian Charter of Rights and Freedoms rendered custody disputes more fraught for women, in part because fathers’ rights advocates could and did invoke equality rights discourse and because joint custody seemed to represent a remedy embodying gender equality between parents (Delorey


1989; Boyd 2003b, chapter 6; Gordon 1989). Little academic literature emerged from a fathers’ rights perspective, although Germain Dulac (1989) offered a critical analysis of the fathers’ rights lobby. In 1989, litigation that inXuenced child support and child custody debates during the 1990s was initiated. Suzanne Thibaudeau did not include the child support received from her ex-husband in her income for tax purposes, despite the Income Tax Act requirement to do so. Instead, she included the income in tax returns Wled on behalf of her children, and no tax was payable because they had so little income. Thibaudeau’s act generated a Charter challenge on behalf of custodial parents to the tax treatment of child support payments. Her case sparked debate in Parliament and ultimately shaped discussions about child support and also child custody law (Quaile 2002; and Thibaudeau v. M.N.R. 1994). The Early 1990s: Paternalistic Discourses House of Commons debates at the beginning of the 1990s saw a muting of the mother-blaming discourses and rights-oriented claims on behalf of fathers that had characterized the mid-1980s debates.3 These discourses later re-emerged with a vengeance, but, at the time, sympathy for the position of divorced mothers was manifested, coupled with condemnation of fathers who neglected their economic responsibilities. These latter discourses were paternalistic and premised on the privatization of economic responsibility, as opposed to being grounded in a strong vision of women’s equality. Still, they may have provided fodder for the fathers’ rights lobby, to the extent that men were criticized for shirking their responsibilities. During this period, family law reform loomed large on the federal government agenda. In 1991, the minister of justice, Kim Campbell, announced a comprehensive review of family law, which was planned in stages over several years, and papers on child support by the Federal/Provincial/Territorial Family Law Committee began to be published (for example, Federal/ Provincial/Territorial Family Law Committee 1991, 1992, 1995). The Wrst phase of the review involved Bill C-79, An Act to Amend the Divorce Act and the Family Order and Agreements Enforcement Assistance Act. This bill became law in 1993, strengthening the role of the federal government in addressing the still serious level of default in payment of support orders. In other words, the state’s role in reinforcing privatized economic remedies was enhanced. The debates in the House of Commons reveal a sympathetic but paternalistic focus by members of all parties (mostly men) who spoke about the difWculties faced by single mothers and their children. As well, for the Wrst time, the role of the income tax system in relation to support payments was raised seriously within parliamentary discussion. MPs pointed to low child support awards and linked women’s economic inequality to children’s suffering, which, in turn, might lead to delinquency

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(Commons 1992, 9:12081 and 12083; 1993, 12:15868 (MacLellan, Lib.)). Russell MacLellan pointed out that “most mother-led post-divorce families live in poverty” and referred to the “misery and deprivation” that divorced women with children experienced (Commons 1992, 9:12081 (Lib.)). Citing statistics showing that over 97 percent of payors are men, Jack Whittaker noted that there was no need to use gender neutral terms such as payer and recipient, “[w]hen we know that we are talking about women and children doing without because men do not want to make payments and have skipped out on their responsibility to their children and their former spouses” (Commons 1992, 9:12084 (New Democratic Party); see also Commons 1993, 12:15867 (MacLellan, Lib.)). Rob Nicholson referred to a male-dominated legal system that had generated the problems now encountered: “If for the last 125 years our system of law and government had been dominated by women, this would not be a problem and we would not need this legislation” (Commons 1993, 12:15866 (PC)). Other MPs noted that mothers’ lack of income might cause resentment, prompting them to throw roadblocks in the way of paternal access (Commons 1993, 12:15868 (MacLellan, Lib.)). This reference resonated with the 1980s fathers’ rights discourse, but blame was not cast on the mother. Rather MacLellan noted that “judges seemed to be unaware of the barriers to a woman becoming self-sufWcient if she is older, say in her forties” and applauded fathers who put children’s interests Wrst by fulWlling their Wnancial obligations, even if they did not see them (Commons 1993, 12:15869). At second reading, MacLellan had pointed to the gap between fathers’ rights rhetoric and reality, stating that ex-husbands and fathers “are not even beginning to meet the needs of the children they profess to care for” (Commons 1992, 9:12082).4 MacLellan also referred to the tax system, which allowed a man “to deduct his child support payments directly from the amount of tax he must pay,” whereas the mother had to pay tax on what she received. He suggested that “[t]he federal government actually subsidizes the life-style of the divorced man to a large extent” (Commons 1992, 9:12082): “In 1988 men deducted $1.3 billion from their income tax for child support payments and saved themselves $475 million in taxes. The government then collected about $275 million in taxes from the recipients of the support payments. That leaves what we could call a divorce subsidy of approximately $200 million. That $275 million, although lower than what the husbands would have paid, was really grinding down the single mothers with children who had to pay that amount of taxes” (Commons 1993, 12:15869). This point was also made by other MPs who argued for a fairer tax system and referred to Suzanne Thibaudeau’s case (Commons 1993, 12:15874, 15876, and 15886). The early 1990s quite likely reXected the most sympathetic treatment


of the economic plight of women and the most critical approach to men who failed to live up to their Wscal obligations. The discourse shifted towards privatized remedies of stepped up enforcement of child support, changes to the taxation system, and guidelines on child support to address low awards (Commons 1992, 9:12084 ( Jack Whittaker, NDP)). Some supported these measures by traditionalist discourses of men’s moral obligation to family, but others drew on a more feminist analysis of the impact of nonpayment of support on mothers and children. By 1997, as we shall see, all of the proposed measures were in place but the climate had changed. Fathers’ rights discourse became far more prominent, and government discourse began to retreat to the safety of gender neutrality. The Mid-1990s: Rising Politics of the Family Discourse began to shift towards a more highly charged politics of the family during the Wrst session of the thirty-Wfth Parliament (17 January 1994 to 2 February 1996) after the Progressive Conservative government was defeated in 1993 and the Liberal Party gained power. As Judy Fudge and Brenda Cossman (2002, 16) have said, “the [neo-liberal] market citizen is also an anxious citizen rocked by the speed of social change,” and “[m]oments of social transformation often produce moral panic and the nostalgic appeal to a purer and better past that is the stock-in-trade of social conservatives and family values movements.” Increased numbers of Reform Party MPs and the pro-family caucus of the Liberal Party created space for more overt statements about the need for government to protect and safeguard the traditional family against attacks by, for example, feminists and promoters of homosexual rights and interests (for example, Commons 1994, 93:5912 (Skoke, Lib.)). Reform Party MPs emerged as key spokespersons for grandparents’ rights5 and the traditional family. Private members’ bills dealing with matters such as grandparent rights and the protection of the nuclear family were introduced, none of which passed.6 An exchange between two Liberals marked one of the Wrst times that feminism was raised explicitly in the House of Commons in relation to family law reform. Roseanne Skoke criticized feminists for “their failure to recognize the importance of the role of women and motherhood within the traditional family unit” and for their “position that family is the initiator and cause of the inequity between men and women” (Commons 1995, 257:16394 (Lib.)). Mary Clancy responded: “On behalf of feminists across the country I resent the insinuation that we are not family oriented. Because we believe in gender equality, because we believe in freedom from fear and freedom from violence, because we believe in pay equity and employment equity, because we believe women hold up half the sky” (Commons 1995, 257:16396 (Lib.)). Both women reinforced profamily discourse despite their opposing positions.

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The plight of custodial mothers and the feminized nature of single parent poverty was commented on by some MPs, showing continuity with the early 1990s. Bloc Québécois members, now a presence in the House of Commons, often spoke eloquently about these problems7 as did numerous Liberals. The federal government’s appeal of Suzanne Thibaudeau’s tax win at the Federal Court of Appeal provided a catalyst (Commons 1994, 69:4278). Shortly after the Supreme Court of Canada reversed this win (Thibaudeau 1994), Liberal MP Beryl Gaffney called for repeal of the inclusion/deduction system requiring recipients of child support (mostly women) to include these amounts in their income and permitting payors (mostly men) a deduction. Gaffney did not argue that this issue was about women’s equality. Rather, she noted that in intact families, the support provided by a father for the children was not included in the wife’s income for the purposes of income tax nor was he given a deduction (Commons 1995, 269:17103). Some MPs continued to emphasize the drain on the public purse when child support orders are not obeyed,8 illustrating the neo-liberal emphasis on privatization that accelerated in the mid-1990s (Fudge and Cossman 2002, 15-16). Politics of the family began to be discussed much more pointedly by the second session of the thirty-Wfth Parliament (27 February 1996 to 25 April 1997). Once again, grandparents’ rights were raised (Commons 1996, 20:1173 ( Jennings, Ref.)), and a pro-family bill was introduced that would have made marriage counselling mandatory before divorce (Commons 1997, 147:9133-34). Heated debate concerning the deWnition of marriage arose in the context of Bill C-33, An Act to Amend the Canadian Human Rights Act, which added “sexual orientation” as a prohibited ground of discrimination (Commons 1996, 36:2104-31 and 2144-63). Tom Wappel introduced a bill that would have restricted marriages to those between one man and one woman (Commons 1996, 99:5609 (Lib.)). Fathers’ rights discourse and arguments entered the House of Commons debates largely via Reform Party MPs. Jay Hill introduced a private member’s bill to make joint custody automatic in the Divorce Act, justiWng this proposal by suggesting that the current regime was discriminatory against fathers (Commons 1996, 17:975 (Hill, Ref.)).9 Mother-blaming discourses re-emerged in 1996 as child custody came into focus again, and sympathy was expressed for divorced fathers who had been denied access to their children (Commons 1996, 80:5032-35 (Williams, Ref.); Commons 1996, 96:6076 (Hill, Ref.)). Ian McClelland stated that the “number one problem” that people had brought to him related to “paying maintenance and not having access to the children” (Commons 1997, 131:8126 (Ref.)). Arguments in favour of mediation as the preferred method of dispute resolution were also made (for example, Commons 1996, 25:1476, 78:490911 ( Jennings, Ref.), 80:5024 (Ablonczy, Ref.), 78:4952 (Benoit, Ref.)).


The primary catalyst for the heated defence of men’s rights was Bill C41, a federal initiative on child support launched after the Supreme Court of Canada denied Suzanne Thibaudeau’s tax challenge. Despite the court’s conclusion that the inclusion/deduction scheme did not violate the equality rights of custodial parents, the federal government eliminated the scheme. These amendments relieved custodial parents (mostly mothers) of the obligation to pay tax on child support payments, but it also removed the ability of payors of child support (mostly fathers) to deduct child support payments. The law reform package also strengthened enforcement measures and introduced child support guidelines that based payments on the payor’s income. Bill C-41 was introduced and defended by Liberal MPs in terms that linked women’s equality and children’s best interests, providing an element of truth in the fathers’ rights argument that the government was responding to the demands of the women’s movement. As Sheila Finestone said: “Finally, women raising their children on their own will not have to pay income tax on money intended for their children. Finally, they will receive equitable child support payments. Finally, they will have the assurance that payments will be on time. Finally too, their child tax beneWt will be doubled. These measures are the culmination of our government’s efforts in the best interests of children, and the long struggle for female equality” (Commons 1996, 8:422 (Lib.)). Several MPs referred to the continuing high rates of default in the payment of child support, noting that most defaulters were fathers and that the overwhelming majority of single parents were women, often living in poverty (Commons 1996, 80:5035 (Robert Nault, Lib.)).10 Antoine Dubé linked child poverty to women’s poverty: “One child in Wve is living under the poverty line. In 80 percent or more of cases, the children living in extreme poverty are in single parent families. In most cases – and this must be said, though as a man I do not want to start a war of the sexes over this – women are the single parents who have to provide for their children” (Commons 1997, 131:8124 (BQ); see also Commons 1997, 141:8794 (Gaffney, Lib.)). Dubé also noted, implicitly criticizing the fathers’ rights position, that sometimes fathers “may feel that since they did not obtain custody, or joint custody, they are justiWed in making their ex-wives suffer without realizing that the ones suffering the most are their children. And that is intolerable” (Commons 1996, 78:4930). Mary Clancy pointed to the fact that women can get to the point where it is not worth the emotional stress to go to court to enforce child support payments (Commons 1996, 78:4914 (Lib.)). This emphasis on women’s equality and its relationship to children’s interests was pointedly challenged by MPs operating from a more traditional “pro-family” stance. Reform Party members and at least one Liberal

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Party member argued that “the crisis of the family in Canada, particularly the breakdown of the traditional nuclear family, has been a major contributor to the poverty of women” because most arrangements give custody of children to women (Commons 1997, 141:8766-77 (Paul Szabo, Lib.)). This argument echoed some fathers’ rights arguments that the solution to post-divorce difWculties is to keep families together. Even more pointedly, Diane Ablonczy argued that the bill scapegoated men: “The changes make non-custodial parents, usually men, solely responsible for supporting children of divorce. The amounts these parents will be forced to pay will rise steeply and will have to be paid out of after tax dollars regardless of the Wnancial resources of the custodial parent. The bill [C-41] is absolutely silent on the equally important issue of the right of non-custodial parents to have access to their children, access that is critical to the emotional stability and well-being of Canadian children of divorce” (Commons 1997, 124:7708 (Ref.)). As during the debates over support enforcement in earlier decades, but in contrast to the early 1990s, some MPs pointed out that default in payments sometimes occurred because “the typical wage earner does not earn enough to support two households” (Commons 1996, 78:4910 ( Jennings, Ref.)). However, this point was now linked to a demonizing of mothers. Ian McClelland stated that fathers were required to pay support to a family where the custodial mother “has remarried and has a standard of living far beyond anything that the ex-husband has,” suggesting that mothers were living high and double-dipping whereas “the ex-husband has been out of house, home and hearth in order to support the new marriage” (Commons 1996, 78:4928 (Ref.)). Jay Hill suggested that custodial mothers squandered money on their own vices rather than on the child’s needs (Commons 1996, 80:5026 (Ref.)). Sharon Hayes noted that “courts overwhelmingly make men the non-custodial parent” and told of men who had gone bankrupt, some saying they were “contemplating suicide because their lives have been ruined by endless court battles launched to gain access to their children without avail” (Commons 1996, 78:4922 (Ref.)). Despite these dissenting voices, Bill C-41, An Act to Amend the Divorce Act (1997) passed the House of Commons relatively quickly. Cossman (2002, 190) argues that the neo-liberals, who were willing to be tough on “deadbeat dads” to force them to take Wnancial responsibility for their children, prevailed over social conservatives, who might prefer to prohibit divorce. Overall, public responsibility for children’s well-being was further diminished, and private obligations were reinforced (Mossman 1997). That said, the privatization agenda of neo-liberalism was relying on a traditional notion of the family as the “natural site of dependency” (Cossman 2002, 200). Bill C-41 ran into major opposition in the Senate, led by Senator Anne Cools, who was the leading spokesperson for the fathers’ rights position


(Cossman 2002, 196-99). Cools’s vote was crucial due to an equal number of Liberal and opposition members in the Senate. Senate hearings were charged, with suggestions that the Department of Justice permitted excessive inXuence by women’s groups (Standing Senate Committee 1996, 17). The suggested linkage between the government and feminism arguably prompted the government to drop references to women’s equality or feminism and to begin using gender-neutral language (for example, deadbeat parents) (Cossman 2002, 199). Eventually, a deal was struck whereby Bill C-41 was passed, but concessions were made to fathers’ rights. The government made it easier to reduce child support obligations under the shared parenting provisions by reducing the amount of time children have to spend with the payor before a departure is permitted from the guideline amount. The government also agreed to establish a committee to review custody and access law. This review was to provide a forum for fathers’ rights discourse (Bala 1999; Boyd 2004a; Diamond 1999; Laing 1999). The Rise of Shared Parenting:11 The Late 1990s In the late 1990s, fathers’ rights discourse increasingly permeated parliamentary debates, sometimes using liberal equality discourse but also invoking socially conservative images of family. During the Wrst session of the thirty-sixth Parliament (22 September 1997 to 18 September 1999), the Special Joint Committee of the Senate and the House of Commons (SJC) was appointed to examine custody and access arrangements after separation and divorce, with Senator Cools as a member (Commons 1997, 28:1586-1602, 32:1867-68). The SJC’s mandate referred explicitly to the assessment of the need for a more child-centred approach to family law policies and practices that would emphasize “joint parental responsibilities” and child-focused parenting arrangements based on children’s needs and best interests (Special Joint Committee 1998 [emphasis added]). The fathers’ rights argument for joint custody seemed to now have the government’s ear. Pro-father arguments became more sophisticated and gender speciWc. For instance, some MPs drew on Article 9 of the United Nations Convention on the Rights of the Child (1989), giving a child who is separated from a parent the right “to maintain personal relations and direct contact with both parents on a regular basis,” sometimes failing to add the qualiWer “except if it is contrary to the child’s best interests” (Commons 1997, 28:1597 (Diane St.-Jacques, PC)). Paul Forseth addressed the feminist critique of joint custody head on, referring to the “incredible” suggestion that “joint custody may simply perpetuate the inXuence and domination of men over the lives of women” (Commons 1997, 28:1590 (Ref.)). This reference was interesting because, to date, there had been little evidence of feminist analysis having an inXuence on MPs. As we have seen, the

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early 1990s discourse tended to be quite paternalistically sympathetic towards divorced mothers rather than adopting a feminist stance. Members operating from a fathers’ rights perspective were apparently responding to a perception that feminism was inXuencing government – no doubt because Bill C-41 on child support had passed and because of the paternalistic discourses that pinned blame on “deadbeat dads.” Socially conservative, pro-family discourse continued to circulate. The sympathetic discourse on single mothers was contested as Reform Party MPs especially suggested the problems encountered by children living in single parent homes could be dealt with by keeping families together. Paul Szabo introduced Bill C-218, which would have required marriage counselling before divorce (Commons 1997, 6:217 (Lib.)). And petitions were presented by Liberal, Reform, and Progressive Conservative MPs calling on Parliament to support Bill C-225, to specify that marriage could be entered into only as a union between one man and one woman (Commons 1998, 133:8861-70 (Lowther, Ref.; Wappel, Lib.; and MacKay, PC)). Most notably, fathers’ rights arguments on custody and access were explicitly introduced. First, it was suggested that there was systemic gender bias against fathers and in favour of mothers in relation to both child support and custody and access. Paul Forseth quoted a letter from a father referring to the child support reform package and saying that the “government has decided that I am really just a wallet for my kids – It seems to me that pressures have swung the pendulum all the way to the other side. I am now having to pay so much to my ex and Revenue Canada that I will no longer be able to visit with my children or have them come to stay with me” (Commons 1997, 28:1589 (Ref.); see also Commons 1997, 28:1597 (Williams, Ref.)). Second, Forseth suggested that mothers were unwilling to share children with fathers and that the use of false sexual abuse allegations in custodial disputes had become “epidemic” (Commons 1997, 28:1590). Third, another MP stated that mothers were abducting children to other countries, leaving fathers with no legal recourse (Commons 1997, 28:1598 (Grewal, Ref.)). Heterosexual Anxiety: Family Values and Nationhood at the Turn of the Century Fathers’ rights discourse in the second session of the thirty-sixth Parliament (12 October 1999 to 22 October 2000) was more clearly linked to arguments in favour of traditional, heterosexual deWnitions of family, which, in turn, were sometimes linked to notions of a strong nation. This shift was likely due to the introduction of Bill C-23, which enhanced equal treatment of same-sex and opposite-sex cohabitants and invoked anxiety about an erosion of the heterosexual norm (Young and Boyd, this volume). Such pro-family discourses emanated particularly, but not exclusively, from


the Canadian Alliance (formerly Reform) Party members (for example, Commons 2000, 49:3544 (Lowther, CA)). In debate about Bill C-23, the argument was made that family breakdown/divorce is generally a bad thing, especially for children. Eric Lowther suggested that fatherless girls were more likely to get into trouble (Commons 2000, 49:3541 (CA)). Measures encouraging families to stay together emerged again when Paul Szabo introduced another Bill (C-235) requiring marriage counselling before divorce. Szabo stated that “divorce is child abuse” and promoted children’s rights to a continuing relationship and consistent contact with both parents (Commons 1999, 37:2713-15 (Lib.)). In debate on both bills, some MPs explicitly linked strong homes, families, and values with a strong nation (Commons 2000, 77:5576-77 (Breitkreuz, CA); see also Commons 1999, 37:2715 (Grewal, Ref.), 37:2713-15 (Szabo, Lib.)). As well, in response to a Bloc Québécois motion to end poverty and violence against women, Liberal Paul Szabo linked the problem of children living with lone parents in poverty to family breakdown (Commons 2000, 129:9089-90). The invocation of the traditional family as a remedy did not go completely unchallenged, with some MPs cautioning that a child’s best interests are not always served by preserving the traditional family unit (Commons 2000, 83:5994 (Harb, Lib.)). Nevertheless, fathers’ rights discourse was pressed forward by several MPs from most parties, often invoking anecdotes or petitions about grandparents or parents seeking access (Commons 2000, 77:5600 (Mills, CA), 130:9144 (Strahl, CA), 76:5529 (Harb, Lib.), 92:6507 (Adams, Lib.)). John Solomon presented a petition for mandatory equal shared parenting as the starting point after divorce (Commons 1999, 22:1382 (NDP)), and Rahim Jaffer presented a petition for legislation incorporating the rights of children and principles of parental equality (Commons 2000, 86:6154 (CA)). Jay Hill moved for leave to introduce Bill C-304, which would have introduced automatic joint custody unless evidence showed it would not be in the child’s best interests (Commons 1999, 18:1085-86 (Ref.)). Emotionally charged references were made to male suicide prompted by excessive child support orders (Commons 2000, 77:5600 (Mills, CA), 76:5516 (Gallaway, Lib.)) and to men being “caught in the jaws of the divorce industry” (Commons 2000, 75:5468 (Derrek Konrad, CA)). The difWculty that parents and grandparents experienced in gaining access to children was described as “a crime in itself with which the government has failed to deal” (Commons 2000, 77:5600 (Bob Mills, CA)). Chuck Strahl spoke passionately about a non-custodial father in his riding, implying suicide might result (Commons 2000, 93:6576 (CA)). These dramatic suggestions drew on the story of Darrin White, a father who committed suicide on 7 April 2000 and quickly became a “poster boy” for fathers’ rights advocates who claimed the family law system had victimized him (Commons 2002,

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176:10862 (Chuck Strahl, CA)). In fact, White took most of the funds from the joint account with his wife, largely failed to support his children, and was charged with assault (Gordon 2000; Matas 2000). Yet stories of male victimization by the system resonated in part because privatization of economic responsibility had a harsh impact on some men materially and ideologically (Harvie 2002-3). During this session generally, several MPs pointedly challenged feminism, reXecting a sense that changing norms threatened traditional family values and gender roles. Most notably, Reed Elley explicitly linked the feminist movement with stridency, sexual identity crises and a “blurring of the sexes,” and a rise of “militant homosexuality” (Commons 2000, 82:5878-79 (CA)). Deborah Grey questioned the minister for the status of women about insufWcient government funding for the conservative group Realistic, Equal, Active for Life (REAL) Women and called for funding for men (Commons 2000, 129:9060 and 9063-64 (CA)). These comments echoed fathers’ rights arguments that feminist groups obtain disproportionate amounts of government funding, allowing them to exert excessive inXuence over the public and government (Boyd 2004a). Contradictory Bills? Joint Custody versus Lisa’s Law The government was called on its failure to act on the recommendations of the SJC, which the fathers’ rightists supported, during the Wrst session of the thirty-seventh Parliament (29 January 2001 to 16 September 2002), and a private member’s motion called for immediate action (Commons 2002, 176:10862 (Strahl, CA); see also Bill C-469 on shared parenting: Commons 2002, 196:11997 ( J. Hill, CA)). Several MPs speaking from a fathers’ rights stance began to use the language of “responsibility” rather than “rights.” For instance, while referring to the SJC’s recommendation “for the rejection of the tender years doctrine under which judges routinely award custody of pre-adolescent children to the mother,” Chuck Strahl said: “Responsibility should not be gender speciWc. It should be shared. Both parents are necessary for the proper development and security of their children” (Commons 2002, 176:10862 (CA)). Once again, allusions were made to men being driven to desperate acts such as suicide after repeatedly being denied visitation rights by vindictive spouses (for example, Commons 2002, 176:10862 (Spencer, CA, and Greg Thompson, PC); 2001, 61:3972-73 (Bailey, CA); 2001, 20:1126-27 (Borotsik, PC)), and the ( heterosexual) family was asserted as the basic foundation of society and nation (Commons 2002, 147:9140 (Larry Spencer, CA)). The most interesting contradiction in this session, however, was between the proposal to introduce a joint custody norm into the Divorce Act (Bill C-237) and the “Lisa’s Law” proposal to restrict access to children by parents imprisoned for an offence of which the child was the victim or for


certain sex offences (Bill C-400). Proponents of joint custody lauded the notion of joint parental authority and the beneWts to children of maintaining relationships with both parents, whereas proponents of Lisa’s Law emphasized that custodial parents must have the authority to protect their children from harm, even if the result is that the other parent may not see that child. Larry Spencer’s speech in support of joint custody (Commons 2001, 20:1127-28 (CA)) eloquently invoked classic fathers’ rights “backlash” arguments. Spencer complained that judges assume that the female spouse is the better parent, that children prefer to be with their mother, and that “the mother is always the one who is telling the truth.” He asserted that the nature and extent of male violence against women has been over-stated and that women are just as capable of perpetrating abuse. He also stated that many fathers “are being asked to pay support beyond even their earnings,” implying that this responsibility towards their children imposed a burden that could be compared to the physical and psychological abuse suffered by women. Spencer concluded that “every child in Canada deserves an equal right to two parents, not just one,” invoking a dual parenting model that marginalizes non-traditional family forms, including those that are non-heterosexual (because he quite clearly means two parents of opposite sexes), lone parent, and extended. His remarks resonated with the fathers’ rights endorsement of a traditional model of parenting, which gives special responsibility to mothers but preserves a symbolic, authoritative role for fathers. In stark contrast stood the discourse surrounding Lisa’s Law. Lisa Dillman had been forced by a court order to take her two young daughters to visit their father, a doctor serving a six-year prison sentence for sexually assaulting both a former patient and his stepdaughter. A public outcry arose, and Dillman’s MP Bob Mills (CA) introduced a private member’s bill intended to prevent similar situations. Second reading speeches were emotive, including references to pedophilia and children’s vulnerability (Commons 2002, 184:11329-30 (Skelton, CA)). Dillman’s circumstances were painted sympathetically, in contrast to earlier portrayals of women as alimony drones (Commons 2002, 184:11325-27 (Mills, CA)). A romantic notion of maternal instinct was invoked, in contrast to the demonizing of mothers who restrict access: “A mother’s strongest instinct is to protect her children. To be ordered to put one’s children in harm’s way, to subject them to an environment that is not in their best interests would be horriWc” (Commons 2002, 184:11329-30 (Skelton, CA)). A discourse of protection and paternalism dominated in which the father and the divorce system were viliWed. Both the bad behaviour of the father and the judiciary’s endorsement of paternal rights to access in the face of it were, however, painted as exceptions. Hopefully, this father’s highly problematic acts

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are indeed rare, but the extent of sexual abuse is arguably underestimated, and, to that extent, little comfort can be drawn from constructing abusers as rare monsters. MPs from all major parties appeared comfortable in supporting the restriction of paternal rights to contact in such cases, on an arguably mistaken assumption that cases of abuse are easily identiWable and carved out as exceptions to otherwise normative joint custody or access awards. Neither Lisa’s Law nor Bill C-237 passed, as is the fate of most private members’ bills. Of the MPs who spoke to the joint custody bill at second reading, only those from the Progressive Conservatives and the Canadian Alliance supported it (Commons 2001, 20:1121-29). Liberal and Bloc Québécois MPs noted that this bill effectively created a legal presumption that went against the need to evaluate children’s best interests in each case and that it would heighten both conXict and litigation between divorcing parties (Commons 2001, 20:1126). In the only reference to consultation with women, Réal Ménard said he had consulted with his colleagues, “particularly the women in our caucus since they carry a lot of weight within the Bloc Québécois. They reminded me that presumption of shared custody is not a good thing per se unless both parents have clearly indicated that this is what they want” (Commons, 2001, 20:1125 (BQ)). Most other MPs rationalized their position by reference to more neutral sources such as the SJC, which had fallen just short of recommending a joint custody presumption. The parliamentary secretary to the minister of justice and the attorney general, John Maloney, raised questions about the potentially dangerous implications of joint legal custody in high conXict situations, which could be contrary to children’s best interests. He referred to the government’s strategy for family law reform, “which rejects the idea that a one size Wts all approach may be applied to all families experiencing separation and divorce” (Commons 2001, 20:1122 (Lib.) [emphasis added]). This one-size-does-not-Wt-all approach dominated the next session and became the government’s compromise mechanism for avoiding the appearance of bowing to the demands of either fathers’ rights or women’s advocates. Finding a “Middle” Ground: One Size Does Not Fit All (Bill C-22) The emotional pitch of debates about “family” was heightened in the second session of the thirty-seventh Parliament (30 September 2002 to 12 November 2003), which was a key moment in relation to custody and access law reform. Larry Spencer referred to “the awful tragedy that is imposed upon fatherless homes where there is only one parent” (Commons 2003, 52:3123 (CA); see also Commons 2003, 64:3798 (Obhrai, CA), 47:2772 (Vellacott, CA)). Although private members’ bills were again introduced on shared parenting (Bill C-245) and grandparents’ rights (Bill C-366 and Bill C-294), the debate crystallized around the government’s


introduction and second reading of Bill C-22, An Act to Amend the Divorce Act. This long-awaited legislative response to the 1998 SJC report was couched as part of a larger initiative to create a child-centred family justice system. Women’s equality was not part of the government discussion, as it had been when the child support package was introduced, nor were fathers’ rights. Bill C-22 proposed to eliminate the language of “custody” and “access,” replacing it with parenting orders for the “exercise of parental responsibilities,” which would allocate “parenting time” and “decisionmaking responsibilities.” The bill also introduced a list of factors to guide decisions on the best interests of the child. Major themes raised in defence of the bill were the importance of emphasizing parental responsibilities as opposed to rights, the “one-size-doesnot-Wt-all” concept that rejected explicit presumptions, and the promotion of non-adversarial methods of dispute resolution such as mediation (Commons 2003, 52:3102 (Martin Cauchon, Lib.)). Interestingly, given that in 2002 some pro-fathers’ rights MPs had endorsed a move to the language of responsibility, and away from custody and access terminology, some conservative MPs now criticized this shift in “focus away from the rights of the parents.” They urged that parental rights be given ample consideration so that decisions did not “exclude one parent from the desired contact” (Commons 2003, 52:3120 (MacKay, PC)). Jay Hill complained about the suggestion “that parents did not have rights, they only had responsibilities ... Why does the Minister of Justice not believe that both parents deserve equal rights to parent after divorce?” (Commons 2003, 80:4860 (CA)). Hill also indicated that shared parenting need not imply equal time with (or presumably responsibility for) children (Commons 2003, 54:3106). These nervous comments indicated a concern that an emphasis on responsibility for children (which is borne primarily by women) might result in fathers receiving fewer rights, notably in relation to decision making. Several MPs asserted that “parental arrangements before divorce should have no relevance on the care a child will receive after a separation between parents” (Commons 2003, 52:3108 (Hill, CA)). In other words, the fact that a mother took primary responsibility for the care of a child before separation, typically with the father’s endorsement, should not be relevant. Peter MacKay complained that in Bill C-22, the history of care for the child carried the same weight as the nature, strength, and stability of the relationship between the child and each spouse (Commons 2003, 52:3119 (PC)). Debate over Bill C-22 also revealed more pointed discussion about both “the gender wars” and the gendered implications of custody law reform than in previous sessions. Some MPs appeared to believe that the government had adopted the position of women’s groups, even though women’s

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groups were critical of the bill and the process leading up to it (Ontario Women’s Network on Custody and Access 2001). Possibly, these MPs felt that any reform short of joint custody or shared parenting was a feminist reform. Paul Forseth alleged that the minister of justice had “made a serious mistake by succumbing to the special interests and twisted Liberal ideology” and suggested that the minister “listen to the real experts, some of whom are on his own backbench” (Commons 2003, 80:4860 (CA) [emphasis added]).12 Val Meredith suggested more openly that the government had bowed to women’s groups (Commons 2003, 52:3151 (CA)). Several MPs adopted fathers’ rights positions in more speciWc language than had been done previously. Reference was made to “fathers’ groups set up all across the country that have been crying out for a little equity within the Divorce Act” (Commons 2003, 52:3127 (Szabo, Lib.)). Some MPs supporting shared parenting referred to “both parents” in a genderneutral manner (Commons 2003, 64:3792-99 (Rick Borotsik, PC)), but others used discourse that pitted women against men and blamed women for harms to men. Val Meredith alluded to “the biases of the courts toward females in any kind of child custody decisions and biases of courts towards females against the males in a lot of situations that come out of a breakdown of a marriage” (Commons 2003, 52:3149 (CA)). Other MPs referred to fathers effectively becoming “divorced from [their] own children” (Commons 2003, 98:6001 (Spencer, CA)). One said he had been gathering “data on males, the fathers, who have committed suicide one after the other,” linking this overstatement with “perceptions that courts have been biased toward females” (Commons 2003, 64:3792 (Grewal, CA)). This discourse resonated with earlier sessions but was more explicitly gendered. Parental alienation syndrome, whereby mothers supposedly alienate children from fathers, became a signiWcant issue in this session (Berns 2001; Bruch 2001; Commons 2003, 52:3120-21 and 3127 (Szabo, Lib.)). Lack of access was cited as an excuse for fathers’ failure to pay child support (Commons 2003, 52:3153 (Hill, CA)), and the adversarial court system and mothers were held responsible (Commons 2003, 52:3125 (Spencer, CA)). More efforts were made to point out that women were just as bad as men, suggesting that “incidents of domestic violence or violence was [sic] perpetrated equally by men against women and women against men. I believe this tells us that the issue of family violence or domestic violence should not have a gender with respect to our discussions” (Commons 2003, 52:3116 and 3126 (Szabo, Lib.)). Child abuse by mothers was also raised (Commons 2003, 52:3150 (Meredith, CA)), and other differences between men and women in families were de-emphasized: “There are no more deadbeat dads out there than there are deadbeat moms” (Commons 2003, 52:3155 (Elley, CA)). For the Wrst time, however, the problematic assumptions underlying many


fathers’ rights positions were countered by reference to women’s realities, albeit by only two MPs. Judy Wasylycia-Leis, who gave qualiWed support to Bill C-22, and Diane Bourgeois, who voted against it, did not directly reference feminism but they drew on the arguments that women’s groups had made in earlier consultations. Wasylycia-Leis spoke of the potentially negative impacts of divorce law, custody, and access arrangements “on women already in precarious situations of domestic violence” (Commons 2003, 52:3114 (NDP)). Both MPs invoked social science studies to bolster their arguments. Bourgeois emphasized the “constancy of care” that mothers tend to shoulder and cited statistics showing that only “about 7% of fathers ... continue to be interested in responsibilities related to caring for their children after separation or divorce” (Commons 2003, 52:3146 (BQ)). Wasylycia-Leis countered the notion that “violence in the home knows no gender,” citing statistics from a study in Winnipeg showing that 92 per cent of those convicted of spousal abuse were male and 89 per cent of their victims female (Commons 2003, 52:3116). Bourgeois noted that it was clear “that the special joint committee was established and given its mandate because fathers’ rights advocates have been pushing for changes to the Divorce Act on the basis of a number of myths and false assumptions” (Commons 2003, 52:3145). She identiWed three myths upon which fathers’ rights advocacy rested. The Wrst myth was that joint custody presumptions would result in good and responsible parenting. Bourgeois countered that “good parenting cannot be achieved through legislation alone” and “[w]hat needs to be changed are the broader economic, social and cultural foundations of parenting.” The second myth was that men want to become more involved in raising their children after separation or divorce. Bourgeois countered that really what most men wanted was a greater say in decisions. The third myth was that alternative dispute resolution mechanisms were appropriate. Bourgeois pointed out that mediation cannot work where power is not equal to begin with and that when women refuse mediation they are considered the parent least open to working out an agreement: “[W]idely promoted alternative dispute settlement mechanisms such as mediation, counselling, adjudication and parenting courses can become dangerous avenues for women and children who are victims of violence” (3144). Finally, Bourgeois called for the gender-based analysis that the federal government is supposed to conduct when proposing new legislation (3145) and re-emphasized the limited power of law to alter behaviour: “The law does not guarantee that with shared parenting, the father will assume his responsibilities” (3146). This clear feminist analysis generated response from MPs who argued that domestic violence had no gender (Commons 2003, 52:3116 (Szabo, Lib.)); that an emphasis on violence should not unduly shape the debate (Commons 2003, 52:3117 (Borotsik, PC)); that the change in the roles that

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men and women play should indicate a need to look at shared custody (Commons 2003, 52:3145-46 (Elley, CA)); and that many fathers shared parenting (Commons 2003, 52:3146 (Leon Benoit, CA)). Bourgeois stood her ground. The government, however, adhered to its gender-neutral endorsement of “parental responsibilities” and its “one-size-does-not-Wt-all” approach. The minister of justice Martin Cauchon distinguished the “parental responsibilities” approach from a “shared parenting” approach (Commons 2003, 80:4860). He missed the point made by feminists (for example, National Association of Women and the Law 2002) who had informed the government that there was a dangerously Wne line between the two concepts, but, no doubt, he also fuelled fathers’ rights suspicion that the government was bending to feminist pressure. Fathers’ rights recommendations for a presumption of joint custody were not endorsed per se, and the government insisted it was not introducing shared parenting or joint custody – a nod to feminist arguments. The concerns expressed by MPs operating from a fathers’ rights perspective about the lack of parental rights in Bill C-22 indicate that they were worried that it might favour mothers through its reference to history of care as being an important factor in determining a child’s best interests. Bill C-22 did not become law because Parliament was prorogued prior to the 2004 election, but reactions to its “one-size-does-not-Wt-all” approach are revealing. The bill simultaneously worried feminists for its formal equality failure to address gendered realities related to women’s inequality and angered fathers’ rightists for its failure to introduce the quintessential formal equality custody norm – joint legal custody. Feminist recommendations in relation to recognizing women’s inequality and caregiving responsibilities within the family or the prevalence of violence against women were not adopted. Bill C-22’s cautious, gender-neutral attempt to recognize the signiWcance of family violence and history of care to custody disputes would likely have generated their own problems for women and children (Neilson 2004; Boyd 2003a). To the extent that “responsible parenting” requires facilitating a relationship between a child and the other parent wherever possible, the parental responsibility reforms would have compromised women’s equality and autonomy. Women’s autonomy would have bowed to familial ideology and what the Supreme Court of Canada called the “post-divorce family unit” in the Thibaudeau case (Young 1995). Mistaking Liberalism for Feminism? The parliamentary debates indicate that fathers’ rightists found a stronger mouthpiece through MPs than feminists even if the fathers’ rightists did not capture the government agenda. In contrast, feminist concerns were barely mentioned in the House of Commons, and after 1997 the government steadily retreated into gender-neutral language when discussing family law.


What explains the abiding perception that women have been favoured in family law reforms? First, anti-feminists and fathers’ rightists may mistake any acknowledgment of women’s systemic inequality, and attempts to redress it, for discrimination against men. That is, to the (limited) extent that law reforms acknowledge the consequences of ongoing gender-based roles within heterosexual families – for example, that women continue to carry greater caregiving responsibilities and leave relationships with greater economic inequality – these legal reforms depart from the classic formal equality of liberalism that fathers’ rightists typically endorse. Janet Hough (1994, 160) suggests that in resisting feminist calls for substantive equality in family law, the anti-feminist movement is profoundly opposed to modern liberalism: “The degree of hostility towards feminism today, described as a backlash, is a measure of the extent to which this classic liberal ideal of ‘meritocracy’ continues to shape our every-day sense of fairness and justice.” We do not believe that the child support reforms discussed in this chapter represent full substantive equality for women, but, to the extent that they acknowledge gender-based realities, neither do they reXect classic liberal approaches. Feminist research has shown that liberal family law reforms ostensibly directed at women’s and children’s inequality can fail to deal with structural concerns and yet still be viewed as responding to feminism. Divorce law reform in Wisconsin in the late 1970s adopted formal equality goals that impeded law reformers’ ability to ameliorate dire economic circumstances faced by many women, rendering the change primarily symbolic (Fineman 1983). Yet it was viewed as a feminist reform. Moreover, legislative reform that appears to address “the woman question” often occurs because other political interests coincide to make the legislation expedient but without challenging the pyramid of male power (Mossman 1994, 12-13). The reforms to Canadian child support law arguably have operated within a similar dynamic. In all three decades, the neo-liberal desire to alleviate public responsibility for the economic well-being of women and children and place this responsibility on former spouses informed the support enforcement initiatives as much, or more, than did the concern for women’s equality. Notably during the early 1990s, MPs reinforced a notion of male economic power and women’s economic dependence within heterosexual families in their promotion of privatized child support. The law reforms failed to deal with the root causes of women and children’s poverty or to challenge the neo-liberal model of privatization and the continuing dominance of familial ideology (Mossman 1997). However, the gesture towards dealing with women’s economic inequality, coupled with the paternalistic and protectionist references that some MPs made to women’s and children’s interests, and to men’s moral duties towards them, fuelled the ire and arguments of fathers’ rights advocates.

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In relation to child custody law reform, fathers’ rights arguments Wt much better with the formal legal equality of classical liberalism than did the arguments of the women’s groups, which endorse a substantive equality approach that takes into account continuing unequal social and familial relations (see also Coltrane and Hickman 1992). In general, Canadian child custody law reform has adopted a formal equality or liberal (feminist) model. As mentioned, Canadian law reform documents at the end of the period studied became surprisingly gender neutral, given the highly gendered nature of the debates. Arguably, government bodies walked a careful line in order to present the appearance of not bowing to either women’s groups or fathers’ rights advocates, adopting a liberal feminist approach that promoted the same treatment of mothers and fathers, regardless of their differential social and economic positions (Boyd 2003a). Through this process of Wnding a middle-ground compromise, law reform was unduly inXuenced by fathers’ rights arguments. On the whole, feminist arguments in relation to child custody law are nowhere near as extreme as those of fathers’ rightists. They take better account of social science research documenting phenomena such as unequal family relations, abuse, and economic disadvantage and generally root their proposals in studies and experience that link caregivers’ interests with those of their children. Yet, casting these law reform debates in dichotomous terms as “the gender wars” implies that feminists and fathers’ rightists are equal adversaries offering equally valid analysis and recommendations grounded in research and empirical realities. This construction leads legislators to seek a false middle ground between the positions of the two adversaries. To the extent that law reformers avoid the issues raised by women’s groups and adopt a gender-neutral approach to avert adverse reactions from fathers’ rightists, their reforms are unlikely to deal appropriately with the difWcult circumstances faced by many women and children upon family breakdown. In this sense, fathers’ rightists have unduly dictated and skewed where the middle ground lies. The more they have bombarded Parliament with rhetoric and anecdotal tragic tales, the less likely the government has been to address the concerns of women’s groups, no matter how rooted in empirical reality. Another factor that may have skewed the “middle ground” was that women’s groups were cast simultaneously as radicals and as conservative defenders of the status quo. They were constructed as having “urged the government to make no changes to the custody and access regime,” whereas “father’s rights organizations campaigned tirelessly ... for the inclusion of a presumption in the law that each parent had equal access to children” (Commons 2003, 64:3792-94 (Grewal, CA)). In fact, although women’s groups protested moves towards a shared parenting regime, they also asked for changes that would enhance the safety of women and


children and recognize the gendered nature of caring for children. These requests were hardly radical and yet feminists were constructed as having made extreme anti-male arguments: “Their position also overstates the occurrence of abuse and portrays men in a negative light” (Commons 2003, 64:3792-94 (Grewal, CA)). Feminists did not endorse the status quo, yet they were constructed as doing so because fathers’ rightists successfully portrayed the status quo as favouring women and argued that the only change that would radically address this gender bias against men would be joint custody or shared parenting. The discursive linkage between fathers’ rights arguments and traditionalist views about family may also explain the reception of fathers’ rights arguments, which are at their heart about restoring traditional value systems, including a re-embracing of family values and a re-valorizing of traditional gender roles (Menzies 2001). Fathers’ rightists invoke an ideal of society based on a white, Judeo-Christian, patriarchal, and heterosexual model of family and society that liberalism has moved away from. This image represents a comfortable norm for many Canadians – one that many feel is under threat. Suggesting that those most vulnerable in Canadian society might be harmed by these trends draws on tropes about children’s innocence (Wiegers, this volume). In his 2001-2 argument for implementation of the SJC recommendations on shared parenting, Canadian Alliance MP Larry Spencer charged unspeciWed people ( homosexuals? feminists? those from “different” cultures and religions?) with a conspiracy to steal the hearts and minds of children: “There is another battle out there. It is the battle for the minds, hearts and souls of our children. There are people who see in children an opportunity to change our entire culture. They hate the traditional values originally based on Judeo-Christian beliefs. They want to totally destroy those values ... if they can get control of children and if they can inXuence children they can change the whole culture in one generation” (Commons 2002, 160:9880). This neo-conservative worldview is signiWcant, not least because it can work with the neo-liberal agenda of the government. Privatization of economic responsibility within the traditional nuclear family Wts the government’s neo-liberal agenda more than, for instance, Diane Bourgeois’s call for a broader public agenda for families and the promotion of women’s equality. The family law reforms introduced during the period we researched did not address signiWcant macro-issues shaping inequality within families and, thus, were not genuinely feminist reforms. As Bourgeois said, “I remind the House that Canada does not even have a real family policy, and it does not have a policy promoting women’s equality and the wellbeing of their children within the family” (Commons 2003, 52:3129 and 3144). The reform agenda was constrained signiWcantly by fathers’ rights interventions and the way the government dealt with them.

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Conclusion Our review of the Hansards and committee debates reveals not only that fathers’ rights “backlash” rhetoric about feminist conspiracies is grossly overstated but also that thinking about resistance to feminism as “backlash” is overly simplistic. The interests of fathers’ rightists were not ignored nor did feminism capture Parliament. Rather, at different moments, the debates took these interests into account or sought to avoid them. Moreover, the notion of a gender war or competition between women and men/ mothers and fathers is not an adequate explanatory tool. Instead, the debates suggest the need to take account of state practices and broader ideologies, including neo-liberalism, neo-conservatism, and familial ideology, and their link to resistance to both fathers’ rights and feminism. To suggest that government has responded more speciWcally to women’s interests than to men’s would run the danger of “mistaking liberalism for feminism” (Hough 1994). It risks mistaking neo-liberal state policies such as the privatization of economic responsibility within the family for optimal feminist strategies. One of the few MPs to express a genuinely feminist stance suggested that the strong men’s lobby had impeded the expression of views by those representing women (Commons 2003, 52:3129 (Bourgeois, BQ)). Bourgeois identiWed the diminishing of public space for feminist arguments and noted that serious issues such as the systemic conditions that generate poverty were not being canvassed sufWciently. This, we feel, is the key issue to emerge from our research. The illusion that women have achieved equality (Brodsky and Day 1989, 11) draws on problematic evidence such as the paternalistic discourses in relation to women and children in the family law reform portions of the Hansards. This evidence in turn fuels the rise of the fathers’ rights movement, and the government response appears to have been a diminishing of space for feminist analyses of the sexual division of labour, women’s poverty, violence against women, and gendered power dynamics within the family. The governmental retreat into gender-neutral discourse, responses, and law reform proposals in relation to family law constricts the opportunity for feminist engagement with law reform. Whether we call it backlash or not, a complex combination of factors and discourses makes it increasingly difWcult for feminists to intervene in the terrain of family law. Acknowledgments Many thanks to Andrea Long, Renée Hoggard, Patricia Cochran, Rachel McVean, and Fiona Kelly, who helped us with research over the years, and to Emma Cunliffe for editing comments. Notes 1 Such as they were. Janet Hough (1994, 148-49) suggests there was no organized feminist lobby during this period and that reforms were initiated by non-feminists.


2 The National Association of Women and the Law (NAWL) wrote a brief on the problems of joint custody and the friendly parent rule, but we saw no evidence that the NAWL appeared before the Standing Committees (Lamb 1985). 3 However, the rights of non-custodial parents and grandparents were invoked in relation to the proposed Bill C-332, An Act to Amend the Divorce Act, in the third session of the thirty-fourth Parliament in 1992 (Commons 1992, 8:10473 and 10475). 4 He referred to feminist lawyer Miriam Grassby’s 1991 research report (Commons 1992, 9:12082). Liberal member of parliament John Manley and Progressive Conservative member of parliament David Kilgour also made this point, indicating that Grassby’s 1991 article was inXuential (Commons 1993, 12:15875). 5 For example, Jack Ramsay (Commons 1994, 78:4834, 127:8047 (Ref.)) and Daphne Jennings (Commons 1994, 131:8303-7 (Ref.)). 6 Bill C-231, An Act to Amend the Divorce Act (Granting of Access to, or Custody of, a Child to a Grandparent) (Commons 1994, 44:2706 (Gaffney, Lib., introduced 24 March 1994)); Bill C-232, An Act to Amend the Divorce Act (Granting of Access to, or Custody of, a Child to a Grandparent) (Commons 1994, 45:2798 ( Jennings, Ref., introduced 25 March 1994)); and Bill C-322, An Act Respecting the OfWce of the Auditor General for the Family (Commons 1995, 188:11815 (Strahl, Ref. introduced 26 April 1995)). 7 For example, see the following debates in the House of Commons (Commons 1994, 69:4278, 115:7343 (Gagnon, BQ), and 42:2656 (Fillion, BQ)). 8 For example, see the following debates (Commons 1994, 74:4552; 1995, 170:10723 ( Telegdi, Lib.); 1994, 42:2658 (Silye, Ref.); 1995, 269:17102 (Gaffney, Lib.)). 9 Jay Hill also made a more creative argument that a joint custody regime would beneWt mothers as well as fathers, but this was a rare exception (Commons 1996, 80:5026-27). 10 See, for example, the following debates in the House of Commons (Commons 1996, 78:4921 (Hayes, Ref.), 98:6209 (Gar Knutson, Lib.); 1997, 141:8769 (Hedy Fry, Lib.)). 11 This heading is borrowed from Rhoades 2002. 12 We assume special interests referred to feminists, but he may have meant the divorce industry (see Commons 2003, 52:3121 (Szabo, Lib.)). References Ad Hoc Committee on Custody and Access. 1998. A Brief to the Special Joint Committee on Child Custody and Access Reform. Vancouver. 9 April [on Wle with authors]. Bailey, Martha J. 1989. “Unpacking the ‘Rational Alternative’: A Critical Review of Family Mediation Movement Claims.” Canadian Journal of Family Law 8: 61-94. Bala, Nicholas. 1999. “A Report from Canada’s ‘Gender War Zone’: Reforming the Child Related Provisions of the Divorce Act.” Canadian Journal of Family Law 16: 163-227. Berns, Sandra S. 2001. “Parents Behaving Badly: Parental Alienation Syndrome in the Family Court: Magic Bullet or Poisoned Chalice.” Australian Journal of Family Law 15(3): 191-228. Bill C-41, An Act to Amend the Divorce Act, the Family Order and Agreements Enforcement Assistance Act, the Garnishment and Pension Diversion Act and the Canada Shipping Act, S.C. 1997, c. 1. Blankenhorn, David. 1995. Fatherless America: Confronting Our Most Urgent Social Problem. New York: Basic Books. Bourque, Dawn M. 1995. “‘Reconstructing’ the Patriarchal Nuclear Family: Recent Developments in Child Custody and Access in Canada.” Canadian Journal of Law and Society 10(1): 1-24. Boyd, Susan B. 1989. “Child Custody, Ideologies, and Employment.” Canadian Journal of Women and the Law 3: 111-33. –. 2003a. “Walking the Line: Canada’s Responses to Child Custody Law Reform Discourses.” Canadian Family Law Quarterly 21: 397-423. –. 2003b. Child Custody, Law, and Women’s Work. Toronto: Oxford University Press. –. 2004a. “Backlash against Feminism: Canadian Custody and Access Reform Debates of the Late Twentieth Century.” Canadian Journal of Women and the Law 16(2): 255-90. –. 2004b. “Demonizing Mothers: Fathers’ Rights Discourses in Child Custody Law Reform Processes.” Journal of the Association for Research on Mothering 6(1): 52-74.

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Boyd, Susan B., and Claire F.L. Young. 2002. “Who InXuences Family Law Reform? Discourses on Motherhood and Fatherhood in Legislative Reform Debates in Canada.” Studies in Law, Politics and Society 26: 43-75. Brodsky, Gwen, and Shelagh Day. 1989. Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? Ottawa: Canadian Advisory Council on the Status of Women. Bruch, C.S. 2001. “Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases.” Family Law Quarterly 35(3): 527-52. Canada. Department of Justice. 2001. Putting Children’s Interests First: Custody, Access and Child Support in Canada. Ottawa. Canada. Federal/Provincial/Territorial Family Law Committee. 1991. Child Support: Public Discussion Paper. Ottawa. –. 1992. The Financial Implications of Child Support Guidelines. Ottawa. –. 1995. Federal/Provincial/Territorial Family Law Committee’s Report and Recommendations on Child Support: Summary. Ottawa. –. 2002. Putting Children First. Final Federal-Provincial-Territorial Report on Custody and Access and Child Support. Ottawa. Canada. House of Commons. 1976-2003. Debates. Ottawa. Canada. Special Joint Committee of the Senate and House of Commons on Child Custody and Access. 1998. Evidence, 36th Parl., 1st sess. Canada. Special Joint Committee of the Senate and House of Commons on Divorce. 196667. Evidence, 27th Parl., 1st sess. No. 7 (15 November) and No. 16 (16 February). Canada. Standing Committee on Justice and Legal Affairs. 1985. Evidence, 33rd Parl., 1st sess. Canada. Standing Senate Committee on Social Affairs, Science and Technology. 1996. Proceedings. Ottawa. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Chafetz, Janet Saltzman, and Anthony Gary Dworkin. 1987. “In the Face of Threat: Organized Antifeminism in Comparative Perspective.” Gender and Society 1(1): 33-60. Cohen, Jonathan, and Nikki Gershbain. 2001. “For the Sake of the Fathers? Child Custody Reform and the Perils of Maximum Contact.” Canadian Family Law Quarterly 19: 121-83. Collier, Richard. 2001. “In Search of the ‘Good Father’: Law, Family Practices and the Normative Reconstruction of Parenthood.” Studies in Law, Politics and Society 22: 133-71. Coltrane, Scott, and Neal Hickman. 1992. “The Rhetoric of Rights and Needs: Moral Discourse in the Reform of Child Custody and Child Support Law.” Social Problems 39(4): 400-20. Convention on the Rights of the Child. 20 November 1989, 44 U.N. 6 AOR Supp. (No. 49), at 167, [1992] C.T.S. Cossman, Brenda. 2002. “Family Feuds: Neo-Liberal and Neo-Conservative Visions of the Reprivatization Project.” In Brenda Cossman and Judy Fudge, eds., Privatization, Law and the Challenge to Feminism, 169-217. Toronto: University of Toronto Press. DeKeseredy, Walter S. 1999. “Tactics of the Antifeminist Backlash against Canadian National Woman Abuse Surveys.” Violence against Women 5(11): 1258-76. Delorey, Anne Marie. 1989. “Joint Legal Custody: A Reversion to Patriarchal Power.” Canadian Journal of Women and the Law 3(1): 33-44. Diamond, Bonnie. 1999. “The Special Joint Committee on Custody and Access: A Threat to Women’s Equality Rights.” Canadian Woman Studies 19: 182-85. Divorce Act, R.S.C. 1970, c. D-8. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Drakich, Janice. 1989. “In Search of the Better Parent: The Social Construction of Ideologies of Fatherhood.” Canadian Journal of Women and the Law 3(1): 69-87. Dulac, Germain. 1989. “Le Lobby des Pères, Divorce et Paternité.” Canadian Journal of Women and the Law 3(1): 45-68. Faludi, Susan. 1991. Backlash: The Undeclared War against American Women. New York: Crown. Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4.


Fassel, Mary Lou, and Diana Majury. 1987. Against Women’s Interests; An Issues Paper on Joint Custody and Mediation. Ontario: National Action Committee on the Status of Women. Fineman, Martha. 1983. “Implementing Equality: Ideology, Contradiction and Social Change: A Study of Rhetoric and Results in the Regulation of the Consequences of Divorce.” Wisconsin Law Review 789-886. Fudge, Judy, and Brenda Cossman. 2002. “Introduction: Privatization, Law, and the Challenge to Feminism.” In Brenda Cossman and Judy Fudge, eds., Privatization, Law, and the Challenge to Feminism, 3-37. Toronto: University of Toronto Press. Gordon, Jane. 1989. “Multiple Meanings of Equality: A Case Study in Custody Litigation.” Canadian Journal of Women and the Law 3(1): 256-68. Gordon, Marie. 2000. “No Anti-Male Bias in the Tragic White Family Case.” Edmonton Journal, 2 April, A15. Grassby, Miriam. 1991. “Women in Their Forties: The Extent of Their Rights to Alimentary Support.” Reports of Family Law 30: 369-403. Harvie, Robert. 2002-3. “Male Victims of Bias in Family Law?” Law Now 27(3): 18-20. Hough, Janet. 1994. “Mistaking Liberalism for Feminism: Spousal Support in Canada.” Journal of Canadian Studies 29(2): 147-64. Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as am. Kelly, Fiona. 2004. “Nuclear Norms or Fluid Families? Incorporating Lesbian and Gay Parents into Canadian Family Law.” Canadian Journal of Family Law 21(1): 133-78. Laing, Marie. 1999. “For the Sake of the Children: Preventing Reckless New Laws.” Canadian Journal of Family Law 16: 229-83. Lamb, Louise. 1985. Bill C-47: Joint Custody, Child Support, Maintenance Enforcement and Related Issues. Ottawa: National Association of Women and the Law. –. 1987. “Involuntary Joint Custody.” Herizons 5: 20-31. Lessard, Hester. 2004. “Mothers, Fathers, and Naming: ReXections on the Law Equality Framework and Trociuk v. British Columbia (Attorney General).” Canadian Journal of Women and the Law 16(1): 165-211. Long, Lazarus. 2000. “Divorce Should Not Be a Death Sentence.” Dick Freeman, BC Father’s Rights, http://www.fathers.bc.ca/courtroom_blood.htm. McBean, Jean. 1987. “The Myth of Maternal Preference in Child Custody Cases.” In Sheilah L. Martin and Kathleen Mahoney, eds., Equality and Judicial Neutrality, 184-92. Calgary: Carswell. Matas, Robert. 2000. “The Pain behind a Suicide.” Globe and Mail, 8 April, A3. Menzies, Robert. 2001. “Book Review of The War against Boys: How Misguided Feminism Is Harming Our Young Men.” Canadian Journal of Women and the Law 13: 196-202. Mossman, Mary Jane. 1994. “‘Running Hard to Stand Still’: The Paradox of Family Law Reform.” Dalhousie Law Journal 17: 5-34. –. 1997. “Child Support or Support for Children? Re-Thinking ‘Public’ and ‘Private’ in Family Law.” University of New Brunswick Law Journal 46: 63-88. National Association of Women and the Law. 2002. “Open Letter to the Minister of Justice on Custody and Access Issues.” 25 October, http://www.owjn.org/custody/nawl.htm. Neilson, Linda. 2000. “Partner Abuse, Children and Statutory Change: Cautionary Comments on Women’s Access to Justice.” Windsor Yearbook of Access to Justice 18: 115-52. –. 2004. “Assessing Mutual Partner-Abuse Claims in Child Custody and Access Cases.” Family Court Review 42(3): 411-38. Oakley, Ann, and Juliet Mitchell, eds. 1997. Who’s Afraid of Feminism? Seeing through the Backlash. New York: New Press. Ontario Women’s Network on Custody and Access. 2001. Brief to the Federal, Provincial, Territorial Family Law Committee on Custody, Access and Child Support. Ottawa: National Association of Women and the Law. Popenoe, David. 1996. Life without Father: Compelling New Evidence That Fatherhood and Marriage Are Indispensable for the Good of Children and Society. New York: Free Press. Quaile, Jennifer. 2002. “‘At the Mercy’ of Patriarchy: Women and the Struggle over Child Support.” In T. Brettel Dawson, ed., Women, Law and Social Change, 588-607, 4th edition. Concord, ON: Captus Press.

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Rhoades, Helen. 2002. “The Rise and Rise of Shared Parenting Laws: A Critical ReXection.” Canadian Journal of Family Law 19: 75-114. Robson, Krista. 2004. “Unfair Guidelines: A Critical Analysis of the Federal Child Support Guidelines.” Journal of the Association for Research on Mothering 6(1): 93-108. Stacey, Judith. 1998. “Dada-ism in the 1990s: Getting Past Baby Talk about Fatherlessness.” In C.R. Daniels, ed., Lost Fathers: The Politics of Fatherlessness in America, 5184. New York: St. Martin’s Press. Walby, Sylvia. 1993. “‘Backlash’ in Historical Context.” In Mary Kennedy, Cathy Lubelska, and Val Walsh, eds., Making Connections: Women’s Studies, 79-89. London and Washington: Taylor and Francis. Young, Claire F.L. 1995. “It’s All in the Family: Child Support, Tax and Thibaudeau.” Constitutional Forum 6(1): 107-10. Cases Cited Thibaudeau v. M.N.R., [1994] 2 F.C. 189 (C.A.), rev’d [1995] 2 S.C.R. 627, 124 D.L.R. (4th) 449.

8 Child-Centred Advocacy and the Invisibility of Women in Poverty Discourse and Social Policy Wanda Wiegers

There is little doubt that the institutionalized women’s movement has lost status over the last decade and that gender has lost ground as a variable of concern in ofWcial state discourse. The chapters in this volume demonstrate that there is a failure to address gender inequality and an increased resistance to feminist-inspired proposals for change in many areas of law and social policy. As gender has faded from view, however, we have witnessed a marked rhetorical emphasis on children’s interests and welfare in family law and on the social policy front more generally. The heightened social and political concern for children since at least the 1980s is not unique to Canada, and it has international dimensions linked to children’s rights movements and to broader social and economic conditions. Christopher Jenks (1996), among other sociologists of childhood, identiWes the child as a central Wgure in late modernity or advanced capitalism. According to Jenks, an enhanced proWle for children represents an adult response to accelerated social change and the prevalence of risk and discontinuity both in economic and conjugal life. A child is “a symbol of society’s optimism, a search for a hopeful future or a recollection of good times past” (131). Caroline Beauvais and Jane Jenson (2001) argue that in Canada a new paradigm of investment in children is emerging that represents a shift away from a paradigm of private family responsibility. In this new paradigm, the child is “the new citizen” and a symbol of the state’s concern with the promotion of equality of opportunity. While one might question whether the child signiWes a “new” as opposed to a “pre-citizen” and whether “investing in children” represents a new paradigm for state policy as a whole, the child, as this chapter will demonstrate, has clearly emerged as a signiWcant Wgure in the Canadian social policy context. Some feminists have suggested that child-centred approaches to policy may hold promise as a way of advancing the interests of women. After noting that feminist arguments appear to have lost their political purchase,

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Brenda Cossman (2002, 215) has argued that “it is [then] incumbent on feminists and others committed to social justice to develop new [arguments] that respond to or at least have some degree of resonance with the new political and ideological order.” Cossman suggests that child-centred approaches are among the strategies that might empower women. Joan Williams (2000, 206) has also endorsed highlighting children’s issues in light of ideological resistance in American political culture to meeting needs other than those of children. Williams argues that post-divorce obligations, as well as other issues, should be framed in terms of children’s interests when women’s dependency stems from meeting children’s needs. In the broader context of feminist thought, political economists and sociologists have long called for more attention to the signiWcant role of childcare in the work of social reproduction, work that is disproportionately borne by women (Vosko 2002). Unpaid reproductive work is a necessary precondition of a paid labour force and is not naturally noncompensable or inherently less valuable than other types of work. The failure to socialize these costs has, moreover, a fundamental impact on women’s ability to undertake paid work and on women’s poverty and inequality. An increased emphasis on children would seem to have the potential to focus more attention on the care of children and on the disproportionate costs that are externalized to women as a group. This chapter explores the signiWcance of a child poverty focus in an attempt to shed light on the strengths and weaknesses, the possibilities, and the limits of child-centred strategies in advancing the interests of women.1 Policy discourse since the 1990s has directed increased attention towards poverty relative to the more general question of social equality. However, poverty has, more often than not, meant child poverty, and the image of the impoverished child now shapes much poverty-related discourse and policy design at both the federal and intergovernmental levels. Many anti-poverty activists and social organizations have strongly encouraged this focus on children as a strategic way to keep poverty and redistribution on the neo-liberal policy agenda. Policies directed towards reducing the depth of child poverty have undeniably generated signiWcant beneWts for many women and children. The National Child BeneWt (NCB), in particular, has supplemented the income of workers in low wage and precarious work, a disproportionate percentage of whom are women. However, as this chapter shows, these policies have not eliminated child poverty or raised a substantial proportion of households out of poverty. Moreover, monetary beneWts have been unevenly distributed across groupings in a way that reXects traditional criteria of deservingness, with minimal monetary beneWts to date for both women and children in households reliant on social assistance.

Child-Centred Advocacy and the Invisibility of Women

The fact that the poorest women and children have beneWted least from these policies casts serious doubt on the efWcacy of a child poverty strategy and is related to what I will argue are the likely ideological and discursive effects of a child poverty focus. While the child-centred approach has strategic appeal, in the poverty context it reXects and reinforces one of neo-liberalism’s most fundamental norms – that of adult independence and self-reliance. I also suggest that the focus on impoverished children appeals to a charitable impulse and that the dominant image of passivity and vulnerability not only objectiWes children but also generates a politics of pity and rescue that is antithetical to a politics of social justice and respect. In general, I relate the framing of poverty as primarily child poverty to the individualistic orientation of economic and political restructuring and welfare reform discourse. While children have had increasing prominence, as both innocent dependants and sites of investment, the labour of rearing and caring for children has not achieved the same degree of prominence and the gendered nature of childcare, in particular, remains largely invisible in state discourse. ConWning the harm of poverty to children discursively excludes adults from the ambit of social concern. It not only obscures the extent to which current social structures systematically generate adult dependency but also undermines a social justice and human rights perspective on relief from poverty. Thus, while the predominant emphasis on children may have generated some beneWts, it has also functioned as a way of resisting and containing broader claims to poverty relief and equality on the part of women and other subordinate groups. The Wrst part of this chapter examines the connection between women and children in the struggles for women’s equality and children’s rights. After highlighting dominant cultural images of children, I discuss the intimate link between women’s and children’s economic status and the implications of this linkage for women’s activism and struggles for equality. The second part of the chapter provides an overview of federal social policy in relation to poverty over the last two decades, emphasizing the increasing invisibility of women’s inequality in favour of a focus on child poverty and a child investment strategy more generally. The third part examines more closely the ideological underpinnings linking the construction of children in the discourse on child poverty with the invisibility of women’s poverty and inequality. I conclude with general comments on the role of child-centred advocacy strategies in advancing the interests and equality of women. Constructions of Children and Women’s Activism A number of advocacy groups have invoked the symbolic value or “cultural capital” of children ( Jenkins 1998; Minow 1995). Children’s needs

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and welfare have been pivotal to various campaigns and political agendas, from George Bush’s No Child Left Behind campaign, men’s rights, and pro-family campaigns to those of feminist, children’s rights, and anti-poverty groups. In all of these contexts, children’s interests are deeply contested and deeply political, having particularly signiWcant political consequences for women and children. Henry Jenkins (1998) argues that most of these agendas draw on the “vocabulary of child protection” and on dominant social constructions of children as dependent, passive, and innocent. As many sociologists have noted, childhood has had markedly different meanings and implications over time and across cultures. The legal and social treatment of children in Canada reXects a complex combination of essentialist ideas that can be traced to the patriarchal family in Western industrial capitalism (Mandell 1988). Although the dependence of young children has always been reXected in social or legal distinctions based on age, children have experienced an extended dependency over the last two centuries as a result of imposed constraints such as compulsory school attendance, an inability to vote, and subjection to parental discipline. Dominant cultural images of children have tended to reXect a simplistic binary model in which childhood is contrasted to a male adult norm of independent, rational agency and characterized as a period of becoming and of vulnerability and innocence. Childhood dependency is now contested by child liberationists, and child innocence has long been challenged by oppositional images of children as barbarous. However, the notion of children as potential beings or projects to be moulded and shaped by policy makers, parents, and professionals has if anything intensiWed in advanced global capitalism (Suransky 1982; Stephens 1995). Moreover, “[a] dominant modern discourse of childhood continues to mark out ‘the child’ as innately innocent, conWrming its cultural identity as a passive and unknowing dependent, and therefore as a member of a social group utterly disempowered – but for good, altruistic reasons” ( Jenks 1996, 124). A detailed examination of how these dominant constructions of children have developed over time as a product of historical and structural conditions is beyond the scope of this chapter. Largely submerged in these conceptions of children, however, is not only the profound impact of unequal social relations on children but also the intimate link between the cultural and economic status of children and the history of women’s subordination. Nancy Mandell (1988) argues that the “ascendancy of childhood” in the nineteenth century was conditioned on a corresponding “cult of domesticity” that deWned women primarily as nurturing, selXess mothers. The emergence of both ideologies reXected the separation of motherhood and childhood from the paid exchange of labour in the marketplace and their location in the private sphere of the patriarchal nuclear family. In relation to men, both women and children were thereby


constructed as incompetents and beings in need of protection and control. As children were deWned largely by a need for nurturance and protection, motherhood and caregiving were deWned as “natural” mandates for women. The respective fates of women and children have been and remain deeply connected (Wiegers 2002, 27-41). Although an increasing number of women are not bearing and rearing children, most women still give birth to children or are mothers in some capacity. Most children live with their mothers either alone or in two-parent households, and mothers remain disproportionately responsible for their daily care and maintenance.2 Children undoubtedly have a capacity for rational agency, but under current social conditions they also have signiWcant needs for physical care, attention, and guidance. Attending to these needs results in intense emotional bonds between mothers and children and has a substantial impact on women’s economic status. Women are on average more likely to be poor and to earn less than men (Statistics Canada 2006a).3 Women’s childcare labour is not only unpaid, but it also impairs the status of mothers in a labour market that is based on a childless worker norm and segmented along sex and racial lines. Women, especially visible minority and Aboriginal women, remain concentrated at the bottom of the job hierarchy with jobs characterized by low wages, few beneWts, little job security or prospect for promotion, and increased non-standard work ( Wiegers 2002, 34-36). Among other intersecting sources of social disadvantage, unpaid domestic labour, inadequate support for parenting, labour market conditions, and abysmally low rates of social assistance generate poverty for both women and children. Given the intimate connection between the lives and economic status of women and children, it is not surprising that the interests of children have been used both to support and oppose the objectives of feminists. In the context of the separate spheres ideology dominant in the late nineteenth century, maternal feminists premised many of their policy proposals, including the implementation of a mother’s allowance, on the importance of mothers to the welfare of children (Strong-Boag 1979, 31). Enhancing the status of mothers was a vehicle for improving child welfare, a position largely afWrmed by child development literature, social work, and philanthropy. Second-wave feminism, by contrast, challenged motherhood as a prescribed duty or destiny and contested the subordination of women to men in marriage and in social life. Indeed, some feminists portrayed children and motherhood itself as barriers to women’s independence and autonomy (Firestone 1970). This distancing from the claims of children likely reXected a fear that women could either be “infantilised by the connection or suppressed in the name of the child” (Lim and Roche 2000, 232). In any event, the separation of motherhood from womanhood provided a context that ultimately made it easier for a separate

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child-centred discourse, as well as a new ideology of fatherhood, to emerge. This new ideology portrays fathers as vital for the emotional and psychological welfare of the child and promotes a gender-neutral discourse in relation to the care of children (Drakich 1989; Boyd 2003). Men’s rights and pro-family groups have largely portrayed children as the victims of feminism or women’s claims to equality. Commenting on the failure of an alliance between the women’s movement and children’s rights groups in the 1980s, Martha Minow (1995) noted that children’s rights advocates in the United States also blamed the women’s movement for failing to put a higher priority on children’s rights. More recently, in a treatise on the missing child in liberal theory, John O’Neill (1994, 4748) argues that the commitment of “bourgeois feminists” to the individualizing ideologies of sexual freedom, abortion, and single parenthood indiscriminately encouraged these lifestyle choices for young women and put their birth cohort at risk. In a more sensitive vein, Valerie Suransky (1982, 42) suggests that largely as a result of inadequate childcare, “the woman and her child sadly Wnd themselves at war with one another, vying for freedoms denied in the capitalist structure of domination in which, historically, both have been commodities.” Suransky (1982, 9) complains that feminist literature was rarely sensitive to the perspective and experience of children as living intentional beings (see also Alanen 1994, 27 and 34; Kitzinger 1988, 86). She also argues that the “struggle for democratization of the family and the elimination of sex hierarchy and privilege can only be successfully waged in a grounded commitment to children as well as to the adults involved” (15). These tensions between women’s and children’s advocates in part reXect the difWculties in overcoming sexism and in recognizing women as important human beings in their own right, not simply as vehicles for the satisfaction of the needs of others. The tensions also reXect difWculties in contesting settled conceptions of children’s needs and traditional ways of meeting those needs. According to Minow (1995), American feminists did not abandon children but rather demanded a change in the background conditions for their care, including more social support and greater male involvement. In Canada, maternity leave, socialized childcare, and a guarantee of quality, affordable childcare have long been critical priorities of the organized women’s movement. Until the mid-1990s, these issues were socially and politically deWned as women’s issues (Rebick 2000, 70). Although this position ran the risk of reinforcing an identiWcation of women with childcare, it reXected very real demands on women’s lives and attempted to improve outcomes for both women and children. Unfortunately, the failure to achieve adequate social supports for childcare has likely contributed to making feminism a target for blame and a scapegoat


for both the stresses of contemporary family life and real or perceived threats to children’s well-being. Women’s advocacy around poverty has also tended to encompass the claims of children. In the early 1990s, the “feminization of poverty” was highlighted to signify the dramatic change in women’s economic situation upon separation or marital breakdown. In this rhetoric, the “deserving status [of women was] usually tied to their status as mothers” and the “legitimacy of feminist demands on behalf of women tend[ed] to be established by evoking the moral claim of women and children” (Pulkingham 1995, 81). While the thesis that poverty was feminized over this period has been controversial (see, for example, Evans 1998, 50), it is signiWcant that the claim to poverty relief was framed as a women’s issue and that the interests and welfare of women and children were intrinsically connected. Although the moral force of the claim may have depended largely on women’s status as mothers, women were constructed as important to the relief of their children’s poverty and not as obstacles to their well-being. Even when divorced or separated, mothers were constructed largely as sympathetic victims of poverty in the early 1990s (Boyd and Young, this volume). Despite these attempts to include children within a women’s political agenda, issues such as childcare and poverty have been deWned separately as children’s issues since at least the mid-1990s (Rebick 2000). In the next section, I argue that this shift is part of a larger reconWguration of state relations that has rendered gender inequality invisible and contained women’s claims to substantive equality. Children and Women in Poverty Discourse and Social Policy The Effects of Restructuring on Women Since the mid-1970s, critics have observed numerous shifts in poverty discourse in Canada. Wendy McKeen (2004) argues that poverty has come to signal simply a lack of adequate resources rather than an outcome of intersecting social inequalities structured around class, gender, race, and disability. Sylvia Bashevkin (2002, 12), in comparing the third-way policies of Jean Chrétien, Bill Clinton, and Tony Blair, notes that in all three countries poverty was increasingly deWned as a moral individual problem rather than as a systemic material or economic problem. While welfare recipients and single mothers were not as explicitly maligned in Canada as in the United States and the United Kingdom, state policy in all three countries stressed an “individualistic notion of personal responsibility” and placed a greater emphasis on economic independence, active (versus passive) income supports, and scrutiny of welfare recipients (ibid., 11 and 99). During this same period, the structural dimensions of poverty and

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inequality for women – their experience in the labour market and the impact of their unpaid domestic labour – became increasingly invisible in state discourse (Brodie 1995). By the mid-1990s, women were written out of poverty discourse, as “children replaced single mothers as the deserving poor” (McKeen 2004, 113). Even in the broader context of childcare and childhood development, the “norm [has been] silence” regarding the goal of gender equality and the support of women’s needs as parents ( Jenson, Mahon, and Phillips 2003, 149). According to Judy Fudge (2000), a more general shift has occurred towards a more formal notion of equality that no longer signiWes equality of outcomes but rather the removal of overt discrimination or constraint in the provision of opportunity. This cultural shift reXects the cumulative effect of numerous changes in the social and economic environment in Canada that are linked to technological innovation, increased global integration, and a process of state restructuring. Others have detailed the impact of these changes and the emergence of a market-driven government strategy aimed predominantly at attracting capital, enhancing international competitiveness, and reducing taxes, government deWcits, and debt (Brodie 1996; Guest 1997; Cossman and Fudge 2002; Yalnizyan 2005). On the income security front, government policies have required a greater reliance on the market, family, or voluntary sector and a reduced role for the state in meeting basic needs. The 1995 abolition of cost-shared funding and the removal of most conditions on the federal funding of social assistance, in particular, signalled an important shift away from the notion of a social entitlement to poverty relief and the Canadian state’s undertakings in several international accords ( Jackman 1995; Day and Brodsky 1998). Successive cuts to organized women’s groups have had an adverse impact on women’s activism and political voice (McKeen 2004, 95 and 135). Women’s political involvement has been further undermined by other factors related to economic and political restructuring. During the 1980s and 90s, women’s participation in the labour force increased dramatically (largely in order to sustain household income) (Vanier Institute of the Family 2001), paid work in the labour force intensiWed, and cutbacks in social programs resulted in the ofXoading of care onto women. In political discourse, the enhanced proWle of Reform Party members of parliament who were sympathetic to the claims of fathers’ rights groups generated resistance to feminist interventions (Boyd and Young, this volume) as did the opposition of mainstream media and pro-business organizations to most forms of social investment (Wiegers 2002, 20). Perhaps more importantly, the decline in economic prospects for men through the loss of well-paying manufacturing jobs since the 1980s made it more difWcult to claim that women were disadvantaged. Even though women are still paid less than men on average and are disproportionately engaged in non-standard work


(Statistics Canada 2000, 103), “women’s claims to equality have less political resonance in an economic climate in which men’s employment conditions and prospects have deteriorated” (Fudge 2000, 339). Although governments have made selective investments towards the relief of child poverty, as discussed later in this chapter, initiatives have remained woefully inadequate in several policy areas that have a profound impact on both women and children. First, for most of the last four decades, political leaders have been highly resistant to demands to socialize childcare despite marked increases in the labour force participation of mothers. The lack of this service is clearly a central problem for most low-income women (National Council of Welfare 1999), causing disruptions in employment, high levels of stress, and inadequate care of children. The expansion of employment in the low paid service sector since the 1980s, where shift work and evening and weekend work are common, compounds these difWculties. In 2005, the Liberal federal government began to move towards implementation of an Early Learning and Child Care initiative, which was intended to contribute $5 billion over Wve years to the provision of high quality, universally inclusive, accessible, and developmental childcare. The new Conservative government cancelled this initiative and introduced a taxable Universal Child Care BeneWt (UCCB) of $1200 per year payable to the primary caregiver of children under six, along with monetary incentives to business and community organizations to create daycare spaces. As Ken Battle (2006) notes, the UCCB favours one-earner families over dual-earner and single-parent families with the same income (since tax is payable by the spouse having the lowest income) and high income relative to most low and modest-income families (since it triggers the loss of some means-tested credits and child beneWts). However, the beneWt does restore some measure of horizontal equity between families with and without children and can beneWt dependent mothers where household income is not equitably shared. Nonetheless, as with tax deductions for child expenses, the UCCB covers only a small portion of childcare costs and is not likely to increase access to high quality and accessible childcare (Battle 2006, 6; National Council of Welfare 2006a, 84). Government policy has also not kept pace with the changes experienced by low-wage workers. Poverty rates tend to rise and fall along with economic cycles, but, conspicuously, over the last ten years of relative economic growth many households with earnings have remained poor because of a lack of full-time jobs and low wages (National Council of Welfare 2006b, 103). Women make up a greater proportion of low-wage employees and self-employed workers (Hughes 1999; Fudge, Tucker, and Vosko 2003). A range of concerns arise in relation to low-wage work including the extension of legal protections to self-employed women who work alone; the enhancement of minimal labour standards and wages; a need

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to extend existing or Wnd new forms of collective representation; and a need to revisit the norm of a worker without family responsibilities in light of the feminization of the low-paid workforce. Additional concerns include the lack of attention given to pay equity recommendations (Canada 2004b) and to reduced coverage and economic security for unemployed workers (Canadian Labour Congress 2005). Beyond the doubling of parental leave through reforms to employment insurance and the provision for unpaid family leave in some jurisdictions (Calder 2003), the NCB, which is discussed later in this chapter, has been the primary policy measure adopted to deal with the problem of low-wage work. Funding has also been inadequate in two other areas of provincial jurisdiction that profoundly affect women and children living in poverty: child welfare and social assistance. Low-income families tend to constitute a disproportionate percentage of clients of the child welfare system (Swift and Parada 2004, 8). The provincial initiatives to support children at risk so far as possible within their families and cultural communities that began in the 1980s have since been either reversed or critically undermined by a severe lack of funding (Lessard 2001, 749; Swift and Parada 2004). In many provinces, parents in the late 1990s both received less support in improving their capacity to care for their children and faced the risk of an earlier termination of their rights (Bala 2004, 9). Finally, recipients of social assistance have largely borne the brunt of the backlash against substantive equality and have effectively been constituted as second-class citizens under welfare regimes (Mosher 2007). A strong current of anti-welfare sentiment has been rationalized by viewing welfare as a disincentive to paid work and as an efWciency loss or cost. Social assistance beneWts have either been cut or eroded by inXation, resulting in rates as low as one-third of the pre-tax low-income cut-off for unattached individuals and one-half to 60 percent of the cut-off for households with children in most provinces (National Council of Welfare 2006a, 30).4 Expansive deWnitions of households and an emphasis on punitive enforcement has reduced economic independence for women and increased regulation of their lives (Abell 2001; Chunn and Gavigan 2004). Moreover, in the name of promoting “independence,” workfare has become a common feature of welfare regimes, and mothers have increasingly been subjected to work incentives and requirements (Evans 1995; Scott 1996). As a result of the construction of mothers receiving welfare as workers, the beneWts of their domestic labour and the contradictions they experience between paid and unpaid labour have been rendered increasingly invisible, as have other gender-speciWc constraints on employment. In what follows, I trace the simultaneous emergence of a shift in favour of child-centred social policy and examine the likely effects on women and children of speciWc initiatives intended to address child poverty.


Federal Child-Centred Social Policy Although concerns about child poverty were prominent at the turn of the twentieth century, this issue was not on the social policy agenda in the 1960s, when the welfare state was expanding. The National Council of Welfare’s publication of Poor Kids in 1975 marked the Wrst effort by a government advisory board to isolate and examine the experience of poor children in Canada. In the early 1980s, Statistics Canada Wrst began to record systematically the number and percentage of children living in households with pre-tax incomes below the low-income cut-off. This practice revealed an alarmingly high incidence of child poverty that increased to almost 21 percent in 1984, dropped to 15.1 percent in 1989, and then climbed to 23.6 percent in 1996 (Statistics Canada 2006b). The rate thereafter declined to 17.2 percent in 2001 and rose slightly to 17.7 percent in 2004 (Statistics Canada 2006b). Poverty rates for Aboriginal, immigrant, and visible minority children have been substantially higher than the average (Wiegers 2002, 27-28; Campaign 2000, 2004). These statistics demonstrate that child poverty is clearly a signiWcant component of poverty. However, children have never constituted the majority of persons living in poverty, and the number of children as a percentage of the total Canadian population is declining.5 Along with the “discovery” of child poverty, international developments, most prominently the adoption of the international Convention on the Rights of the Child by the UN General Assembly in 1989, increased consciousness of the rights and needs of children. Article 14 explicitly recognizes the “right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.” In debates on the motion introduced by Ed Broadbent to seek to eliminate child poverty by 2000, members of the House of Commons repeatedly referenced this convention and unanimously passed the motion on 24 November 1989 (Commons 1989). Subsequently, several social policy organizations, particularly the coalition Campaign 2000, developed highly effective media strategies that targeted the government’s (lack of) progress towards achieving the goal of the parliamentary resolution. When then prime minister Brian Mulroney hosted the World Summit for Children in New York in October 1990, Canada had one of the highest child poverty rates (using the internationally recognized low income measure) of all industrialized nations – a ranking that has sadly remained relatively stable over time (Picot and Myles 2005, 12; UNICEF 2005). The summit nonetheless motivated a rhetorical emphasis on children and a commitment by national governments to develop action plans to improve children’s lives. In 1991, the federal government established the Children’s Bureau and, in 1992, issued an action plan that identiWed reducing the numbers of children living in low-income households and reducing

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conditions of risk as two areas of highest priority (Canada 1992, 41). The 1992 hearings on the targeting of child beneWts and the 1994 Social Security Review both focused on child poverty, excluding all traces of a discourse on women and poverty (McKeen 2004, 102-4). During the 1990s, public opinion polls consistently indicated that the vast majority of Canadians agreed that reducing child poverty should be a top government priority (Human Resources Development Canada 1994, 1997). In the early 1990s, reports on child poverty were issued by both a House of Commons committee (1991) and a Senate committee (1991). According to Maureen Baker (1997, 166), both committees deliberately chose to address child poverty rather than poverty more generally largely in order to avoid intractable debates on the worthiness of individuals living in poverty: “If the focus is on children, no one can blame their poverty on laziness, lack of job skills or defrauding the employment system.” However, a second report of the House of Commons committee (1993) ended up largely discounting the problem of child poverty itself by rejecting the use of the low-income cut-offs established by Statistics Canada to deWne poverty and disregarding the correlations between harmful outcomes for children and families under the pre-tax low-income cut-offs (Ross and Roberts 1999). The committee also obscured the relationship between gender inequality and child poverty by attributing income inequalities to entrepreneurial risk taking, educational pursuits, choice of area of residence, age distributions, and low incomes for immigrants on arrival in Canada (Commons 1993, 69). Social policy groups boycotted the 1993 committee hearings, and its report was largely discredited in light of a widespread conviction that child poverty was an issue of national priority. In the next section, I argue that a number of implicit assumptions about children as innocent dependents likely sustained pressure for a government response. SigniWcantly, however, the 1991 reports and a 1989 Senate committee report also emphasized the long-term social costs of childhood poverty. The latter report found that multiple risk factors associated with child poverty increased the probability of psychological disorders, juvenile delinquency, illiteracy, and poverty in adulthood (Senate 1989). Children were also increasingly deWned as economic investments in Canada’s future in light of increased global competition, the heightened demands of a knowledge-based economy (Senate 1989; Senate 1991, 6), and changing demographics, including a declining birth rate and a large prospective retirement population (Senate 1989). Identifying children in terms of their future economic potential as workers and taxpayers recognizes that children are ultimately vital inputs in the production process, not just private items of consumption. However, if children are deWned exclusively in these terms, their present value as children can be ignored (Phipps 1999, 1158) and respect for differences


in emotional, physical, and intellectual abilities undermined. Moreover, a human capital approach can also reXect and reinforce a narrow individualistic focus by highlighting individual skills acquisition and socialization processes within the family as primary determinants of poverty. A number of contemporary expert discourses tend to support such an emphasis. In addition to neurobiological research identifying the early years as “the most critical time to promote human competence and potential,” numerous studies have engaged with the link between childhood poverty and the intergenerational transmission of poverty and welfare dependency (Federal/ Provincial/ Territorial Advisory Committee on Population Health 1999b, 88). Miles Corak and Andrew Heisz (1998, 15), for example, attempted to justify putting child poverty “at the centre of policy development” since “[b]eing raised in a poor family somehow predisposes individuals to a lifetime of poverty” and “is an important element in the development of an ‘underclass’ or ‘culture of poverty.’” The suggestion is that the relationship between childhood experience and adult poverty may be the outcome of adverse socialization processes transmitted intergenerationally through the family rather than low income itself. In an assessment of investment strategies pursued by the Blair government in the United Kingdom, Alexandra Dobrowolsky (2002, 44) argues that the child is the perfect vehicle for social mobilization around improving the nation’s productive potential and competitive position. The child not only serves as a focal point for optimism and a sense of collective responsibility but also, having no “speciWc gender, race or class,” is easily linked to an individualistic model of equality of opportunity, freedom, and choice (48). In the United Kingdom, a more active social investment state is emerging with strategic investments in children as the centrepiece. According to Jane Jenson (2001b), Canadian policy makers are likewise engaged in a process of situating “the child” as the focus of private and collective responsibility and thereby shifting the meaning of equality. In the mid-1990s, ofWcials from provincial, territorial, and federal governments came together under the framework of the “social union” to “reform and renew Canada’s system of social services and to reassure Canadians that their pan-Canadian social programs are strong and secure” (Canada 2000b). A broad consensus was reached that one of the Wrst priorities of the social union would be children in poverty. From 1994 on, most signiWcant anti-poverty policies pursued by the federal government in consultation with all of the provinces and territories except Québec6 were advanced in the name of children and made available only to parents. Under the National Children’s Agenda, governments agreed on promotion of a number of areas to ensure that Canadian children have “the best possible start in life,” including early childhood development, parental supports, and increased income security for families (Canada 2004a and 2000c).

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Specific Federal Measures SpeciWc measures adopted to help reduce child poverty included more rigorous enforcement of private support and the development of the Child Support Guidelines (CSG) in 1997, the NCB in 1998 (including a nontaxable supplement for low-income families), and the Early Childhood Development Initiative (ECDI) in 2000. While state investments of any sort appear inconsistent with a privatization agenda, these policies reXect in many ways the neo-liberal emphasis on capital accumulation and individual responsibility. All of these investments reXect not only implicit assumptions about children as innocent and natural dependents (and thereby legitimate exceptions to the principle of individual responsibility) but also, increasingly with the ECDI, a perception of children as sites of human capital formation that can be linked to enhanced economic productivity and growth. The policies adopted serve to mediate the tension between the standard of living of families and the drive for proWt, but they do so largely by subsidizing the cost of labour to employers. Generally, these investments also reXect an individualistic conception of the causes and solutions to poverty with beneWts contingent on individual compliance with dominant norms of responsible behaviour. Thus, the over-riding policy concerns have been privatizing support within families, providing incentives for employment, correcting inadequate parenting, and directly targeting children to produce better workers. Unfortunately, none of these measures has had a substantial impact in reducing the poverty of mothers or their children. Although the guidelines have raised awards on average, they have not likely reduced child poverty substantially (Millar and Gauthier 2002; Wiegers 2002). The amounts paid under the CSG depend on the income of payors and are assessed independently of custodial parents’ needs and the barriers to securing good employment (Robson 2004). Most poor children live in poor two parent households, and, upon separation, most fathers are limited in their ability to pay support (Mossman 1997, 76). In addition, for mothers and children reliant on social assistance, child support is typically clawed back from social assistance and used to reduce government expenditures. Unless the support payment exceeds the welfare payment, the household generally is not better off. Lack of funding for legal aid and concerns regarding a heightened risk of violence or harassment in the case of abused women may also impede support claims. These outcomes are largely consistent with feminist critiques of the privatization of support through family law reform (Eichler 1990; Mossman 1997; Boyd 1997). Since the NCB actually does supplement low income in addition to providing an array of provincial reinvestments,7 its beneWts for many women and children should not be underestimated. Since beneWts are generally delivered from outside the welfare system, the NCB also helps to move


some recipients off welfare and to free them of intrusive and stigmatizing regulation. Nonetheless, the initiative has not substantially reduced poverty rates (Wiegers 2001-2; Lefebvre and Merrigan 2003; Paterson, Levasseur, and Teplova 2004). According to the 2004 progress report (National Child BeneWt 2005b, 42-43 and 95-96), the supplement and income beneWts from provincial investments directly reduced the incidence of post-tax low-income families in 2002 by only 1.2 percent, from 12.3 percent to 11.1 percent of all families. This small decline suggests that the greater portion of the 6 percent drop in overall child poverty rates between 1992 and 2002 is likely due to increased earnings. The extent to which increased earnings are the outcome of incentive effects generated by the NCB or the economic recovery generally is uncertain; however, poverty rates generally decline substantially with improved economic conditions (Wiegers 2001-2). In terms of child poverty as a whole, moreover, the pretax rate of 17.7 percent in 2004 remains higher than the rate of 15.1 percent in 1989, when Parliament passed the resolution to work towards the abolition of child poverty (Statistics Canada 2006b). The impact of the NCB on poverty relief is limited primarily because of the huge depth of poverty (the income of low-income families on average falls about $9,000 short of the cut-off) (Statistics Canada 2006b) and because families reliant on social assistance (who constitute about a third of low-income families with children) (National Child BeneWt 2005a, 18) have received little by way of monetary beneWts. Since 1997, most provinces and all territories, with the encouragement of the federal government, have fully or partially clawed the supplement back from amounts otherwise paid out as child allowances under social assistance or as a provincial child beneWt (National Child BeneWt 2005b, 12-14 and 24) and “reinvested” these funds in programs for low-income families.8 Recipients may beneWt from services provided under reinvestments, although many of these services (for example, earned income supplements) are contingent on employment. Financially, many recipients can beneWt only from indexation and enhancements to the supplement that exceed the child allowances paid under social assistance. However, even where provincial governments have not directly deducted the supplement, other freezes or cuts in social assistance rates have often offset its impact. Comparing total welfare incomes in 1997 before the introduction of the NCB with those in 2005 and adjusting for inXation, the National Council of Welfare (2006a, 57) found that in 2005, two parent households had lower incomes in six jurisdictions and lone parents had lower incomes in all but three. The treatment of social assistance recipients partly reXects the priority accorded to promoting attachment to the labour force and thereby reducing expenditures on social assistance.9 Thus, a primary policy objective of the clawback has been the provision of Wnancial incentives to leave social

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assistance by ensuring that “families are always better off by working” (National Child BeneWt 2005a, 6; Canada 2000a, 3). Payment of child beneWts outside of the welfare system to all low-income families regardless of their income source has been advanced as a way of “level[ing] the playing Weld” (Canada 2000a, 3) as well as a means of protecting children from the stigma of welfare (Senate 1991, 13, 25, and 26; Ontario 1989, 115). The provision of Wnancial incentives is clearly important. However, the emphasis on paid work through the clawback ignores the need for (and social value of) unpaid domestic labour and ignores other constraints on labour force participation that make it difWcult, if not impossible, for substantial numbers of women to respond. Ongoing constraints include a lack of trustworthy, affordable, and accessible daycare, poor health, inXexible work hours and conditions, language barriers and racism, insecure jobs and housing arrangements, transportation difWculties, unsafe neighbourhoods, wife abuse, and abysmally low welfare rates that undermine the physical and emotional health of recipients. Moreover, incentives could be provided through alternative measures such as minimum wage increases, targeted tax cuts, and socialized childcare. Between 2000 and 2004, the federal Liberal government also committed a total of $3.2 billion to the ECDI, an initiative intended to provide community-based programming to promote healthy pregnancy, birth, and infancy and to strengthen parenting supports and early childhood development (First Ministers Meeting 2000).10 In promoting early childhood development, the government relied to a signiWcant degree on the work of human capital theorists. James Heckman and Lance Lochner (2000, 78) claim that childhood is the most economically efWcient point of intervention in human capital formation, primarily because early investments in skills can be recouped over a longer life span and provide a foundation upon which other skills can be acquired. They argue that intensive early education programs in the United States have generated higher marginal returns than adult training programs, largely through cost savings linked to improved motivation and social skills. Heckman and Lochner (78) and Pierre Lefebvre and Philip Merrigan (2003, 53) accordingly advocate the reallocation of state resources away from training programs for low-income adults in favour of greater investments in early childhood development. While it is unclear whether the ECDI has shifted resources away from low-income adults, many of the programs supported by the initiative appear to minimize the levels of public responsibility and expenditure while potentially enlarging the individual responsibility of mothers. For example, many, if not most, programs are targeted to poor and at risk populations and concentrate on the screening of infants, prenatal and parenting courses, and early childhood development rather than on the public provision of childcare (Yalnizyan 2005, 68). Since low-income families


are less able on average to provide an environment that optimally stimulates children, targeted programs of this nature can empower women and children by improving parenting skills and providing networks of support (Ames 1997). However, poor women also face signiWcant risks such as the potential for enforced participation, invasions of privacy, and overall increased burdens. Mothers on social assistance especially may experience such programs as imposing simply one more arena for surveillance. Moreover, early childhood development programs also tend to reinforce assumptions that poverty is the result of parental deWcits or limited human capital and that early intervention can offset structured inequalities in economic power and well-being. A human capital approach, for example, assumes that the bad jobs produced in abundance in the new economy are simply a function of low levels of individual skill or training rather than products of economic restructuring, poor bargaining power, and systemic discrimination (Rittich 2004, 45-47). Parents in this individualized perspective are also easily constructed as impediments to development of their children’s optimal potential, even though dangerous neighbourhoods, inadequately funded schools, housing instability, racism, unemployment, lack of reliable childcare, and adverse conditions of employment are factors over which they have little control. In short, as dominant tools in the struggle against poverty, such initiatives can disconnect poverty from the systemic factors that determine both its overall magnitude and its distribution among social groups rather than individuals and families. Finally, while the recently cancelled Early Learning and Child Care initiative provided some evidence of a willingness to shoulder some of the childcare costs disproportionately borne by women, advancing women’s equality was notably not among the justiWcations advanced by the Liberal government for the investment. Rather, the investment was justiWed wholly in terms of producing better educational and developmental outcomes for children.11 The gendered labour of childcare has also been largely invisible in the policy discourse surrounding the Conservative government’s cancellation of this initiative and controversy over the impact of Québec’s universal daycare (for example, Richards and Brzozowski 2006). This exclusive focus on child outcomes suggests a continued resistance to acknowledging substantive inequality for women. In summary, although the above-mentioned policy initiatives have had some positive impacts, their overall effect has been limited. Since poverty is a condition that children share with their caregivers, programs that target children only will not generally be sufWcient to end the poverty of either mothers or children. The policy initiatives reviewed have not generally included childcare costs in the assessments of the “costs of children” or removed other gendered and systemic barriers to relief from poverty. A further concern is that the policies fail to adequately address

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the most serious cases of need. The mothers and children receiving the greatest beneWts overall are generally those who can access employment income and/or child and spousal support, either before or after a divorce. The mothers and children receiving overall the least monetary beneWts to date and potentially facing the greatest risks from child development initiatives are those reliant on social assistance. Although paradoxical, these outcomes are not accidental. As I show next, the assumptions underlying the child poverty framework participate in, and reinforce, the broader construction of social assistance recipients as undeserving. The Limits of a Child-Centred Anti-Poverty Strategy Wendy McKeen (2004, 97) has argued that policy interest coalesced around children in the 1980s in large part because signiWcant actors within the Left-liberal social policy community reworked the subject of poverty to highlight child poverty: “[P]rogressive actors felt compelled to modify their discourses and stances in order to continue to have a voice, and thus, have unwittingly, lent their support to the neo-liberal model.” This “new gender-blind approach to social policy” was reinforced by the withdrawal of the institutionalized women’s movement, hobbled by serious funding cuts, from the debate around child beneWts and income security (McKeen 2004, 89, 94-97, and 135). Several child poverty activists have admitted to the strategic use of child poverty rhetoric in the 1980s and 1990s as “the most effective way to capture public attention in a short period of time” (Popham, Hay, and Hughes 1997, 228; Wiegers 2002, 19). Drawing attention to children is useful not only because of their “sheer cuteness” and a possibly instinctive desire on the part of adults to protect them. Activists also believed that focusing on child poverty could avoid protracted debate on whether individuals were needy or deserving and could be used as a wedge to expand assistance for all people living in poverty. Since children could not credibly be held responsible for their own poverty, child poverty was a strategic response to the neo-liberal model of individual responsibility. There are a number of potentially progressive aspects to making child poverty visible. Although most people living in poverty are adults, child poverty is an important component of poverty, and children often suffer serious and irremediable consequences from poverty. Ideologically, the foregrounding of children also recognizes that they have interests of distinct social importance and are not just appendages of their parents. Organizations such as the Child Poverty Action Group portrayed children as individuals with rights, in particular, an independent right to social provision. Making child poverty visible was thus part of an attempt to advance solutions to poverty that could institutionalize collective, not just private, responsibility for children.


During the 1990s, some activists also attempted to advance a “gendered conception of child poverty” and to link the causes of children’s poverty with women’s inequality and the care of children (Freiler and Cerny 1998). Not only are the causes of poverty for women and children the same, but some evidence also indicates that mothers are more likely than fathers to spend their income on children and thus more likely to ameliorate their children’s poverty (Wooley 2004). These strategies, like those of maternal feminists, presented the empowerment of women primarily as a vehicle for improving child welfare. Unlike maternal feminists, however, Christa Freiler and Judy Cerny (1998) were not advocating (re)positioning women in the traditional family. UNICEF’s global campaigns have similarly cited women’s empowerment as key to the eradication of child poverty. The pressure to discuss poverty as an issue of harm to children is understandable as a coping strategy in a political and economic climate increasingly hostile to income redistribution. However, the policies adopted ostensibly to reduce child poverty did not go nearly as far as many child poverty activists had hoped. As discussed, government policy was inXuenced by other agendas such as economic efWciency and shaped by the underlying norms of restructuring. Government ofWcials used only parts of policies promoted by activists and, over time, ignored more progressive factions (Phillips 2001, 27). Child poverty activists of course are not responsible for the singular focus on child poverty, the limited policy solutions, or the conditions that made a child-centred focus appear to be a strategic necessity. That said, a child poverty focus, in itself, was profoundly limiting in critical ways. Driven by strategic concerns, it accepted the terms of reference of neo-liberalism and ended up constrained by the same internal logic. Most obviously, a child poverty focus contributed to the erasure of women by narrowing the scope of the problem of poverty. Child-centred strategies beneWt women only indirectly and, then, only as mothers of children, not as mothers of adults, carers of the elderly or disabled, or as members of groups subordinated in many different ways. Moreover, these discursive conditions disempower mothers from speaking of the injustice of their own poverty rather than that of their children and limit both what can be said or heard about poverty. The invisibility of women is part of a broader erasure of the suffering of diverse groups of adults in poverty. As I explore in the next section, a child poverty focus not only contributes to the profound silence around the suffering of adults in poverty but also reinforces the construction of adult need and dependency as deviant. The focus thus drives us further away from the recognition of a basic human right to freedom from poverty while countenancing a large degree of inequality, social injustice, and disenfranchisement.

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Adult Dependency as Deviance: The Child as a Natural Dependant The dominant focus on child poverty both reXects and reinforces a fundamental norm of neo-liberalism and welfare reform, namely that of selfreliance and adult independence from state assistance. A child poverty focus relies on what is widely perceived as a natural and inevitable difference between adults and children – the fact that children depend on adults for their material well-being and need satisfaction. The use of the age differential serves to naturalize the economic dependence of children and renders adult dependence on state support unnatural and deviant. It is difWcult to contest the construction of children as economically dependent and therefore deserving of state provision. However, reliance on an image of children as simple dependants obscures the fact that children often make signiWcant contributions to the economy notwithstanding imposed constraints. At the same time, by reinforcing the idea that the only inevitable or justiWable source of dependency is childhood, a focus on child poverty in state policy and discourse obscures the dependencies experienced by adults (Fineman 2000). Indeed, as Nancy Fraser and Linda Gordon (1994) argue more generally, the focus on child poverty obscures pervasive interdependency as a social norm, particularly forms of market dependency such as employee dependence on employers and corporate dependence on government subsidies, infrastructure, research and development, tax incentives, contract and property law, and, not least, on women’s caring labour for the rearing of future workers. The construction of employment as the deWning condition of independence both masks subordination in the employment relationship and implicitly assumes the legitimacy of labour market outcomes and equal opportunity in the competition for jobs. Moreover, while welfare is not problem free, the negative construction of welfare dependency fails to acknowledge the extent to which state suppprt can provide independence from abusive husbands and exploitive employers and from the stressful and irreconcilable demands of both paid and unpaid labour (Wiegers 2002; Mosher, Evans, and Little 2004). When poverty is framed in terms of child poverty – as a special case for protection arising from children’s distinctive status and vulnerabilities – the underlying norm of (adult) self-sufWciency tends to go unrecognized and unchallenged. As Martha Minow (1990) suggests, unquestioning acceptance of an underlying norm impedes the process of creating alternative norms and workable solutions. It also masks the fact that the norm is constructed by those with power and expresses a particular point of view. A norm of adult self-sufWciency is obviously most reXective of the experience of members of privileged social groups. A child poverty focus implicitly presents adult dependency as an outcome of individual conduct or choice and not the predictable product of social relations largely beyond


individual control. Ignored in this perspective are the intersecting structural conditions that systemically generate dependency for adults and children who are members of subordinate groups. While constructing children as dependants deserving of state support, the adult-child distinction can paradoxically obscure the gendered social relations upon which children primarily depend. By making children’s “natural” dependency the ideological basis for state support, the distinction between adult and child implicitly identiWes engagement in paid employment as the paradigm of self-sufWciency. In this move, the structural inequalities that distinguish women from men, such as women’s disproportionate share of unpaid domestic responsibility for, among other things, children’s dependency, disappear as issues worthy of public policy attention. In this way, a child focus reinforces a formal vision of gender equality. Entrenching an Idealized Notion of Victimhood Related to the dominant view of children as dependants is the conception of children as innocent and deserving – as passive and inherently vulnerable victims who have not chosen, but merely been cast into, poverty. Whereas children are implicitly presented as the involuntary poor, adults are those who choose or are responsible for their impoverishment. The viliWcation of adult recipients of social assistance especially resonates with, and reinscribes, the historical distinction between deserving and undeserving poor. In her study of the impact of the rhetoric of homelessness, Lucie White (1990-91, 304) argues that passive, vulnerable images of poverty prompt feelings of “superiority, aggression, and rescue,” which underlie a charitable impulse. In her assessment, charity too often provides desperately needed goods “in exchange for gratitude, dependency, and humiliation.” Highly disturbing emotional imagery can also skew policy away from the long term towards ad hoc band-aid solutions, obscure the more mundane everyday impact of poverty, and, over time, produce a numbing effect. Arguably, the focus on child poverty has already lost some of its salience as a result of repeated use and exposure. Most problematically, White argues, passive, vulnerable images of poverty entrench an ideal notion of victimhood. Given the dominant Western vocabulary of child protection, framing poverty as child poverty entrenches a similarly problematic conception of victimhood that is associated with passivity and a lack of choice or agency. This portrait is largely inconsistent with the experience of real victims of poverty – both adults and most children. Arguably, to conceive of children wholly as innocent victims, they must be rendered almost completely passive and vulnerable. They cannot be perceived as active, moral agents who also require support and guidance in shaping their lives. However, with the exception of very young children, most real victims of poverty

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protest, resist, or adopt coping strategies to deal with the structural constraints they face. As a result of the dominant construction of victimhood, such displays of agency are either denied (as is most often the case with children), pathologized (as is most often the case with women), or relied upon to portray poor persons as “undeserving” of state support and authors of their own misfortune. Removing most adults from the category of victim also constitutes a denial of the physical and psychic costs of their poverty. Research shows that adults suffer many negative effects of poverty including reduced life expectancy and lower levels of physical and emotional health (Federal/ Provincial/Territorial Advisory Committee on Population Health 1999a). Women, especially, are more likely to sacriWce their own physical wellbeing for that of their children (Burman 1996). The focus on child poverty also reXects a stark and simplistic dichotomy between passive/active and choice/no choice that “draws attention away from the complexity of the middle ground between force and freedom” ( Johnson 2000, 211). Such a focus, like that of laissez-faire market ideology, is consistent with a formal model of equality that presupposes equal and autonomous choice in the absence of direct or overt force. Although this notion of victimhood generally excludes adults, they may qualify for assistance in exceptional cases – insofar as they too can be viewed as completely helpless, vulnerable, and inarticulate. Disability theorists suggest that “in order to represent people with disabilities as deserving of public charity, mainstream theories of social justice tend to reproduce pervasive cultural stereotypes of them as dependent, childlike and unable to provide for themselves” (Roeher Institute 2001, 10). Perceptions of passivity and vulnerability have likely made it easier in the past to pathologize or infantilize recipients of welfare and to perceive them as child-like individuals who must be trained or forced to be economically self-supporting. Such controlling and paternalistic responses can be subtly reinforced both by an ideology of white supremacy that constructs non-white men and women as child-like and intrinsically inferior and by white-gendered stereotypes of women as dependent and passive. While passivity represents a traditional stereotype of white middle-class women, feminist accounts of male violence suggest that it has always been difWcult for women to present as ideal victims. Currently, given the decline in male wages and the partial successes of the women’s movement, it appears even more difWcult to make such a claim on behalf of women as a group. In the context of complaints about “victim feminism” and claims of victimization by men’s rights groups, women are no longer readily pitied as powerless, inarticulate victims. In the welfare context, the notion of “moving kids off welfare” through the removal of child allowances can serve to reinforce negative stereotypes of recipients. Welfare, as such, increasingly


comes to represent a pool of adults, male and female, who are deviant, lazy, or in some sense blameworthy. Indeed, in the shift towards “libertarian neo-liberalism” in some jurisdictions, Dorothy Chunn and Shelley Gavigan (2004, 231-32) identify a “huge expansion” in the traditional category of undeserving poor to the point where “virtually no one is considered ‘deserving.’” A construction of victimhood as passive also insulates social and economic privilege from challenge. Charitable responses “fundamentally preserve the pattern of relationships in which some people enjoy the power and position from which to consider – as a gift or act of benevolence – the needs of others without having to encounter their own implication in the social patterns that assign the problems to those others” (Minow 1990, 219). Michael Katz (1989, 186) has noted how homeless persons traditionally were regarded as deserving “as long as they remained supplicants rather than militants, objects of charity rather than subjects of protest.” Of course, children, particularly young children, are more easily cast in the role of pure supplicants who can be pitied but not feared because they do not threaten the basic social order. Since children are perceived as unable to speak for themselves, they also cannot be readily dismissed as a special interest group that is acting opportunistically in the way women’s or Aboriginal groups have been dismissed. Indeed, if victimhood is deWned by a state of innocence or helplessness, then victims will by deWnition be those least able to challenge the social position of those who provide rescue. Casting children as ideal victims of poverty thus means that privileged adults (both men and women) are less apt to be “legitimately” challenged and can more easily be celebrated for their benevolence. In this way, the charitable response and ideal notions of victimhood do as much, if not more, to legitimize and insulate privilege as to contest it. The underlying challenge is to see people living in poverty as social actors who respond to the complex structural barriers in their lives in various ways. One may challenge or criticize some of these responses, but poverty itself cannot be eradicated unless structural conditions are addressed. Moreover, in order to change individual responses to poverty, people need hope – a realistic sense of the possibility of change – and support. As Sherene Razack (1998, 130) has argued in relation to women with disabilities, one needs to move “beyond pity to respect” for people living in poverty and change the social response to poverty from that of rescue to social justice. Mother Blaming Activists in the 1990s viewed the focus on child poverty as a way of avoiding intractable debates regarding the (un)deservingness of people living in poverty (McGrath 1997). The hope was that singling out children for

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separate policy attention would avoid these debates by rendering adult/ maternal misbehaviour irrelevant to a child’s right to relief (Kitchen 1995). Unfortunately, a focus on the presumed innocence of children does not necessarily pre-empt debate on deservingness or may not do so in constructive ways. To the extent that an emphasis on child poverty limits debate, it may make it more difWcult for mothers to be heard, reinforcing their sense of social exclusion. It may also allow negative stereotypes to Xourish and fallacious assumptions about undeservingness to remain uncontested. Equally important, the conceptual separation of the interests of mothers and children belies the obvious fact that these interests are closely linked and overlooks the critical importance of maternal well-being to the welfare of children. To be effective, child-centred policies need to support the relationships between children and the signiWcant adults in their lives (Schorr 1997, 6-7). Contrary to the expectations and hopes of child poverty activists, a child poverty focus has in any case not proven useful in avoiding debates on deservingness. Indeed, as argued earlier, a focus on child poverty has likely facilitated the identiWcation of adults as “undeserving.” As child poverty activists have acknowledged, many think tanks and journalists over the 1990s identiWed “family failure and/or parental responsibility” as primary causes of child poverty (McGrath 1997; Freiler and Cerny 1998). If children are poor because their parents are poor, the central issue of whether parents are responsible for their family’s poverty is inevitably engaged. The tendency to scrutinize parents is also strongly reinforced by dominant familial ideology that assigns primary responsibility for children to their parents. Precisely because the lives of children and their mothers are so profoundly linked, the focus on children inevitably evokes questions regarding the role and conduct of mothers in particular. The fact that state discourse on poverty is ofWcially gender neutral suggests that mothers generally are not credited for their greater role in caring for children. However, given the disproportionate responsibility actually assumed by mothers as well as widely internalized norms of motherhood, mothers are most apt to be blamed for adverse child outcomes. Although the increasing number of dual-earner households has challenged the necessity of full-time mother-care, the dominant ideology of motherhood still constitutes an effective form of discipline, one that accounts for the guilt, strain, and role conXict experienced predominantly by employed mothers. Mothers are particularly liable to the stigma of being selWsh, “bad mother[s]” and are subject to standards that are increasingly subtle and complex (Smart 1996). As a result of the way white, middle-class, heterosexist standards deWne the norms of motherhood, poor, single, often racialized mothers are most likely to face greater difWculty in meeting the norms and face greater scrutiny and blame (Kline 1993; Roberts 1993; Swift 1995).


Anna Korteweg (2003) suggests that the implementation of workfare and more draconian welfare reforms in the United States were motivated in part by negative cultural stereotypes of poor women as poor mothers. Although cultural ambivalence in some measure remains regarding a work expectation for middle-class mothers, no such reticence exists in relation to poor mothers or those receiving social assistance. In examining an American work-training program, Korteweg found that the operating assumption was that a “good mother” is, in fact, an employed or “working” mother. Discursive strategies included the construction of an ideal workercitizen and the promotion of paid work as a pragmatic choice leading to a well-paying career, increasing children’s respect for their mothers, and avoiding the intergenerational transmission of poverty. Structural obstacles such as the lack of Xexible, twenty-four-hour daycare, transportation problems, and the realities of being both a low-wage worker and a single mother were masked or minimized. The contradictions between paid and unpaid labour continue to plague mothers, most of whom are currently assumed to be able to meet both an ideal worker standard and the traditional standard of mothercare. However, middle- and upper-income women can minimize the adverse effects of these contradictions in multiple ways, including reliance on the low-cost domestic labour provided largely by low-income women and immigrant women of color. Low-income women, by contrast, and single mothers, in particular, are less able to negotiate Xexible and favourable conditions of employment and have fewer resources with which to manage these contradictions. A number of different policy options can reXect an element of mother blaming and rely on stereotypes of mothers as unable or unwilling to use their resources for the beneWt of their children or as unwilling to lift their families out of state dependency. Canadian policies in the 1990s embraced some of these options, especially in directing state assistance towards inkind services rather than income supports or towards measures that beneWt children independently of their parents. State policy can also withhold relief from both parents and their children as a way of providing incentives for parents to change their conduct. Although concerns with child poverty motivated the implementation of the mother’s allowance, remedies for children’s poverty were ultimately conditional on the deservingness of individual mothers (Struthers 1994; Little 1998). Arguably, the clawback of the NCB supplement denies some children monetary beneWts in order to provide their parents with work incentives. As a result of the concern with work incentives through high marginal tax rates, the poverty of children in the greatest need is not addressed, while children in households with signiWcantly higher incomes receive a net monetary beneWt. Children are obviously hurt by these outcomes, but they can be cast as

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victims of their undeserving mothers rather than as victims of state policy. Poor mothers can thus be constructed as obstacles rather than vehicles for relief of their children’s poverty, calling for incentives and surveillance or ultimately the removal of their children, all in the name of rescue (Swift 1995; Swift and Parada 2004, 15). The possibility of regulatory coercion is particularly relevant to poor, racialized women receiving social assistance, given both increased scrutiny and the prevalence of negative cultural stereotypes. Conclusion: Implications for Feminist Child-Centred Advocacy Strategies One of the risks of pursuing strategies more compatible with the “new political and ideological order” is that of “reinforcing the political purchase of that very discourse and the possibility that neo-liberals or neoconservatives may, in the next round, win on the same discursive terrain” (Cossman 2002, 214-15). A child-centred anti-poverty strategy has not only reinforced the political purchase of neo-liberalism but it has also failed to remedy child poverty. In addition to over three million adults, over a million children still live under the pre-tax low-income cut-offs, many in abysmal conditions far below the poverty line. A dominant concern with economic costs and employment incentives, a preference for broad-based tax cuts and debt reduction, and inadequate regulation of the low-wage labour market all contribute to such outcomes, but a child focus itself can help to legitimize them. Through its implicit reliance on an ideal notion of a helpless, dependent, and innocent victim as the basis for relief, a child focus reinforces the increasingly moralistic and individualistic tenor of poverty discourse and holds social assistance recipients, in particular, responsible for their children’s poverty. The targeting of social assistance recipients obscures the role of employers both nationally and globally, the effects of racism, and a myriad of gender-speciWc variables (including the demands of childcare itself ) in producing poverty for women and children. Both the narrow focus on children and the targeting of social assistance recipients undermine the claim to poverty relief as a human right or entitlement of social citizenship. A child-centred strategy may raise unique problems in the poverty context because it unduly narrows the scope of poverty as a social problem and because dominant images of children are aligned with stereotypes of ideal deserving victims. However, child-centred strategies are, by deWnition, limited in terms of their ability to enhance equality for women and should not be used to supplant a feminist agenda. In constructing women simply as vehicles for children’s welfare, such strategies can threaten and undermine women’s individual autonomy and inherent worth. In terms of promoting children’s welfare, an individualistic conception of children’s


needs can also obscure the importance of maternal well-being to the wellbeing of children and a myriad of social factors that impact adversely on child welfare. A children’s agenda could substantially improve conditions for both women and children if it included universal, accessible, and high quality childcare. The NCB could also substantially relieve poverty if beneWts were increased and extended to households receiving social assistance. However, a children’s agenda must be embedded within a larger social justice agenda that moves beyond a preoccupation with economic efWciency and productivity and acknowledges the substantive inequalities that shape and limit the lives of women and children as well as other subordinated groups. In the absence of a broader agenda, a singular focus on children can reinforce a narrower vision of equality that contains and displaces the broader political demands of feminists ( Jenson 2001a). In light of the potential to reinforce regressive interpretations, feminists must be careful about which norms to advance and how to advance them. Child-centred social policy will likely continue to be a prominent part of Canada’s “social union.” Women’s groups must continue to bring women to centre stage by arguing for an adequate income Xoor, supports for caregiving, and improved working conditions generally. Yet we must not withdraw from the debates that are centred on children. In engaging with the children’s agenda, we must not only make explicit the connections between women’s inequality and child welfare but also disrupt dominant notions of children as innocent, dependent objects of concern or merely passive sites of investment. In doing so, we can hope to facilitate the wellbeing of both children and women.

Acknowledgments Thanks to Judy Fudge for her encouragement, to Hester Lessard and Susan Boyd for their generous assistance as editors, and to Cindy Baldassi for research assistance in updating an earlier version of this chapter. Notes 1 This analysis draws on a more detailed account provided in an earlier work, but it has been updated, reworked, and extended in several respects (Wiegers 2002). 2 According to 1998 time-use surveys, women aged twenty to forty-four spent 72 percent more time on childcare than men (Clark 2001, 4 and 6). Women missed more days of employment for family reasons in dual-earner families, experienced more time stress, and accounted for most of the part-time employees and almost all full-time homemakers (Statistics Canada 2000, 110-11). 3 In 2004, 16.6 percent of women lived in a low-income household before taxes compared to 14.4 percent of men. The impact of childrearing is more apparent in higher pre-tax rates for single mothers (47.1 percent) compared to single fathers (22.2 percent) and unattached elderly women (38.1 percent) relative to men (29.1 percent) (Statistics Canada 2006b). 4 The low-income cut-off (LICO) represents the income level, adjusted according to family and community size, below which a household spends 20 percent more of its income

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5

6

7

8

9

10 11

on basic essentials (food, shelter, and clothing) than the average household. Using 1992 family expenditure data, households on average spend 44 percent of their after-tax income and 35 percent of their pre-tax income on essentials. LICOs then identify income levels at which 64 percent (post-tax) or 55 percent (pre-tax) is spent on essentials. For criticism of the post-tax LICO, which is now highlighted by Statistics Canada, see the discussion by David Ross, Katharine Scott, and Peter Smith (2000, 35-37). Children (up to the age of nineteen) constituted 26.2 percent of the population in 2002 and will likely account for only 21 percent by 2016 (Canada 2004a, 18). In 2002, 1,065,000 children lived in households under the pre-tax LICO compared to 3,152,000 adults (Statistics Canada 2004b). Québec has been at the forefront of similar initiatives but has not participated in the National Children’s Agenda because it claims exclusive jurisdiction over social programs. Québec also opted for a different child support formula that applies where both parties are resident in the province. The maximum annual supplement of $1,945 for the Wrst child (less for the second and subsequent children) is paid by the Canada Revenue Agency to the primary caregiver where family income is below $20,435, with diminishing amounts paid to families with incomes up to $36,378. The supplement, along with a basic child tax beneWt of about $1,255 per child, comprises the Canada Child Tax BeneWt (CCTB) (see http://www.national childbeneWt.ca/ncb/govtofcan4.shtml; Wiegers 2001-2; Paterson, Levasseur, and Teplova 2004, 141-43 for details). From 1997 to 2004, the federal government committed $152 billion in tax cuts and beneWts, most of which favoured the most privileged. Increased supports under the CCTB accounted for only $14.8 billion of these expenditures (Yalnizyan 2005, 52 and 92). New Brunswick, Newfoundland and Labrador, Manitoba (in stages since 2001), Nova Scotia (since 2001), and Québec (since 2005) do not offset the supplement (National Council of Welfare 2004, 14; 2006a, 56). Note that the basic child tax beneWt is not deducted from social assistance, and the recent Universal Child Care BeneWt has not yet triggered cuts in social assistance but did result in the loss of a $249 beneWt formerly paid under the CCTB. The NCB rewards exit from welfare not paid work itself. Exit is usually achieved through employment but can also occur through attachment to a breadwinner whose income brings the household above the welfare income threshold. See Canada, “Federal Provincial Territorial Governments ECD,” http://www.ecd-elcc.ca. See the Budget Plan (Chapter 4.1) of Budget 2005 prepared by the Department of Finance, http://www.Wn.gc.ca/budget05/bp/bpc4ae.htm. References Abell, Jennie. 2001. Structural Adjustment and the New Poor Laws: Gender, Poverty and Violence and Canada’s International Commitments. Ottawa: Canadian Feminist Alliance for International Action. Alanen, Leena. 1994. “Gender and Generation: Feminism and the “Child Question.” In Jens Qvortrup et al., eds., Childhood Matters, 27-42. Aldershot: Avebury. Ames, Lynda J., with Jeanne Ellsworth. 1997. Women Reformed, Women Empowered: Poor Mothers and the Endangered Promise of Head Start. Philadelphia: Temple University Press. Baker, Maureen. 1997. “Advocacy, Political Alliances and the Implementation of Family Policies.” In Jane Pulkingham and Gordon Ternowetsky, eds., Child and Family Policies: Struggles, Strategies and Options, 158-71. Halifax: Fernwood Publishing. Bala, Nicholas. 2004. “Child Welfare Law in Canada: An Introduction.” In Nicholas Bala et al., eds., Canadian Child Welfare Law: Children, Families and the State, 67-84, 2nd edition. Toronto: Thompson Educational Publishing. Bashevkin, Sylvia. 2002. Welfare Hot Buttons: Women, Work, and Social Policy Reform. Toronto: University of Toronto Press. Battle, Ken. 2006. The Choice in Child Care Allowance: What You See Is Not What You Get. Ottawa: Caledon Institute of Social Policy. Beauvais, Caroline, and Jane Jenson. 2001. Two Policy Paradigms: Family Responsibility and Investing in Children. Ottawa: Canadian Policy Research Networks.


Boyd, Susan B. 1997. “Challenging the Public/Private Divide: An Overview.” In Susan B. Boyd, ed., Challenging the Public/Private Divide: Feminism, Law and Public Policy, 3-33. Toronto: University of Toronto Press. –. 2003. Child Custody, Law and Women’s Work. Toronto: Oxford University Press. Brodie, Janine. 1995. Politics on the Margins: Restructuring and the Canadian Women’s Movement. Halifax: Fernwood Publishing. –. 1996. “Canadian Women, Changing State Forms, and Public Policy.” In J. Brodie, ed., Women and Canadian Public Policy, 1-28. Toronto: Harcourt Brace. Burman, Patrick W. 1996. Poverty’s Bonds: Power and Agency in the Social Relations of Welfare. Toronto: Thompson Educational Publishing. Calder, Gillian. 2003. “Recent Changes to the Maternity and Parental Leave BeneWts Regime as a Case Study: The Impact of Globalization on the Delivery of Social Programs in Canada” Canadian Journal of Women and the Law 15: 342-66. Campaign 2000. 2004. One Million Too Many: Implementing Solutions to Child Poverty in Canada 2004: Report Card on Child Poverty in Canada, http://www.campaign2000.ca/rc/ rc04/04NationalReportCard.pdf. Canada. 1992. Brighter Futures: Canada’s Action Plan for Children. Ottawa: Minister of Supply and Services. –. 2000a. National Child BeneWt Future Directions: A Statement by Federal/Provincial/Territorial Ministers Responsible for Social Services, http://www.nationalchildbeneWt.ca/ncb/ ncb-future_directions.shtml. –. 2000b. “Social Union Framework Agreement Review,” http://socialunion.gc.ca/ menu_e.html. –. 2000c. Supporting Families and Children: Government of Canada Initiatives, http://www. socialunion.gc.ca/menu_e.html. –. 2004a. A Canada Fit for Children: Canada’s Plan of Action in Response to the May 2002 U.N. Special Session on Children, http://www.hrsdc.gc.ca/en/cs/sp/sdc/socpol/publications/ 2002-002483/page00.shtml. –. 2004b. Pay Equity, a New Approach to a Fundamental Right. Ottawa: Pay Equity Task Force. Canada. Federal/Provincial/Territorial Advisory Committee on Population Health. 1999a. Toward a Healthy Future: Second Report on the Health of Canadians. Ottawa. –. 1999b. In conjunction with the Working Group on Healthy Child Development. Investing in Early Child Development: The Health Sector Contribution. Ottawa: Minister of Public Works and Government Services. Canada. Federal/Provincial/Territorial Family Law Committee. 1991. Child Support: Public Discussion Paper. Ottawa. –. 1995. Report and Recommendations on Child Support, Summary. Ottawa: Minister of Public Works and Government Services. Canada. First Ministers Meeting. 2000. “Communique on Early Childhood Development.” 11 September, http://www.scics.gc.ca/cinfo00/800038005_e.html. Canada. House of Commons. 1989. Debates. 34th Parliament, 2nd sess., vol. 5. –. 1991. Canada’s Children: Investing in our Future. Report of the Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women, Sub-Committee on Poverty. Ottawa. –. 1993. Towards 2000: Eliminating Child Poverty. Report of the Standing Committee on Health and Welfare, Social Affairs, Seniors and the Status of Women, Sub-Committee on Poverty. Ottawa. Canada. Senate. 1989. Child Poverty and Adult Social Problems. Interim Report of the Standing Senate Committee on Social Affairs, Science and Technology. Ottawa. –. 1991. Children in Poverty: Toward a Better Future. Standing Senate Committee on Social Affairs, Science and Technology. Ottawa. Canadian Labour Congress. 2005. Left Out in the Cold: The End of UI for Canadian Workers, http://canadianlabour.ca/updir/engintro.pdf. Chunn, Dorothy E., and Shelley A.M. Gavigan. 2004. “Welfare Law, Welfare Fraud, and the Moral Regulation of the ‘Never Deserving’ Poor.” Social and Legal Studies 13(2): 219-43.

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Clark, Warren. 2001. Economic Gender Equality Indicators 2000. Ottawa: Status of Women Canada. Convention on the Rights of the Child. 20 November 1989. 44 U.N. 6 AOR Supp. (No. 49) 167, [1992] C.T.S. Corak, Miles, and Andrew Heisz. 1998. “How to Get Ahead in Life: Some Correlates of Intergenerational Income Mobility in Canada.” In Miles Corak, ed., Labour Markets, Social Institutions, and the Future of Canada’s Children, 65-89. Ottawa: Statistics Canada. Cossman, Brenda. 2002. “Family Feuds: Neo-Liberal and Neo-Conservative Visions of the Reprivatization Project.” In Brenda Cossman and Judy Fudge, eds., Privatization, Law, and the Challenge to Feminism, 169-217. Toronto: University of Toronto Press. Cossman, Brenda, and Judy Fudge. 2002. “Introduction: Privatization, Law, and the Challenge to Feminism.” In Brenda Cossman and Judy Fudge, eds., Privatization, Law, and the Challenge to Feminism, 3-37. Toronto: University of Toronto Press. Day, Shelagh, and Gwen Brodsky. 1998. Women and the Equality DeWcit: The Impact of Restructuring Canada’s Social Programs. Ottawa: Status of Women. Dobrowolsky, Alexandra. 2002. “Rhetoric versus Reality: The Figure of the Child and New Labour’s Strategic ‘Social Investment State.’” Studies in Political Economy 69: 43-73. Drakich, Janice. 1989. “In Search of the Better Parent: The Social Construction of Ideologies of Fatherhood.” Canadian Journal of Women and the Law 3: 69-87. Eichler, Margrit. 1990. “The Limits of Family Law Reform or the Privatization of Female and Child Poverty.” Canadian Family Law Quarterly 7: 59-84. Evans, Patricia. 1995. “Single Mothers and Ontario’s Welfare Policy: Restructuring the Debate.” In J. Brodie, ed., Women and Canadian Public Policy, 151-71. Toronto: Harcourt Brace. –. 1998. “Gender, Poverty, and Women’s Caring.” In Carol Baines, Patricia Evans, and Sheila Neysmith, eds., Women’s Caring: Feminist Perspectives on Social Welfare, 47-68. Toronto: Oxford University Press. Fineman, Martha. 2000. “Cracking the Foundational Myths: Independence, Autonomy, and Self-SufWciency.” American University Journal of Gender, Social Policy and Law 8: 13-15. Firestone, Shulamith. 1970. The Dialectic of Sex. New York: Morrow. Fraser, Nancy, and Linda Gordon. 1994. “A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State.” Signs: Journal of Women in Culture and Society 19(2): 309-36. Freiler, Christa, and Judy Cerny. 1998. BeneWting Canada’s Children: Perspectives on Gender and Social Responsibility. Ottawa: Status of Women Canada. Fudge, Judy. 2000. “The Paradoxes of Pay Equity: ReXections on the Law and the Market in Bell Canada and the Public Service Alliance of Canada.” Canadian Journal of Women and the Law 12: 313-44. Fudge, Judy, Eric Tucker, and Leah F. Vosko. 2003. “Employee or Independent Contractor? Charting the Legal SigniWcance of the Distinction in Canada.” Canadian Labour and Employment Law Journal 10: 193-230. Guest, Dennis. 1997. The Emergence of Social Security in Canada, 3rd edition. Vancouver: UBC Press. Heckman, James J., and Lance Lochner. 2000. “Rethinking Education and Training Policy: Understanding the Sources of Skill Formation in a Modern Economy.” In Sheldon Danziger and Jane Wildfogel, eds., Securing the Future, 47-83. New York: Russell Sage Foundation. Hughes, Karen D. 1999. Gender and Self-Employment in Canada: Assessing Trends and Policy Implications. Ottawa: Canadian Policy Research Network. Human Resources Development Canada. 1994. Social Security Reform: Wave II Angus Reid Poll. Ottawa. –. 1997. Child Poverty Focus Groups: Final Report. Ottawa. Jackman, Martha. 1995. “Women and the Canada Health and Social Transfer: Ensuring Gender Equality in Federal Welfare Reform.” Canadian Journal of Women and the Law 8(2): 371-410. Jenkins, Henry. 1998. “Introduction: Childhood Innocence and Other Modern Myths.” In Henry Jenkins, ed., The Children’s Culture Reader, 1-37. New York: New York University Press.


Jenks, Christopher. 1996. Childhood. New York: Routledge. Jenson, Jane. 2001a. “Canada’s Shifting Citizenship Regime: Investing in Children.” In Trevor C. Salmon and Michael Keating, eds., The Dynamics of Decentralization: Canadian Federalism and British Devolution, 107-24. Montreal and Kingston: McGill-Queen’s University Press. –. 2001b. “Rethinking Equality and Rights: Canadian Children and the Social Union.” In Edward Broadbent, ed., Democratic Equality, What Went Wrong? 111-29. Toronto: University of Toronto Press. Jenson, Jane, Rianne Mahon, and Susan D. Phillips. 2003. “No Minor Matter: The Political Economy of Childcare in Canada.” In Wallace Clement and Leah Vosko, eds., Changing Canada: Political Economy as Transformation, 135-60. Montreal and Kingston: McGillQueen’s University Press. Johnson, Rebecca. 2000. “If Choice Is the Answer, What Is the Question?: Spelunking in Symes v. Canada.” In Dorothy Chunn and Dany Lacombe, eds., Law as a Gendering Practice, 199-227. Toronto: Oxford University Press. Katz, Michael. 1989. The Undeserving Poor: From the War on Poverty to the War on Welfare in America. New York: Pantheon. Kitchen, Brigitte. 1995. “Children and the Case for Distributive Justice between Generations in Canada.” Child Welfare 74(3): 430-59. Kitzinger, Jenny. 1988. “Defending Innocence: Ideologies of Childhood.” Feminist Review 28: 77-87. Kline, Marlee. 1993. “Complicating the Ideology of Motherhood: Child Welfare Law and First Nation Women.” Queen’s Law Journal 18: 306-42. Korteweg, Anna C. 2003. “Welfare Reform and the Subject of the Working Mother: ‘Get a Job, a Better Job, Then a Career.’” Theory and Society 32: 445-80. Lefebvre, Pierre, and Philip Merrigan. 2003. “Assessing Family Policy in Canada: A New Deal for Families and Children.” Choices 9(5): 1-100. Lessard, Hester. 2001. “The Empire of the Lone Mother: Parental Rights, Child Welfare Law, and State Restructuring.” Osgoode Hall Law Journal 39: 717-70. Lim, Hilary, and Jeremy Roche. 2000. “Feminism and Children’s Rights.” In Jo Bridgeman and Daniel Monk, eds., Feminist Perspectives on Child Law, 227-49. London: Cavendish Publishing. Little, Margaret. 1998. “No Car, No Radio, No Liquor Permit”: The Moral Regulation of Single Mothers in Ontario, 1920-1997. Toronto: Oxford University Press. Mandell, Nancy. 1988. “The Child Question: Links between Women and Children in the Family.” In Nancy Mandell and Ann Duffy, eds., Reconstructing the Canadian Family: Feminist Perspectives, 49-81. Toronto: Butterworths. McKeen, Wendy. 2004. Money in Their Own Name: The Feminist Voice in Poverty Debate in Canada 1970-1995. Toronto: University of Toronto Press. McGrath, Susan. 1997. “Child Poverty Advocacy and the Politics of InXuence.” In Jane Pulkingham and Gordon Ternowetsky, eds., Child and Family Policies: Struggles, Strategies and Options, 172-87. Halifax: Fernwood Publishing. Millar, Paul, and Anne H. Gauthier. 2002. “What Were They Thinking? The Development of Child Support Guidelines in Canada.” Canadian Journal of Law and Society 17(1): 139-62. Minow, Martha. 1990. Making All the Difference: Inclusion, Exclusion and American Law. Ithaca: Cornell University Press. –. 1995. “Whatever Happened to Children’s Rights?” Minnesota Law Review 80: 267-97. Mosher, Janet E. 2007. “Welfare Reform and the Re-making of the Model Citizen.” In Margot Young et al., eds., Poverty: Rights, Social Citizenship, and Legal Activism, 119-38. Vancouver: UBC Press. Mosher, Janet, Patricia Evans, and Margaret Little. 2004. Walking on Eggshells: Abused Women’s Experiences of Ontario’s Welfare System. Final Report of Research Findings from the Woman and Abuse Welfare Research Project, http://dawn.thot.net/walking-oneggshells.htm. Mossman, Mary Jane. 1997. “Child Support or Support for Children? Re-Thinking ‘Public’ and ‘Private’ in Family Law.” University of New Brunswick Law Journal 46: 63-85.

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National Child BeneWt. 2005a. Evaluation of the National Child BeneWt Initiative: Synthesis Report. Ottawa: Federal, Provincial and Territorial Ministers Responsible for Social Services. –. 2005b. National Child BeneWt Progress Report 2004. Ottawa. National Council of Welfare. 1975. Poor Kids: A Report by the National Council of Welfare on Children in Poverty in Canada. Ottawa: National Council of Welfare. –. 1999. Preschool Children: Promises to Keep. Ottawa: Minister of Public Works and Government Services. –. 2004. Welfare Incomes 2003. Ottawa: Minister of Public Works and Government Services. –. 2006a. Welfare Incomes 2005. Ottawa: Minister of Public Works and Government Services. –. 2006b. Poverty ProWle 2002 and 2003. Ottawa: Minister of Public Works and Government Services O’Neill, John. 1994. The Missing Child in Liberal Theory: Towards a Covenant Theory of Family, Community, Welfare and the Civic State. Toronto: University of Toronto Press. Ontario. Ministry of Community and Social Services. 1988. Transitions: Report of the Social Assistance Review Committee. Toronto: Queen’s Printer. Paterson, Stephanie, Karine Levasseur, and Tatyana Teplova. 2004. “I Spy with My Little Eye ... Canada’s National Child BeneWt.” In G. Bruce Doern, ed., How Ottawa Spends 2004-2005: Mandate Change in the Paul Martin Era, 131-50. Montreal and Kingston: McGill-Queen’s University Press. Phillips, Susan. 2001. “SUFA and Citizen Engagement: Fake or Genuine Masterpiece.” Policy Matters 2(7): 1-36. Phipps, Shelley. 1999. “Economics and the Well-Being of Canadian Children.” Canadian Journal of Economics 32: 1135-61. Picot, Garnett, and John Myles. 2005. Incomes Inequality and Low Income in Canada: An International Perspective. Ottawa: Statistics Canada. Popham, Rosemarie, David I. Hay, and Colin Hughes. 1997. “Campaign 2000 to End Child Poverty: Building and Sustaining Movement.” In Brian Wharf and Michael Clague, eds., Community Organizing: Canadian Experiences, 248-72. Toronto: Oxford University Press. Pulkingham, Jane. 1995. “Investigating the Financial Circumstances of Separated and Divorced Parents: Implications for Family Law Reform.” Canadian Public Policy 21(1): 1-19. Razack, Sherene. 1998. Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms. Toronto: University of Toronto Press. Rebick, Judy. 2000. Imagine Democracy. Toronto: Stoddart Publishing. Richards, John, and Matthew Brzozowski. 2006. Let’s Walk before We Run: Cautionary Advice on Childcare. Toronto: C.D. Howe Institute. Rittich, Kerry. 2004. Vulnerability at Work: Legal and Policy Issues in the New Economy. Ottawa: Law Commission of Canada. Roberts, Dorothy. 1993. “Racism and Patriarchy in the Meaning of Motherhood.” Journal of Gender and the Law 1: 1-38. Robson, Krista. 2004. “Unfair Guidelines A Critical Analysis of the Federal Child Support Guidelines.” Journal of the Association of Research on Mothering 6(1): 93-108. The Roeher Institute. 2001. Disability-Related Support Arrangements, Policy Options and Implications for Women’s Equality. Ottawa: Status of Women Canada. Ross, David P., and Paul Roberts. 1999. Income and Child Well Being: A New Perspective on the Poverty Debate. Ottawa: Canada Council for Social Development. Ross, David P., Katharine Scott, and Peter J. Smith. 2000. The Canadian Fact Book on Poverty 2000. Ottawa: Canadian Council on Social Development. Schorr, Lisbeth B. 1997. Common Purpose: Strengthening Families and Neighborhoods to Rebuild America. Toronto: Anchor Books. Scott, Katherine. 1996. “The Dilemma of Liberal Citizenship: Women and Social Assistance Reform in the 1990’s.” Studies in Political Economy 50: 7-36. Smart, Carol. 1996. “Deconstructing Motherhood.” In Elizabeth Bortolaia Silva, ed., Good Enough Mothering: Feminist Perspectives on Lone Motherhood, 37-57. New York: Routledge. Statistics Canada. 2000. Women in Canada 2000: A Gender-Based Statistical Report. Ottawa: Ministry of Industry.


–. 2004a. Income Trends in Canada 1980-2002. Ottawa. –. 2004b. Income in Canada 2002. Ottawa. –. 2006a. Income in Canada 2004. Ottawa. –. 2006b. Income Trends in Canada 1980-2004. Ottawa. Stephens, Sharon. 1995. “Children and the Politics of Culture in ‘Late Capitalism.’” In Sharon Stephens, ed., Children and the Politics of Culture, 3-49. Princeton, NJ: Princeton University Press. Strong-Boag, Veronica. 1979. “Wages for Housework?: Mothers’ Allowances and the Beginnings of Social Security in Canada.” Journal of Canadian Studies 14(1): 24-34. Struthers, James. 1994. The Limits of AfXuence: Welfare in Ontario, 1920-1970. Toronto: University of Toronto Press. Suransky, Valerie Polakow. 1982. The Erosion of Childhood. Chicago: University of Chicago Press. Swift, Karen J. 1995. Manufacturing “Bad Mothers”: A Critical Perspective on Child Neglect. Toronto: University of Toronto Press. Swift, Karen, and Henry Parada. 2004. “Child Welfare Reform: Protecting Children or Policing the Poor?” Journal of Law and Social Policy 19: 1-17. UNICEF. 2005. Child Poverty in Rich Countries 2005. Innocenti Research Centre, http://www.unicef-icdc.org/presscentre/presskit/reportcard_6/repcard6e.pdf. Vanier Institute of the Family. 2001. The Current State of Canadian Family Finances – 2000 Report. Ottawa: Vanier Institute of the Family. Vosko, Leah F. 2002. “The Pasts (and Futures) of Feminist Political Economy in Canada: Reviving the Debate.” Studies in Political Economy 68: 55-83. White, Lucie. 1990-91. “Representing ‘The Real Deal.’” University of Miami Law Review 45: 271-313. Wiegers, Wanda. 2001-2. “The National Child BeneWt: Social Inequality under the New ‘Social Union.’” Ottawa Law Review 33: 25-93. –. 2002. The Framing of Poverty as “Child Poverty” and Its Implications for Women. Ottawa: Status of Women. Williams, Joan. 2000. Unbending Gender: Why Family and Work ConXict and What to Do about It. New York: Oxford University Press. Wooley, Frances. 2004. “Why Pay Child BeneWts to Mothers?” Canadian Public Policy 30: 47-90. Yalnizyan, Armine. 2005. Canada’s Commitment to Equality: A Gender Analysis of the Last Ten Federal Budgets (1995-2004). Ottawa: Canadian Feminist Alliance for International Action.

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9 Challenging Heteronormativity? Reaction and Resistance to the Legal Recognition of Same-Sex Partnerships Claire F.L. Young and Susan B. Boyd

Since the early 1990s, legal deWnitions of “family” and “spouse” have been the subject of intense scrutiny and dramatic change in Canada. These changes, which many feminists have called for, can be termed an incredible success story for lesbian and gay social movements and a clear challenge to heteronormativity within the legal system. Same-sex cohabitants increasingly, though unevenly across provincial and territorial jurisdictions, are now legally recognized for a myriad of purposes. Furthermore, the opposite-sex requirement for legal marriage was challenged, and, in 2005, same-sex marriage was legalized across Canada. The extent of these changes to normative ideas about family would have been difWcult to foresee a decade ago, let alone in the 1980s when lesbians and gay men began to use the legal system as a serious site of struggle (Herman 1994; Lahey 1999; Smith 1999). Same-sex relationship recognition disturbs the assumption that marriage and kinship rest on naturalistic and biologistic notions of reproduction and family. As a result, familial ideology – long critiqued by feminists (for example, Barrett and McIntosh 1982; Gavigan 1993) – is uprooted from its traditions. The threat that same-sex marriage brings to socially conservative assumptions about family, society, and nation cannot be underestimated nor can the resistance to such change (Leff 2004; Mello 2004). Calls by social conservatives for legal protection of the opposite-sex deWnition of marriage have exposed the fragility of marriage as an historically speciWc social institution as opposed to a naturalized, timeless one. As well, essentialist assumptions about the natural complementarity of female and male roles have been interrupted. Without diminishing the struggle that lesbians and gay men have endured to secure legal recognition of their lives and relationships, we wish to trouble the evolutionary narrative of progress in this Weld. To do so,

Challenging Heteronormativity?

we will investigate the terms on which recent legal struggles have advanced as well as the ways in which resistance to legal recognition has been expressed and dealt with. As Judith Butler (2002) has noted, the political context surrounding the same-sex marriage debates has led to a dichotomous framing of the “debate” and a perceived demand that a stand be taken either for or against marriage, without problematizing marriage as a social and economic institution. Taking up Butler’s call to resist this imposed binary, we will suggest that the story of the legal recognition of same-sex relationships is less than fully positive because it has proceeded in a way that has rendered invisible the feminist and other critiques of marriage, familial ideology, and the domestication of lesbian and gay relationships (Robson 1994, 976). In particular, we are concerned with the diminishing space that exists for feminist voices on issues related to the family and economic security and the complex ways in which this discursive space has evaporated, even as certain progressive agendas have been accomplished. To the extent that these feminist voices are marginalized, conservative and heteronormative discourses on marriage and family are reinforced, even in the face of increasing recognition of same-sex relationships. This chapter Wrst brieXy traces the events of the last decade that have challenged the legal deWnition of spouse. We then discuss concerns about marriage and familial ideology that have been raised, especially by feminists. Notably, feminists have asked whether allowing lesbians and gay men to marry actually challenges the hierarchical nature of marriage and whether extending spousal status to lesbians and gay men simply reinforces the neo-liberal privatization of economic responsibility by placing it on family members rather than on the state. In the heart of the chapter, we consider the extent to which the recent struggles to expand the legal deWnition of spouse and family have embraced these questions or challenged heterosexism or liberal legalism at any fundamental level. Our case studies are based on two pivotal moments: the hearings of the House of Commons Standing Committee on Justice and Human Rights on Bill C-23, Modernization of BeneWts and Obligations Act, in 2000, and on same-sex marriage in 2003.1 We are interested in both the arguments made by those who resisted legal recognition of same-sex relationships, often on homophobic grounds, and the arguments made by the supporters of legal recognition. Did their arguments invoke feminist critiques of marriage and familial ideology or did they take a formal equality stance that failed to challenge the essence of these institutions? Was there discursive space for more radical arguments and, if so, how were these represented and received? Our analysis draws on the briefs presented to the House of Commons Standing Committee on Justice and Human Rights and the transcripts of the committee hearings.

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The Success Story: Transforming the Legal Definition of Spouse The enactment of the Canadian Charter of Rights and Freedoms in 1982 and the subsequent entry into force of section 15(1) (the equality provision) provided a tremendous impetus for litigation challenges to heterosexist statutory deWnitions of spouse. Section 15(1) did not include sexual orientation as a listed, prohibited ground of discrimination, but, in 1995, the Supreme Court of Canada in Egan v. The Queen conWrmed that it was an analogous ground. In 1998, the Ontario Court of Appeal held in Rosenberg v. Canada (Attorney General) that the words “or same-sex” should be read into the deWnition of “spouse” in the Income Tax Act, for the purposes of registration of pension plans (see Young 1998). This ruling extended entitlement to survivor beneWts under occupational pension plans to the partners of lesbians and gay men who die while covered by the plan. The decision had other far-reaching consequences. The federal government did not appeal to the Supreme Court of Canada and, in due course, amended the Income Tax Act to include same-sex partners.2 Then, in 1999, in M. v. H., the Supreme Court of Canada declared unconstitutional a family law deWnition of “spouse” that had been limited to oppositesex cohabitants. This case generated many legislative changes at both federal and provincial levels, including the introduction of Bill C-23 discussed later in this chapter and the extension by several provinces of spousal or equivalent status to same-sex cohabitants. In the early twenty-Wrst century, a renewed struggle for the right to marry emerged. Several successful Charter challenges were raised to the common law rule that deWned marriage as between one man and one woman (for example, Halpern v. Canada 2003). As a result, same-sex couples acquired, with startling rapidity, the right to marry in several provinces and one territory. In December 2004, the Supreme Court of Canada held that same-sex marriage for civil purposes was consistent with the Charter (Reference re Same-Sex Marriage 2004), and, in July 2005, the Civil Marriage Act legalized same-sex marriage across Canada, deWning marriage as “the lawful union of two persons to the exclusion of all others.” Problematizing Success: Feminist Critiques of Marriage and Marriage-like Dyads The increasing embrace of non-normative spousal relations by the legal system reXects a stunning reversal of state-sanctioned homophobia. Without denying the rapid rate of change in the Canadian legal system or the creative work by many lesbians and gay men and others to achieve it, we want to explore the terms on which success occurred. We argue that the more radical perspectives on the institution of marriage, the exclusivity of the nuclear family, and familial ideology, particularly those expressed


by feminists, have been marginalized as the legal embracing of same-sex relationships has progressed. This dynamic is not entirely surprising. Participants in the debates about same-sex relationships are a product of their society, which includes powerful ideologies of the exclusive, nuclear family (Harvison Young 1998). Many lesbians and gay men are not inclined to challenge the role that marriage has played in reinforcing unequal relations in society. Indeed, some major proponents of same-sex marriage seek admission to that institution precisely by invoking some of its oppressive features, for instance, its “civilizing” of the male impulse towards promiscuity and violence (Sullivan 1997). As a Globe and Mail editorial put it, “[b]y embracing marriage, homosexuals remind others that it is, or should be, the norm for committed couples. It is the best place to experience love, sex and companionship together. It is the best place to raise children. Marriage’s ‘till death do us part’ pledge of permanence gives people the security they need to give themselves fully to the other. It is one of the ironies of the same-sex marriage debate that conservatives who once condemned the hedonistic, selWsh and licentious ‘gay lifestyle’ would now deny homosexuals the right to opt into the bourgeois comfort of marriage” (“Gays in the ‘hood’” 2005). This conservative approach endorses key elements of familial ideology. It raises the possibility that recognition of lesbian/gay relationships in family law may not challenge the economic privilege of men or the sexual division of labour within the privatized family that has for so long been critiqued by feminists ( Jacobs 1997, 65-184). The relationship between the exploitation of women’s unpaid work and the assigning of responsibility for the costs of social reproduction to the family constitutes an intrinsic component of the capitalist mode of production (Hennessy 2000, 64; Picchio 1992). From a feminist and Left perspective, failing to challenge at a fundamental level the roles that the social institutions of marriage and family play in social inequality is problematic (but see Calhoun 2000). Arguably, however, this is precisely what has occurred in the debates over same-sex relationship recognition. As Brenda Cossman (2002b) suggests, the familial sphere has been recoded to place less emphasis on the gender-based normative structure of the family and more on its support functions. The family remains the natural site for social reproduction, but new sexual citizens can now participate. This issue raises a broader range of questions about family and gender than the legal institution of marriage alone. However, the history of resistance to marriage as one of the key institutions of patriarchy and conveyors of familial ideology is long and instructive.3 More recently, some feminist legal scholars have questioned the legal institution of marriage. In 1984, Carol Smart (1984, 143) argued that marriage was problematic as a legal category for a variety of reasons, including the fact that as an

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ideological “enclosure” it prioritized coupledom and heterosexuality and made them the norms against which all other relationships were measured. Smart astutely noted that marriage was thus “as signiWcant to the unmarried as to the married and to the homosexual as to the heterosexual.” In addition, she noted that marriage became the privileged context for the reproduction of children. As she and many others have pointed out, despite social changes such as the increased participation of married women in the labour force, marriage remains an inherently patriarchal institution in which men tend to be viewed as the breadwinners, with women carrying complementary responsibility for childcare and domestic labour. Despite considerable changes to matrimonial and spousal support laws, many of which were fought for by feminists, the legal remedies available on marriage breakdown have not been especially successful in addressing the economic inequalities stemming from women’s continuing provision of the reproductive labour needed to sustain families, the economy, and labour power (Boyd and Young 2004; Hennessy 2000, 64; Mossman 1994). Individuals within their own marriages may challenge traditional norms such as the sexual division of labour, but the socio-legal institution of marriage still embodies patriarchal and heterosexual norms (Brook 2000, 133). Marriage has been implicated not only in patriarchal and heterosexual gender relations but also in racist practices. In Canada, for instance, marriage has provided a mechanism for the imposition of colonialist, patriarchal, and oppressive norms on Aboriginal communities, with negative consequences for indigenous women (Nahanee 1995; McIvor 2004). In the United States, with its legacy of slavery, the “racialized engendering of marriage had very different consequences for white and black women” (Hennessy 2000, 65). Slaves were forbidden to marry, and the ideologies of motherhood and womanhood that prevailed for women in white, bourgeois families were not engendered in the same way for African-American women, indeed quite the contrary (Carby 1997; Davis 1983; Roberts 1997). Moreover, miscegenation statutes prohibiting interracial marriage in some states were not declared unconstitutional until surprisingly recently (Loving v. Virginia 1967). Drawing on this literature, which suggests that marriage rests on profoundly hierarchical social and economic relations, some authors have raised concerns that the struggles to achieve legal recognition of same-sex relationships have tended to rely on an “assimilation” strategy. That is, the process may require a normalization of lesbian and gay intimate relationships to appear as marriage-like as possible, leaving intact the hierarchies that are ideologically embedded within marriage.4 Furthermore, the invocation of Charter equality rights has exacerbated this trend. Section 15(1) requires that a litigant demonstrate that he or she has been discriminated against


on the basis of a listed or analogous ground such as sexual orientation. Litigants must therefore compare themselves to other members of the category of people in the ground. As Nitya Iyer has said, “[c]ategorizing necessarily implies that elements within a category are relevantly similar and, at the same time, collectively different from things outside the category. Therefore, placing elements in a category tends to suppress differences and emphasize similarities among those elements” (Iyer 1993, 183). Charter challenges by same-sex partners have tended to rest on evidence that same-sex couples are virtually the same as heterosexual couples, the only difference being their sexual orientation. They should therefore be given equal treatment by the law. The afWdavits in the same-sex marriage cases reveal that most litigants adopted this formal equality approach, emphasizing factors such as joint Wnances, reciprocal wills, monogamy, and the desire to be “just like” other couples, which they would be but for their sexuality. The framework of equality rights, which requires a comparison between the advantaged group and the disadvantaged group, tends to force rights claimants in a formal equality direction that is often essentialist as well (Bakan 1997; Fudge 1987; Gotell 1995; Lessard 2004). As a result, the diversity of same-sex, as well as opposite-sex relationships, tends to be diminished or rendered invisible. Successful inclusion on these terms may well in turn result in the marginalization of those who “deviate” from the relationship pattern that has been “normalized,” thus creating a new hierarchy of acceptable and non-acceptable gays and lesbians. Furthermore, because equality claims are founded on a comparison with a norm – that is, heterosexuality – nothing in these claims fundamentally challenges it. Our review of the submissions to the House of Commons Standing Committee on Human Rights and Justice on same-sex marriage shows that this problem has made it almost impossible for lesbians and gay men with a critique of the institution of marriage to raise this critique in an effective manner. As Lise Gotell has said (2004, 6), “those who deconstruct heterosexuality, those who speak of power, who speak of the gendered power relations that reside within compulsory heterosexuality, end up being rendered unintelligible.” At a broader political level, the rights talk engendered by the Charter tends to stiXe more radical debate. It limits the transformative nature of lesbian and gay claims to equality by “deWning social and political change as legal change” (Smith 1999, 75). This dynamic of normalizing same-sex relationships through comparison to a heterosexual norm may also explain why same-sex relationship recognition has proceeded relatively quickly. As Rosemary Hennessy (2000, 101) says, “the threatening possibility of a gender-less sexual desire” is contained by this process and “by a new paradigm of sexual identity that articulated it in a heterogendered frame.” Hennessy also points out that, to a large degree, capitalism does not require heteronormative families or

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even a gendered division of labour. It does require an unequal division of labour (63 and 105). If same-sex partners are willing to shore up that unequal division – for example, by one partner taking greater responsibility for domestic labour or childcare while the other is a Wscally responsible breadwinner – then a same-sex family can appear quite acceptable. The extent to which complex social relations of inequality can be challenged under this formal equality rights model inherent within liberal legalism and neo-liberalism is limited. Moreover, the heteronormative model underpinning such legal changes reinforces distinctions between “good” gays and lesbians, who look as much as possible like the traditional nuclear couple, and “bad” gays and lesbians, whose relationships violate familial norms. The neo-liberal state is quite happy to accommodate new sexual citizens so long as they adhere to a privatized, familialized heteronormativity (Cossman 2002b, 484). In addition to these normalizing, assimilating trends, expanding spousal recognition has particularly problematic economic implications for some couples, which are related to neo-liberal policies of privatized economic responsibility. Rhetoric in favour of the legal recognition of same-sex partners often ignores that spousal recognition can bring economic disadvantages to partners. Disadvantage occurs no matter whether same-sex or opposite-sex relationships are at issue, but class and gender are relevant. Spousal recognition tends to beneWt wealthier couples or couples whose relationships are premised on the economic dependency of one partner, but it is often disadvantageous for lower income couples. For instance, spouses often lose entitlement to state beneWts such as the goods and services tax (GST) credit, the Canada Child Tax BeneWt (CCTB), or student loans because income is aggregated for the purpose of computing entitlement to the beneWt, resulting in a loss of the beneWt because the spouses are no longer treated as individuals (Young 1994; Boyd and Young 2003). Entitlement to social assistance is often lost because the state makes spouses take Wnancial responsibility for the economic well-being of each other (Gavigan 1993). The assumption that individuals should rely on family members for support is especially problematic for women, who tend to have less income and wealth. Women often fall through the cracks between the social welfare and the family law systems (Mossman and MacLean 1999; Cossman 2002a). Lesbian couples may well be more susceptible to this risk than gay male couples. This privatization policy has accelerated in the neo-liberal climate of the past decade. It rests on an assumption that responsibility to redress economic need or dependency should reside in the private sphere of family or charities rather than be shared with the collectivity (Boyd 1999; Cossman 2002a). The policy is also based on an assumption that spouses pool their income and capital, yet pooling does not occur in all relationships


(Alderman et al. 1995; Phipps and Burton 1995; Vogler and Pahl 1994). Moreover, although the value and consequences of women’s unpaid work have increasingly been recognized in spousal support law, contradictory trends such as the ability of spouses to contract out of spousal support and matrimonial property obligations have eroded these partial gains, reXecting the rise of self-reliance norms within neo-liberalism (Boyd and Young 2004; Shaffer 2004). Given the limitations of privatized remedies, access to beneWts such as social assistance or health care might better be extended on an individual basis rather than by focusing on adult, sexually intimate relationships (Ettelbrick 1992; Gavigan 1993). Critiques such as these have led some feminists to argue that privileging a sexually intimate adult relationship in laws and social policies is mistaken and that marriage as a legal category should be abolished. Drawing on Martha Fineman (1995, 2000), Nancy Polikoff (2000) has argued that marriage as a legal institution fails to envision a truly transformatory model of family for all people and is problematically embedded in liberal notions of equality and choice.5 In the next section, we examine the standing committee hearings on Bill C-23 in 2000 and on same-sex marriage in 2003 to determine the extent to which such critical analyses of spousal recognition and marriage appeared. We also examine the arguments of those who resisted the extension of marriage rights, in particular, usually from a pre-feminist, socially conservative perspective, and to what extent and in what ways these arguments were contested. Committee Hearings on Bill C-23 The Modernization of BeneWts and Obligations Act (Bill C-23) amended sixtyeight pieces of federal legislation to extend a variety of rights and responsibilities to “common law partners,” a deWnition that includes same-sex couples. This legislation was a pivotal moment in the progress towards equality at the federal level for lesbians and gay men. That said, the legislation simply added same-sex cohabitants to the list of those who obtain certain rights and responsibilities rather than challenging the terms on which those rights and responsibilities are accorded. As such, it reinforced the status quo in terms of the consequences of being in a relationship recognized by the state, simply imposing on lesbian and gay cohabitants the neo-liberal government policies underlying the attachment of responsibilities to spousal status discussed earlier in this chapter. The House of Commons Standing Committee on Human Rights and Justice held hearings on Bill C-23 in March 2000. Twenty-three organizations and two individuals appeared. The briefs that were presented and the testimony provide insight into the respective positions of those who supported the legislation (sixteen organizations and one individual) and those who opposed it (eight organizations and one individual).6 We now

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consider the extent to which those who made submissions to the committee challenged heterosexism and legal liberalism. Were any feminist critiques of “family” articulated and, if so, what impact did they have? How was the bill perceived by those who opposed it and what arguments did they make? Was their opposition based on a perception that the legislation would challenge the traditional deWnition of family? Four signiWcant themes emerge. First, many who supported the legislation did so without reservation, adopting a formal equality approach that is typically criticized by feminists. Second, a few witnesses, although encouraging the government to enact the legislation, drew on feminist analysis and argued that the bill simply reinforced the gender inequality embedded in society and that more was needed to be done to ameliorate this inequality. Third, even though Bill C-23 did not refer to marriage, opponents of the bill put marriage front and centre. Their opposition was not based on analysis that showed that the new rights and responsibilities accorded to same-sex couples were inherently problematic but, rather, based on the assumption that the passage of Bill C-23 would lead inexorably to same-sex marriage. Fourth, a few witnesses suggested that Bill C-23 should be altered to include interdependency relationships other than those that are sexually intimate. Adopting Formal Equality: Equal Treatment Equality for Gays and Lesbians Everywhere (EGALE), a national organization “committed to advancing equality and justice for lesbians, gays and bisexuals,” has been a key proponent of same-sex relationship recognition in Canada (EGALE 2000, 2; see also Smart 1989). It took a purely formal – and thus rather narrow – equality approach in its submissions and also afWrmed the power of law to effect social change. As it said in its brief, “[i]t is a basic principle of human rights that all citizens be treated equally before the law. Currently lesbians, gays and bisexuals are denied equality through the refusal to recognize our relationships” (11). EGALE then drew on the power of legal norms, saying that “[t]he Supreme Court of Canada and numerous other Courts and Tribunals have ruled that failing to recognize same-sex relationships equally constitutes discrimination in violation of the equality guarantees in the Charter of Rights. Governments therefore have a legal obligation to extend equality in this area” (12). EGALE’s written and oral submissions did not raise concerns about the potentially gendered impact of the bill on lesbians or about its resulting privatization of economic security for lesbians and gay men. Rather, EGALE concluded that Bill C-23 was simply about afWrming in legislation the current state of the law as developed in the cases. It accepted the bill as drafted. Perhaps EGALE’s position is not surprising given that the organization could be said to be a product of the Charter. As Miriam Smith


(1999, 77-78) has said, “unlike the gay and lesbian organizations of the seventies, which explicitly sought to use litigation to politicize lesbians and gays and to build the lesbian and gay communities as a social movement, EGALE sought equality rights as ends in themselves.” Nevertheless, EGALE’s choice to de-emphasize some of the political issues concerning Bill C-23 (and, at a later date, same-sex marriage) meant that it was an active participant in a project that normalized some lesbians and gay men while, at the same time, othering many others. By its actions, EGALE also embraced the privatization of economic responsibility and its negative impact on those with lower incomes. The “Gendered and Radical” Voice Few witnesses challenged the limited vision of equality offered by EGALE. Yet the National Association of Women and the Law (NAWL) challenged head on the formal equality of Bill C-23 in its written and oral submissions. NAWL expressed concern that the bill would negatively affect the substantive equality rights of lesbians. For example, the inclusion of lesbians as common law partners for the purposes of the Income Tax Act would result in many lesbians paying more tax because, due to the aggregation of their income, they would lose their entitlement to the GST credit and the CCTB (NAWL 2000, 2). NAWL also argued that the privatization of economic responsibility inherent in the proposed legislation would “thrust lesbians into a system where they will have to start suing each other for support and compensation. What interests do lesbians have in relinquishing their claim against the state and relying primarily on their spouse and their families?” (NAWL 2000, 2). NAWL called for an opting-out provision allowing lesbians to choose whether or not to be common law partners and for a full review of the bill’s impact to be conducted within Wve years. The National Action Committee on the Status of Women (NAC) also raised issues about the gendered impact of the bill on lesbians. Their spokeswoman, Anne Kettenbeil, referred to what she described as the “stability” of lesbian relationships, which “have a very unique power sharing model that is different from the heterosexual model” (Commons 2000b, 32:7). She suggested that lesbians did not desire to emulate the heterosexual model and called for a “gender-gap” analysis of the bill. Finally, Irene Demezhuc, representing the Québec Federation of Women and the Coalition pour la reconnaissance des conjoints et conjointes de même sexe, pointed to the Xaws in a formal equality approach that fails to recognize or take into account inequality of conditions (Commons 2000b, 36:8). The Focus on Marriage Generally speaking, supporters of Bill C-23 did not raise the issue of marriage, except in response to questions from committee members.7 In contrast,

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opponents were very concerned that it was merely a precursor to the legalization of same-sex marriage. In response, the government amended the bill to include section 1.1, stating that “[f]or greater certainty, the amendments made by this Act do not affect the meaning of the word ‘marriage’, that is, the lawful union of one man and one woman to the exclusion of all others.” The focus on marriage by the bill’s opponents is interesting for several reasons. Bill C-23 extended a myriad of rights and responsibilities to same-sex partners similar to those that marriage would accord but without using the legal institution of marriage. Rather, it extended these rights and responsibilities based on a period of unmarried cohabitation. Thus, opposition to the bill was apparently rooted not in the legal ramiWcations of the proposed legislation but rather in something deeper. One might speculate that the opponents focused on marriage as the deeper symbolic issue because they found it difWcult to complain about the content of the bill. Some may in fact have approved of its formal equality and the privatization of economic responsibility that Xowed from the proposed legislation, although there is no explicit evidence of this approval in their submissions. All witnesses who opposed the introduction of Bill C-23 discussed marriage at some point in their testimony. A common theme was that the heterosexual family was threatened, and marriage as an institution (indeed society as a whole) was under attack and needed protection. For example, Focus on the Family interpreted the introduction of Bill C-23 as a “signal that the government no longer has the goal of upholding and enhancing marriage,” an interesting comment that assumes that the duty of the state is to actively pursue this goal, which belies the private nature of the family (Commons 2000b, 29:5). The organization continued by arguing that “[t]his proposed law strikes at the root of our legal, cultural, social and moral traditions. It represents a fundamental attack on marriage and the family as special institutions in Canada” (Commons 2000b, 29:6; see also Commons 2000b, 36:2 (REAL Women)). Several witnesses viewed marriage as a vulnerable institution in need of protection. Even the Canadian Conference of Catholic Bishops (2000), which took no position on whether Bill C-23 should be enacted or not, called for the protection of marriage. Unlike the bill’s opponents, they clearly saw the bill as making an important distinction between marriage and common law relationships. Indeed, they applauded the government for its efforts in this regard, although they also added that the “[g]overnment must Wnd ways to strengthen and protect marriage which is an institution that is fundamental to the building up of civilization” (2). The Toronto District Muslim Education Assembly (2000, 5) argued that “we should be developing policies and statues [sic] to strengthen and promote the sacred institution of marriage and the sanctity of family in society,


not weaken or undermine them.” As we shall see, these views were merely a glimpse of the much more vitriolic and homophobic submissions by witnesses who later opposed same-sex marriage. While Canada has been a leader among nations in terms of extending a variety of rights and responsibilities accorded to married couples to heterosexual common law couples, based on a period of cohabitation, a Wrm legal and social distinction has always been drawn between marriage and common law status. Marriage has historically given couples more legal rights and responsibilities than common law status, particularly when it comes to property rights. It has also carried with it a social recognition and afWrmation of the relationship that is not part of common law status. The opponents of Bill C-23 clearly viewed marriage as a very different relationship than common law status and were concerned that the bill’s enactment would lead to the legalization of same-sex marriage. Ted Morton argued that the agenda underlying Bill C-23 was not equal treatment of gay men and lesbians but, rather, the legalization of homosexual marriage and a dismantling of the traditional family (Commons 2000b, 32:13). Even though the bill was silent on marriage, its opponents viewed marriage as the dominant issue. Somewhat perversely, this focus seems to have diluted the arguments against Bill C-23 by deXecting the debate to a different issue not under direct consideration by the committee. Overall, when one reads the transcripts, one is struck by the intensity of the discussion about marriage, while the legal consequences of Bill C-23 are muted in contrast. Moving beyond Adult Sexually Intimate Relationships? Several witnesses argued that Bill C-23 should be expanded to include relationships other than those of a sexual nature, echoing – albeit from a different political perspective – the work of the Law Commission of Canada. The commission has questioned whether the law should move away from the granting of rights and responsibilities on the basis of marriage or spousal status, suggesting some other marker such as “emotional and economic dependence” (Law Commission of Canada 2001; see also Cossman and Ryder 2001). Drawing on the formal equality that already underlay Bill C-23’s equation of same-sex and opposite-sex common law relationships, these witnesses took the position that it was unfair to add only same-sex cohabitants to the list of those who could access state beneWts. The Conference of Catholic Bishops put it this way: “If you’re moving into something that new, we’re saying in that case, be logical: extend it to other types of relationships” (Commons 2000b, 32:13). The Evangelical Fellowship of Canada, which opposed Bill C-23 as it stood and posited the unique nature of marriage between man and woman, agreed, arguing that “economically interdependent relationships [such as brothers, sisters,

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and elderly parents and their adult children] are equally deserving of legal structures to address their particular needs” (Commons 2000b, 29:2-3). Although progressive and feminist voices have suggested an approach that moves away from prioritizing relationships with a sexual tie and towards making relationships of “inevitable dependency” the core unit for law and social policy, conservatism apparently motivated the argument during the Bill C-23 debates (Fineman 2000; Polikoff 2000). It seemed to be an attempt to “desex” lesbian and gay relationships by conXating relationships based on sexual intimacy with other non-sexual familial relationships (see LaViolette 2002, 148-52). The House of Commons Debates on Bill C-23 Bill C-23 became law in 2000, albeit with the addition of a preamble asserting the opposite-sex deWnition of marriage (Commons 2000b, 38:1-3). The bill arguably reXected the extension of privatized relations of responsibility and dependence to intimate partnerships regardless of their gender, which, in turn, reXects an agnostic view of neo-liberalism towards the gendered composition of the family (Cossman 2002a). At the same time, the reassertion of the opposite-sex deWnition of marriage gestured towards the neo-conservative desire to use law to shore up traditional family values. The House of Commons debates on Bill C-23 reveal a similar split: formal equality discourse predominated in relation to support for Bill C-23, whereas neo-conservative language on the family and society informed most of the opponents’ positions. The government itself presented the bill as a simple matter of equality that required the removal of the legal discrimination against members of same-sex common law relationships (Commons 2000a, 49:3537-62, 53:3810, and 83:5939). One Liberal member of parliament (MP), Marlene Catterall, invoked the neo-liberal privatization discourse underlying some of the formal equality rationale, suggesting that the bill would “encourage common law couples, both opposite and same sex, to plan for the Wnancial future of their partners, reducing the burden on the state when people are left destitute” (Commons 2000a, 83:5987). The New Democratic Party (NDP) strongly supported the bill, also drawing heavily on (formal) equality discourse. Most NDP MPs argued that the bill was one step towards equality for homosexuals and that this simple question of equality was being confused by objections fuelled by heterosexism (Commons 2000a, 77:5565-66 (Svend Robinson), 53:3813 ( Judy Wasylycia-Leis)). Some Bloc Québécois members spoke emotionally about equality for homosexuals and questioned why beneWts for same-sex couples would pose a threat to heterosexual families (for example, Commons 2000a, 49:3544-49 (Réal Menard)).8 More conservative proponents reasserted the signiWcance of marriage.


Progressive Conservative Party members who supported the bill preserved the distinction between same-sex and opposite-sex couples (the latter being able to marry and the former not) by arguing that no one deWnition of family should be imposed on everyone (Commons 2000a, 83:5924 and 5926 (Peter McKay)). Opponents believed that the bill would lead to same-sex marriage being legalized (for example, Commons 2000, 83:5956 (Peter Goldring, CA)). The Canadian Alliance Party strongly opposed the bill on the grounds that it posed a threat to the traditional family, consisting of a heterosexual married couple and their children. They argued that the family was threatened because the bill equated homosexual relationships with heterosexual marriage and that heterosexual marriage should be recognized and protected under the law (for example, Commons 2000a, 49:3544 (Eric Lowther)). Several MPs suggested that if passed, the law would give special treatment to “certain groups,” that is gays and lesbians.9 The Canadian Alliance also proposed that Bill C-23 be expanded to include other non-spousal relationships involving interdependency, such as cohabiting siblings. Overall, the House of Commons debates were dominated by formal equality discourse as well as neo-conservative discourse on marriage and family. The feminist critiques offered during the hearings of the institution of marriage or the hierarchies it perpetuates did not carry through to the House of Commons. However, the neo-conservative fears about marriage did permeate these debates and constituted a precursor to the subsequent committee hearings on same-sex marriage in 2003. Committee Hearings on Same-Sex Marriage (2003) As we have seen, even though it was not ofWcially on the agenda, the issue of legalizing same-sex marriage dominated the committee hearings on Bill C-23. It is therefore not surprising that when the standing committee held hearings on same-sex marriage in 2003, based on a Department of Justice discussion paper, interest was intense. No fewer than 362 briefs were presented and 444 witnesses appeared at the hearings, more than twenty times the number of witnesses who had appeared at the Bill C-23 hearings. Of those witnesses, 265 supported same-sex marriage, 163 were against it, and sixteen took no position. The discussion paper offered three reform options to consider – retaining the opposite-sex deWnition of marriage, expanding legal marriage to include same-sex partners, and abolishing marriage as a legal category and introducing a registration system for both opposite- and same-sex partners (Department of Justice 2002).10 However, most witnesses focused on the Wrst two options, retaining marriage as it was or eliminating its opposite sex deWnition. Once again, the briefs and testimony presented to the committee by

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supporters of same-sex marriage were based on formal equality and liberal legalism. Lesbians and gay men should be allowed to marry partners of the same sex because to deny them the same marriage rights as heterosexual persons is discriminatory and in contravention of the Charter equality guarantees. Same sex partners should be given the same choice to marry as heterosexual couples because their relationships are very similar. Some witnesses also emphasized that allowing same-sex couples to marry would strengthen marriage and the family. All of these arguments are based on liberal legalism: they look to the law to remedy a discriminatory situation whereby likes are treated in an unlike manner and draw on liberal notions of “formal equality” and “choice” – an attractive concept in neo-liberal times and one that is ascendant in family law (Boyd and Young 2004; Shaffer 2004). They also reinforce the normative status quo, in this case, the primacy of the exclusive, nuclear family. Although a few witnesses raised feminist concerns about marriage, most did so after endorsing the formal equality approach. Arguments for Same-Sex Marriage “It’s the Law” This phrase was used by EGALE throughout the debates, including in its brief to the standing committee, building on its argument in relation to Bill C-23 in 2000 (EGALE 2003). It was reiterated in the testimony of its director of advocacy John Fisher, who stated that “[w]e have a constitution that requires that all Canadians be treated equally under the law. Opposite sex couples can get married. Same-sex couples can’t. That’s not equality. It’s discrimination, and it’s prohibited by the Charter of Rights” (Commons 2003, 13:6). Many other supporters, such as the Canadian Labour Congress invoked the Charter and notions of fairness: “It is not fair to prevent samesex couples, who have achieved equal access to a number of important social beneWts and have accepted a number of social responsibilities, from having their marriages legally recognized. It is in fact, overt, direct discrimination. Equality requires legal equality, including access to legal marriage” (13:4). Obviously the Charter has had a tremendous impact on the arguments that lesbians and gay men make in their claims for equality. Successful litigation such as Rosenberg (1998) and M. v. H. (1999), in which discrimination against lesbian and gay couples was found to be in contravention of the Charter, set the scene for these rights-based arguments in relation to legislative change. As discussed earlier, equality rights discourse is based on comparisons. To the extent that it is invoked in legislative hearings, the pull towards formal equality may be almost as powerful as in the litigation framework and has similar constraints in terms of its ability to


challenge the status quo. Arguing that same-sex couples are the same as heterosexual couples and thus should be entitled to legally marry leaves virtually no room for a critical analysis of the institutions of marriage and family and of their relationship to the political economy and social relations of inequality. In particular, the formal equality argument limits the debate. As we shall see, there was little opportunity for supporters of samesex marriage to discuss and challenge the hierarchical, often oppressive, nature of marriage. This constrained level of debate can produce problematic practical consequences for already disadvantaged groups and reinforce existing disadvantage: “Efforts to include same-sex marriage that do not address the gendered structure of marriage or its function in maintaining racial division will succeed at most in winning ‘equality’ for a privileged sector of white well-off (not-so) queers” (Phelan 2001, 80). Choice The rhetoric of choice that is so often associated with liberalism played a signiWcant role in the written and oral submissions of supporters of samesex marriage. As John Fisher of EGALE said, “[h]aving access to the same choices as heterosexuals is what is fundamental for us, as gays and lesbians” (Commons 2003, 13:19). The New Democratic Youth of Canada (2003, 1) stated that “while some same sex couples may not hold marriage as an option for them personally, the general consensus of the LGBT [Lesbian, Gay, Bisexual, and Transgendered] communities is that people should at least be allowed the choice.” Arguments based on the freedom to choose, located as they are in the liberal paradigm, are attractive and easy to make. How can one argue against freedom of choice? The choice to marry is typically viewed as the exercise of an individual right, isolated from broader social structures that favour certain social relationships and determine how they should be regulated. Yet the “choice” to marry is actually shaped by the powerful ideology of the family, which encourages dyadic adult commitments within nuclear family settings. The choice to marry is therefore not completely free or unfettered nor is it innocent of implication in social relations of power and hierarchy. Familial ideology renders “normal” and desirable the choice to enter a dyadic relationship and bolsters these choices via the ideal liberal contract – the contract of marriage (Phelan 2001, 74). The marriage contract, in turn, is more than a simple contract because entering marriage as a social institution also gives rise to wider social and legal consequences. Moreover, it is rarely acknowledged that contracting marriage means entering a highly regulated “private welfare system” that produces differing consequences depending on gender and income level (Halley 2001, 100).

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Sameness Images of sameness and assimilation permeated many of the pro-same-sex marriage submissions, often invoking traditional norms of family. Again and again, the point was made that same-sex relationships mirror those of heterosexual couples, including the supposed Wnancial similarities. As Dawn Barbeau said, “[o]ur Wnances have gradually become more and more intertwined ... we have joint accounts; we own property or a house together; our car is our joint property” (Commons 2003, 29:76). Other witnesses focused on how traditional their relationship was, for example, in relation to childcare: “I come to you as a traditional lesbian, who’s been together for 19 years and has children. My partner is quitting work in a couple of weeks so she can stay home with our children. We need to be recognized for our equality with other couples who make choices” (Commons 2003, 29:50 (Martha Dow)). EGALE’s brief contained a series of “portraits” of lesbian and gay couples and the focus again was on how similar to heterosexual couples they were. Some attributes that were considered to be shared included monogamy, love, Wdelity, sharing of property, being viewed by others as a couple, and longevity of relationship. One poignant invocation of “sameness” was the statement of a member of Parents, Families and Friends of Lesbians and Gays: “When our church friend Penny was killed in a trafWc accident in 1998, not only did we grieve for her but we also immediately and instinctively reached out to comfort Penny’s widow ... She cried and grieved just like a heterosexual, because she was just as devastated, in the same way and to the same extent that a straight wife would be. Penny and Leona’s relationship lasted longer than my straight son’s two marriages” (Commons 2003, 16:11). It is not especially surprising that these images were put forward. As we know, equality discourse lends itself to arguments that demonstrate sameness while obscuring diversity. In this context, the obvious comparator for same-sex couples is heterosexual couples. Yet the results can be problematic. First, the concept of the typical heterosexual couple as being in a long-term, monogamous relationship in which virtually all property is shared is an idealized norm rather than a representation of reality. Second, research on the dynamics of same-sex partnerships remains at an early stage, and it is unclear what similarities and differences exist (Ambert 2003). At the same time, using the idealized heterosexual model as the comparator serves to “other” those who do not Wt the mould, with an accompanying privileging of those who do at the expense of those who do not. Those individuals – whether heterosexual or not – who do not Wt within the dyadic marriage model will be left out in the cold, for instance, those who rely on the collective for support in Welds such as health, poverty, transport, and migration (Cooper 2001, 96).


Bolstering of Marriage and Family While many who opposed same-sex marriage argued that permitting lesbians and gay men to marry would weaken the institution, many proponents argued the exact opposite. Both approaches bolstered the signiWcance of dyadic marriage and the nuclear family. Speaking for the Foundation for Equal Families, Michelle Douglas said that “[t]he foundation believes that equal marriage will in fact strengthen the institution of marriage by expanding the range of loving couples who subscribe to its tenets” (Commons 2003, 15:2). One witness, alluding to the beneWts of marriage in relation to the privatization of economic responsibility within the family, stated that “[b]eneWts to Canada, to the state, include the promotion of intra-family solidarity, the empowerment and solidarity of couples and families and certainly a reduced social burden for the state” (Commons 2003, 14:3 (Marie-France Bureau)). This approach reinforces the tendency to look inwards to the family rather than outwards for support under the neo-liberal approach of privatized self-reliance: “Quintessentially then, spousal recognition is not about relating equally and positively towards strangers, except in as much as the spousal partner has shifted from legal stranger to kin” (Cooper 2001, 96). This dynamic also reinforces the signiWcance of marriage and family as the key social institutions that lead to social stability. Marriage as the Gold Standard One option presented in the Department of Justice discussion paper on same-sex marriage was to permit lesbians and gay men to enter civil unions or registered domestic partnerships (RDPs) rather than marriage (Department of Justice 2002, 21). One might have thought that these options would attract some support since they avoid the ideological trappings of marriage. However, those who supported same-sex marriage either rejected civil unions or RDPs outright, or, in some cases, rejected them unless samesex marriage was also legalized. For example, in its brief, EGALE (2002, 9) stated that “[g]iven the social imprimatur of marriage and the stigma still attached to homosexuality, registered domestic partnerships could only be interpreted as ofWcial, government sponsored, second class status.” A similar critique was expressed by René LeBoeuf, one of the litigants in Hendricks v. Québec (2002), the Québec case declaring that the opposite-sex deWnition of marriage contravened the Charter. Following this decision, the Civil Code of Québec was amended to allow civil unions. LeBoeuf described civil unions as “light marriage.” While acknowledging that civil unions were a “good Wrst step,” he urged the committee not to stop there because “we continue to believe that a civil marriage is the gold standard of conjugal relationships” (Commons 2003, 15:3). For most supporters of same-sex marriage, there was no interest in accepting anything other than

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marriage. The symbolic importance of marriage was thus reinforced, even as its heterosexual premises were challenged. The Feminist or Progressive Voice None of the briefs and submissions discussed so far has included any critique of marriage. Perhaps understandably since it is very difWcult to argue for inclusion in an institution while, at the same time, raising the problems inherent within it. A few witnesses did try to walk that Wne line. For example, while endorsing same-sex marriage, Lise Gotell also raised concerns about the terms on which the debate was framed. She pointed out that allowing same-sex marriage would simply result in formal equality for lesbians and gay men and would not lead to substantive equality. It would not, for example, eliminate homophobia, just as ending racial segregation in the United States did not eliminate racism. She also noted that many lesbians and gay men live in relationships that do not conform to the model presented by so many proponents of same-sex marriage – that is, a committed long-term relationship. As she said, “these concerns are raised not to thwart the struggle for same-sex marriage; they are raised merely to underline its incompleteness” (Commons 2003, 30:23). No committee member engaged with Gotell’s concerns about the incompleteness of marriage as a tool by which to achieve substantive equality. Indeed, the committee transcripts reveal what little room existed for any position on same-sex marriage other than absolute opposition or complete support. Just as litigation often forces parties and intervenors into positions more stark than they would prefer (Boyd 1999, 379-82), debating the merits of possible legislation in an area as contested as same-sex marriage also appears to limit the opportunity to do more than simply accept the proposal that same-sex marriage be legalized. A more nuanced approach might be taken as evidence by the opponents of same-sex marriage that the concept is unacceptable to lesbians and gay men and that it should fail. Most lesbians and gay men, as well as most feminists who appeared before the committee, were unwilling to take this risk. Nevertheless, the West Coast Legal Education and Action Fund (LEAF), a group seeking equality for women, also attempted to break free from the formal equality model and introduce a more nuanced feminist analysis. Having supported same-sex marriage on the basis that to deny it contravened the Charter, this group raised the larger issue of the role that marriage has played in “enforcing women’s economic inequality, allowing women’s victimization by domestic violence, and devaluing the important work of caregiving” (Commons 2003, 29:61). West Coast LEAF also took the opportunity to make sweeping recommendations that addressed women’s inequality in a broader sense, including the introduction of fully funded universal daycare, adequate legal aid funding in family law, same-sex


adoption, and more support for women who are victims of violence. Only one committee member engaged with these gender issues and then not in a spirit of the group’s testimony. Vic Toews used the West Coast LEAF’s concerns to argue that marriage should not be extended to same-sex couples: “[A]re we certain enough about what we’re doing with this particular institution, given the history we’ve had with divorce and the impact of divorce and the ‘feminization of poverty’, as one witness put it here?” (Commons 2003, 29:64 (CA)). Toews’s question indicates why those who supported same-sex marriage, but had a critique of marriage, were so reluctant to articulate this critique lest it be used by conservative opponents. In 2000, NAWL had offered an analysis of Bill C-23 grounded in feminist work that challenged the privatizing impact of the bill, but in the 2003 hearings on same-sex marriage it toned down this analysis. NAWL’s oral presentation was fully supportive of same-sex marriage, with no critique of the institution. Its written brief referred to feminist work but was very careful in doing so. NAWL (2000, 7) said, for example, that “even though marriage has been infused with archaic ideologies and social prejudices regarding sex roles and behaviours, over the years we have seen substantial changes ... which have brought reform to family law and that have gradually introduced egalitarian principles.” NAWL continued by saying that a “just, fair and equal society is one which respects the dignity and the human rights of lesbians, and that fully recognizes their right to marry the person of their choice,” thus invoking the discourse of choice (ibid.). It seems that it was almost impossible to articulate a critique of marriage before the standing committee while, at the same time, supporting in principle the right to marry. We have discussed the invocation by many of the supporters of samesex marriage of an argument based on formal equality. Gary Kinsman (1996), a well-known gay activist and sociologist, engaged directly with this discursive stance and proposed a more radical position. He called for the abolition of state-sanctioned marriage, addressing its patriarchal nature and noting that marriage is the most privileged of social relations and that state institutionalized recognition of marriage is itself a state practice of discrimination against other forms of social and sexual relationships, such as singleparent-headed households. Kinsman suggested that there should be recognition of, and support for, individuals “on the basic principles of social justice, on the basis of democracy, autonomy, equality, consent, choice and the redistribution of wealth to those living in poverty and hardship” (Commons 2003, 35:4 and 5). Members of the committee appeared confused by Kinsman’s testimony since it did not fall easily into an argument for or against same-sex marriage. No committee member addressed his position directly or challenged him on its implications. John McKay described Kinsman’s recommendation

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as a “curious idea” and a “curious position” (Commons 2003, 35:11 (Lib.)). Ideas about the abolition of marriage and regulating social relationships by use of other markers were completely outside the imagination of the committee and, indeed, that of most of the other witnesses. Arguments against Legalizing Same-Sex Marriage Just as many supporters of same-sex marriage introduced individual stories to demonstrate how lesbian and gay relationships were similar to heterosexual relationships, most opponents cast same-sex couples as the antithesis of heterosexual couples, often in homophobic terms (but see the Vanier Institute of the Family 2003). Heterosexual Anxiety and Panic Underpinning much opposition was a neo-conservative view of marriage and the family as inherently patriarchal and hierarchical institutions. For them, marriage and the family were institutions that had remained impervious to the critique of feminists and others and unchanged over the years, and this imperviousness to social change was a positive aspect, which was crucial to the health of society and the nation: “Marriage is not a mere social construct, because social constructs change, but the nature of marriage has not changed through thousands of years of recorded history and through a variety of cultures” (Commons 2003, 16:7 (Gwen Landolt, REAL Women)). These interventions represented a “performance of heterosexuality,” revealing the anxiety of many men and women about the fact that “being straight” is an increasingly contested status, as is masculinity (Collier 1996). This “heterosexual anxiety” is often manifested by a critique of feminism and is aligned with the socially conservative stream of neoconservatism, which is “committed to reinscribing a highly gendered world, in which women and men are constituted as naturally different, and therefore naturally assigned to different roles and responsibilities” (Cossman 2002a, 179). The main opposition to same-sex marriage was based on a belief that allowing lesbians and gay men to marry would lead to the demise of marriage, the family, and society. Allowing lesbians and gay men to marry would strike at the most abiding aspects of marriage in their eyes – that is, the hierarchical nature of the relationship in which women and men have clearly deWned gender-based roles as male breadwinner and stay-athome wife and mother. Opponents of same-sex marriage held a highly idealized vision of the nature of the heterosexual married couple’s relationship. Namely, marriage is (or should be) a monogamous union of two people who have children and remain together until death. As Brian Rushfeldt, executive director of Canada Family Action Coalition, said: “The uniqueness of the man-woman marriage institution must be recognized,


and in fact is recognized, by almost all societies, cultures, and major religions. This uniquness includes principles of love, conjugality, covenant union, both emotional and physical, Wdelity, monogamy, potential of reproduction, and also what we would term as a unique unitive purpose for the intergenerational continuance of family and society” (Commons 2003, 20:2). In their attempt to preserve marriage as a heterosexual institution, opponents made extremely homophobic statements that clearly disturbed some committee members. Their attack focused on their perceptions about the nature of lesbian and gay relationships, the lesbian and gay “lifestyle,” and the impact of allowing same-sex marriage on the institution of marriage and society itself. These allegations “othered” same-sex relationships in terms that reinforced the values and essentialist gender roles underlying traditional views of heterosexual marriage. Nature of Lesbian and Gay Relationships and “Lifestyle” A variety of allegations were made about the nature of same-sex relationships by opponents of same-sex marriage. Gwen Landolt, national vicepresident of Realistic, Equal, Active for Life (REAL) Women of Canada, captured the tenor of these allegations: “In the same-sex union, there is sexual inWdelity; the unions are of limited duration; there are differences in the Wnancial arrangement between heterosexual and same-sex couples; their skill compatibilities are different; and their lifestyle is totally different, in particular with the prevalence of drug use” (Commons 2003, 16:9). Many witnesses argued that because, in their view, lesbian and gay couples could not procreate, they should not be allowed to marry. As Franklin Pyles of the Evangelical Fellowship of Canada said, “the conjugal relationship is essentially a procreative act. Marriage encourages procreation. It is the place where procreation is to occur” (Commons 2003, 17:7). As Richard Hudon of the Association of Christian Families said, “marriage was devised in order to create a family, in order to have children. There is a very special way of conceiving children that two women cannot use; they need a man. That is what biology tells us” (Commons 2003, 14:9). Statements such as these ignore the “gayby boom” (Kelly 2004, 134) and the fact that the marriage cases (for example, Halpern 2003 and Corbett v. Corbett 1970) reject the notion that procreation is an essential component of legal marriage. They also invoke an essentialized difference between heterosexual and homosexual relationships, drawing on principles of formal equality. The argument is that lesbians and gay men are different from heterosexual persons, and, therefore, law should treat them differently. Many opponents testiWed that the “lifestyle” of lesbians and gay men was so debauched that they should not be permitted to marry, most of them focusing on negative and stereotyped perceptions of the gay male

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lifestyle. Gay men were portrayed as drug users, pedophiles, sexually aberrant, and diseased.11 Rita Curley of the St. Ignatius Martyr Council said, using the quintessential slippery slope argument, “[t]o redeWne marriage to be inclusive of homosexuality is to create a new morality in which homosexuality is not merely tolerated but is normalized and would branch out into sexual activity with babies, children of both sexes, and with animals” (Commons 2003, 15:16). This homophobic outburst led committee member Svend Robinson to intervene and say to the chair, “as a gay man, to hear a witness equating me with pedophiles, with those who would have sex with babies, with those who would engage in bestiality, is not acceptable from any witness, and I won’t accept it” (Commons 2003, 15:16 (NDP)). Demise of Society (and Civilization) Another common theme was that permitting lesbians and gay men to marry would lead to the demise of society and, for some witnesses, the end of civilization. As Corry Morcos of the Alberta Federation of Women United for Families said, “[m]ost sociological and anthropological studies have shown that virtually all political revolutions that brought about societal collapse were preceded by sexual revolutions in which traditional marriage and family has no longer a preferred status” (Commons 2003, 30:2). Some witnesses argued that permitting same-sex marriage would lead to polygamy or incest being legalized. Still others said that if lesbians and gay men were permitted to marry, then others, such as two sisters or two brothers, would be permitted to marry. Gwen Landolt said during a heated exchange with the chair of the committee: Now you say polygamy is illegal, and incest is illegal – all of those things. But marriage is an institution that has been historically there before the common law. That is the principle, and you’re going to change it fundamentally and reform it. This is the whole point of what I’m getting at: Is marriage to be as it always has been, for the purposes I’ve already said many times today, or are you going to open it up to any kind of relationship, legal or illegal? Because in principle, you cannot open marriage up to homosexuals or lesbian couples unless you open it up in principle to all sorts of other relationships (Commons 2003, 16:31).

Other witnesses linked same-sex marriage to the ultimate demise of society. Jean Ferrari of the Canadian Christian Women Organization for Life stated that “[c]hanging the deWnition of marriage to include same-sex unions would destabilize society by weakening the very foundation of it, the family.” In the 2003 discussion of same-sex marriage, then, the dichotomous framing of the debate for or against marriage was even more deeply


entrenched, and those who tried to offer analysis that problematized the dichotomy were barely acknowledged (Butler 2002). Conclusion By and large, the Canadian debates about legal recognition of same-sex relationships operated within a narrow paradigm. A formal equality/equal treatment paradigm was used by those in favour of legal recognition whereas resistance to such legal recognition generally reXected the extent to which marriage was seen by conservative forces as the last bastion of state-enforced recognition of the special signiWcance of heterosexual couples. Moreover, those in favour of formal equality argued that nothing less than marriage will do, and they emphasized that marriage was the “gold standard.” Virtually no critiques were raised of marriage or its relationship to unequal power, domestic abuse, economic dependency, and poverty. Canada’s legalization of civil same-sex marriages in 2005, at one level, makes perfect sense. Marriage is, in some sense, an individualistic act that Wts well within the current neo-liberal climate in Canada: everyone for herself, preferably in a dyadic family unit, not relying on the community unless absolutely necessary. Other legalized dyadic relationships, such as common law partnerships, also Wt well with neo-liberalism. Feminist critiques have long exposed this ideology of marriage and the nuclear family (Barrett and McIntosh 1982) and the difWculty of challenging this social construction from within (Hennessy 2000, 97). More recently, it has been pointed out that emphasizing marriage as a key social struggle and goal has implications for citizenship. On the one hand, Shane Phelan (2001, 158) says that extending marriage rights to same-sex couples will “change cultural assumptions about who may and does love whom, about the meaning of reproductivity and parenting.” On the other hand, assumptions about the relationship between kinship and citizenship may not change: “[W]e run the risk of reconsolidating the idea of the responsible citizen as economically independent – or at least married to a provider – thus removing the burden of notice and care from other citizens” (158). The struggle for the legal redeWnition of marriage to include same-sex partners in Canada, which was seen as being so radical, has embodied this constraint. The responsible lesbian or gay citizen of the future may well be a married one. As Judith Butler (2002, 18) puts it, “options outside of marriage are becoming foreclosed as unthinkable.” The neo-liberal choice model that enables same-sex marriage is preferable to a neo-conservative space that would endorse restrictive deWnitions of marriage and family. Moreover, given the security of legal recognition of their relationships and with marriage being an option, many lesbians and gay men may well feel secure enough in their legal rights to undertake the kind of critical analysis of marriage and familial ideology that we have argued has been undermined

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in the recent debates. As others have observed, “citizenship is never wholly disciplined, but may simultaneously retain ‘an unruly edge’” (Cossman 2002b, 487; see also Stychin 2001, 290). To engage this unruly edge, however, lesbians and gay men, and, indeed, all citizens, must return their gaze to the “other” – those who do not Wt the mould of the responsible citizens of neo-liberalism. Given that Canada has legalized same-sex marriage for the whole country, we now have the opportunity to study whether or not this broader gaze – arguably a feminist gaze – will be achieved.

Acknowledgments Many thanks to Fiona Kelly, Maia Tsurumi, and Rachel McVean for research assistance. A shorter version of this chapter appeared as “Losing the Feminist Voice? Debates on the Legal Recognition of Same Sex Partnerships in Canada,” Feminist Legal Studies 14(2) (2006): 213-40. Notes 1 We concentrated on submissions made at the committee stage rather than in the House of Commons debates because parliamentary debate tends to be more aligned along party lines, whereas submissions to a parliamentary committee reXect more activist and grassroots perspectives whose arguments shift over time (see Smith 1999). 2 Sections 130-46 of the Modernization of BeneWts and Obligations Act redeWned “spouse,” which had previously included married persons and opposite-sex cohabitants, to refer only to a married person. A new deWnition of “common law partner” was added, which includes individuals who live in a conjugal relationship with a person of the oppositeor same-sex for at least twelve months. The tax rules apply in the same manner to married persons and common law partners. 3 See Rosemary Auchmuty (2004, 105) for a summary of this history, including Mary Wollstonecraft’s 1792 refusal to marry because she would have to surrender to her husband all her rights to her money, her children, and her body. See also Mary Astell (1696) for an early feminist critique of marriage and the two special issues on marriage of Feminism and Psychology, volume 13(4) in 2003 and volume 14(1) in 2004. 4 British Columbia’s expanded deWnition of spouse requires same-sex cohabitants to show that they lived in a “marriage-like relationship” (Family Relations Act 1996, s. 1). 5 Polikoff suggests relationships of inevitable dependency (paradigmatically children and caretakers) as a substitute marker (see also Robson 1998). For an excellent review of the debates in the context of same-sex marriage speciWcally, see Rosemary Auchmuty (2004). 6 The Naskapi Nation of Kawawachikamach made submissions but neither supported nor opposed the legislation. 7 An exception was the Coalition gaie et lesbienne du Québec, which, while supporting Bill C-23, also called for the right to marry for lesbians and gay men (Commons 2000b, 34:5). 8 Other Bloc Québécois members of parliament, however, were concerned that the bill was moving towards same-sex marriage or adoption. 9 “[L]et us not discriminate against anyone, let us treat everyone equally and fairly” (Commons 2000a, 82:5910-11 (Ken Epp, CA)). “Now we are talking about the afWrmative discriminations ... We have taken care of the negative discriminations” (Commons 2000a, 82:5920-21 (Paul Szabo, Lib.)). “We have given certain groups within our society special privileges without balancing them with responsibilities. Who suffers? It is the children” (Commons 2000a, 77:5576-77 (Garry Breitkreuz, CA)). 10 In the third option, marriage as a ceremony would be left to religions to determine. Considerable federal-provincial cooperation on the registration scheme and the legal consequences of relationships and relationship breakdown would be required for this displacement of legal marriage to work. The Supreme Court of Canada made it clear in the


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Contributors

Susan B. Boyd is Professor of Law and holds the Chair in Feminist Legal Studies at the University of British Columbia, where she teaches and researches in the Welds of family law and feminist legal studies. She is also Director of the Centre for Feminist Legal Studies. Her research on gender and sexuality issues in child custody and family law highlights the material constraints on women’s lives. Her current research involves an exploration of shifting conceptions of motherhood within the law and the changing deWnitions of legal parenthood. She recently published Law and Families (2006) with Helen Rhoades. Dorothy E. Chunn is Professor of Sociology and Co-Director of the Feminist Institute for Studies on Law and Society at Simon Fraser University. Her areas of teaching and research include the regulation of crime, madness, and welfare; feminism, law, and social change; politics of family; and media depictions of social issues. Among her publications are Women, Madness and the Law: A Feminist Reader (2005), edited with Wendy Chan and Robert Menzies, and Law as a Gendering Practice, edited with Dany Lacombe (2000). Lise Gotell is Associate Professor of Women’s Studies at the University of Alberta. She has published on diverse areas of Canadian feminist legal studies, including equality litigation, obscenity law, and sexual orientation jurisprudence. Her current work explores the implications of recent developments in sexual assault jurisprudence in the context of neo-liberalism. Hester Lessard teaches in the Faculty of Law at the University of Victoria. Her areas of research include feminism, constitutional and human rights discourses, and family law and policy. Robert Menzies is Professor and J.S. Woodsworth Resident Scholar in the humanities at Simon Fraser University. He has written extensively on medicolegal regulation, psychiatric and public health history, and the sociology of academic criminology. Recent publications include Contesting Canadian Citizenship: Historical Readings, edited with Robert Adamoski and Dorothy Chunn (2002), Regulating Lives: Historical Essays on the State, Society, the Individual and the Law, edited with John McLaren and Dorothy Chunn (2002), and Women,

292

Contributors

Madness and the Law: A Feminist Reader, edited with Wendy Chan and Dorothy Chunn (2005). He is currently preparing a book on the clinical, legal, and cultural governance of “criminal insanity” in British Columbia history. Sunera Thobani teaches Women’s Studies at the University of British Columbia. She is also a past president of the National Action Committee on the Status of Women. Wanda Wiegers is Associate Professor in the College of Law at the University of Saskatchewan. She teaches and writes in the areas of family law, violence against women, women and children’s rights, income security policy, and poverty and the law. Claire F.L. Young is Professor and Associate Dean in the Faculty of Law at the University of British Columbia. She teaches, researches, and writes primarily in the tax law and policy Weld. Her other academic interests include sexuality and the law and feminist legal theory.

Index

Ablonczy, Diane, 210 Aboriginal peoples, 103-4, 110, 113, 266 Abuse-Excuse, 84n17, 85 academic backlash literature, 175, 176-77 academic freedom, 166 Adam, June, 167, 169 advocacy groups, 50, 128-29 afWrmative action, 43, 51 Afghanistan, 109, 112-13 Alberta, Government of, 14 Alberta Federation of Women United for Families, 284 Alliance of Non-Custodial Parents’ Rights, 84 alternative dispute resolution, 219 American Coalition for Fathers and Children, 80, 82 Anderson, Benedict, 101 anti-feminism: and men’s movement websites, 70, 71-72; opposition to law reform, 130-31, 221; and threatened masculinity, 6, 67-68; what it represents in society, 24-25. See also backlash/backlash narrative; fathers’ rights movement; men’s movement anti-terrorism measures, 98-99, 112, 115 Arat-Koc, Sedef, 115, 118 Armstrong, Sally, 116 Association of Christian Families, 283 Australia, 86, 102-3 Axelrod, Paul, 189n3 Backhouse, Constance, 169 backlash/backlash narrative: and cybermascul(in)ism, 87-89; employment equity, 19-20; feminist view of, 7, 32, 99; history, 1-3, 4-5, 99; scholars’ theories on, 5-11, 176-77; and selfcensorship, 20; and September 11 terror attacks, 99, 100. See also

anti-feminism; child custody and support; fathers’ rights movement; men’s movement; neo-conservatism; sexual harassment; victims/ victimization Baker, Maureen, 240 Balance Magazine, 91n7 Barbeau, Dawn, 278 Bashevkin, Sylvia, 235 Batte, R. v., 137-38 Battle, Ken, 237 “battle of the sexes.” See “gender wars” BC, Government of, 186, 188 BC Civil Liberties Association (BCCLA), 180, 185, 186 BC Fathers, 73, 80, 83 BC Human Rights Commission, 186 BC Human Rights Tribunal, 179, 180-81, 183-84 BC Supreme Court, 180 Beauvais, Caroline, 229 Benedet, Janine, 141 Bessis, Sophie, 106-7 Bhachu, Parminder, 7-8 bills, federal government: C-22, 216-20; C-23, 212-13, 263, 269-75; C-33, 208; C-41, 209, 210-11; C-79, 205; C-218, 212; C-225, 212; C-237, 214, 216; C-332, 225n3. See also Canada, Government of Bird, Florence, 47 Black, William, 184 Blaney, Jack, 178 Bloc Québécois (BQ), 208, 213, 216, 274 Boily, Isabelle, 66 Bouchard, Pierrette, 66 Bourgeois, Diane, 219, 220, 223, 224 Boyd, Susan, 88 Boyle, Christine, 147 BQ (Bloc Québécois), 208, 213, 216, 274

294

Index

British Columbia, Government of, 186, 188 Broadbent, Ed, 239 Brodie, Janine, 128-29 Brown, Wendy, 153 Buchbinder, Howard, 167 Bush Jr., George W., 76, 106 Bush Sr., George H.W., 79 Butler, Judith, 263, 285 Butler, R. v., 14 Campaign 2000, 239 Campbell, Kim, 45, 205 Canada, Government of: Bill C-22, 21620; Bill C-23, 212-13, 263, 269-75; Bill C-33, 208; Bill C-41, 209, 210-11; Bill C-79, 205; Bill C-218, 212; Bill C-225, 212; Bill C-237, 214, 216; Bill C-332, 225n3; child-centered social policy, 239-41, 244-45, 256n7; child custody law, 198, 205-6; and childcare, 237; cuts to higher education, 167-68; gender-neutral policy, 198, 211; National Child BeneWt, 242-43; neo-liberalism in, 16, 132, 167-68, 247; policies on child poverty, 23031, 242-46, 253; same-sex debate and legislation, 212-20, 264, 275-76, 278, 279-85; sexual assault reforms, 129, 130-31. See also Parliament Canada Family Action Coalition, 282-83 Canadian Advisory Council on the Status of Women (CACSW), 201 Canadian Alliance: on Bill C-23, 275; in parliamentary debate on child custody, 213-14, 216, 217-18, 223; support for fathers’ rights movement, 208-9, 210, 211-12, 214-15 Canadian Association of Sexual Assault Centres (CASAC), 130 Canadian Broadcasting Corporation (CBC), 116 Canadian Christian Women Organization for Life, 284 Canadian Labour Congress, 276 capitalism and family partnerships, 267-68 Catterall, Marlene, 274 Cauchon, Martin, 220 CBC (Canadian Broadcasting Corporation), 116 Cerny, Judy, 247 Chafetz, J.S., 7, 21, 25n3 Charter of Rights and Freedoms: and child custody, 204, 205; impact on feminism, 32, 50, 56, 164, 267; and samesex laws, 264, 266-67, 276

child abuse, 218 child custody and support, 198-224; backlash claim of feminist control, 84, 198, 202, 204, 214, 217-18, 224; Bill C-22, 216-20; Bill C-41, 209, 21011; debated in parliamentary committees, 200-3; feminist analysis of, 219, 220, 223, 224; how compromise law favours fathers’ rights, 221-23; and joint legal custody, 202, 214-15, 216; major cases on, 205; parliamentary debate from 1960s to 80s, 203-7; parliamentary debate in 1990s, 205-12; parliamentary debate since 2000, 21220; political background of, 198-200 child poverty: blamed on mothers, 25254; and “culture of poverty” idea, 240-41; federal policies for, 239-41, 242-46; how childhood programs don’t affect poverty, 244-45, 246, 253, 254; linked to women’s poverty, 235, 236, 247; neo-liberalism’s view of, 231, 242, 244, 246, 248-49, 24950, 254; underfunding of programs for, 238, 242, 243, 247; used as political tool, 230-31, 240-41, 246-47, 24849, 251-52 Child Poverty Action Group, 246 child support: fathers’ rights critiques of, 202; and paternalistic parliamentary discourses, 205-7; and privatization, 200, 221; and taxation, 205, 206, 208, 209; and social assistance, 242; and suicide, 202, 213 childcare: and employment equity, 230, 232, 233; feminist view of, 233, 23435; government initiatives, 237, 238, 245, 254 children, 229-55; conceptions of childhood over time, 232-33; feminism blamed for problems of, 223, 234; government childhood development programs, 244-45, 256n6; heightened concern for, 229, 239-41; in men’s movement literature, 78, 79-82; replace women in social policy initiatives, 235-38; seen as victims, 223, 234, 249-50, 251; social policy for, 229, 234, 239-41, 242-46; used for political purposes, 229-32; viewed as economic investments, 240-41, 242, 244; viewed as special case, 248-49. See also child custody and support; child poverty; childcare Children and Fathers Together, 78 Children’s Rights Council, 81 Christian Right, 9, 77-79

Index

Chunn, Dorothy, 251 church: on Bill C-23, 272-73, 273-74; and Christian Right, 9, 77-79; on same-sex marriage, 283-84, 287n11 citizenship: and neo-liberal sexual citizens, 152-53, 268, 285-86; in neoliberal states, 128, 285, 286 civil unions, 279 Clancy, Mary, 207, 209 “clash of civilizations” narrative, 107-8, 109-10, 114-15 Cohen, Leah, 169 Cole, Susan, 14 colonialism, 110, 113 Conference of Catholic Bishops, 272, 273 Congress of Canadian Women, 200 Connell, Robert, 4, 20 Conservative government (federal), 237, 245 conspiracy theories, 76, 77, 82 contextualized vs individuated view: of marriage, 285; of media stories on feminism, 36-37, 45-46; of neoliberalism, 132-33, 152-53, 187; of poverty, 235-36, 242, 244, 245, 24849; of progress, 188-89; of sexual assault, 132, 135, 137, 140, 141, 15253; of sexual harassment, 169-70, 175, 182-83, 185, 187 Cools, Anne, 210-11 Cooper, Davina, 8-9, 10, 174 Copps, Sheila, 204 Corak, Miles, 241 Cornejo, R. v., 148 Cossman, Brenda, 207, 210, 230, 265 countermovements, 7, 13, 21 courts. See legal system criminalization, 129-30, 151 criminogenic situation, 151 Crosby, R. v., 139 Cudd, A.E., 7, 10 culturalization of race, 104. See also race/racism Cummings, Joan Grant, 48 Curley, Rita, 284 DADS Against Discrimination, 78, 81 Darrach, R. v., 133-34, 136, 137, 138 Day, Shelagh, 171 deadbeat dads, 199, 205, 210, 212, 218 Demezhuc, Irene, 271 Department of Justice Committee Hearings on Same-Sex Marriage, 275-76, 278, 279-85 Dillman, Lisa, 215 DiManno, Rosie, 40 disabled adults, 250

discriminatory myths, 131, 135, 137, 139, 140, 141 Divorce Act, 200-1, 204, 208, 214 Dobrowolsky, Alexandra, 241 Domestic Violence against Men in Colorado, 87 Donnelly-Marsden case, 177-79, 180, 185 Douglas, Michelle, 279 Dubé, Antoine, 209 Dulac, Germain, 205 Dutton, Donald, 179-80, 181-82 Dworkin, A.G., 7, 21, 25n3 Dworkin, Andrea, 68 Dziech, Billie W., 169 economics, 34-35, 152 EGALE. See Equality for Gays and Lesbians Everywhere (EGALE) Elley, Reed, 214 employment: and cutbacks in 1990s, 236; government policy in low-wage era, 233, 237-38, 243-44, 248. See also employment equity employment equity: affected by backlash, 19-20; and childcare, 230, 232, 233; loss of political traction for, 23637; and media, 43; at universities, 167, 168, 171 Entraide Pères – Enfants Séparés (ENPES), 80, 81 equality/equity issues: false idea of equality in child custody cases, 222; false idea of equality in sexual assault cases, 141, 178, 181; of genders, 20, 48, 51; media coverage, 41-44, 47, 4952, 54; men’s movement use of, 8385, 92n14; between opposite-sex and same-sex marriages, 266-67, 276-77, 278; relation to sameness, 49-52, 278, 283. See also employment equity; formal equality Equality for Gays and Lesbians Everywhere (EGALE): argument for samesex marriage, 276, 277, 278, 279; position on Bill C-23, 270-71; using language of opponents, 14 Erwin, Lorna, 13 Estrich, Susan, 146 Evangelical Fellowship of Canada, 27374, 283 Everyman: A Men’s Journal, 86, 91n6 Ewanchuk (1999), 134, 144-45, 147 fabrication, 143 false memory syndrome (FMS), 142-43 Faludi, Susan, 5, 6, 65, 99 families/family ideology: and capitalism,

295

296

Index

267-68; feminist view of, 263, 265, 285; in government debate on child custody, 199, 207, 208, 209-15, 21819; men’s movement’s view of, 79-82, 84-85; neo-conservative view of, 13, 199-200, 207, 209-10, 212, 213-14, 223, 282-83; role in Bill C-23 debate, 272-73, 274, 275; in standing committee hearings on same-sex marriage, 279, 282-83, 284; violence against, 87, 218-19. See also child custody and support family law. See child custody and support Farrell, Warren, 74, 83 Father Manifesto, 78-79 fatherhood, 199-200, 234. See also fathers’ rights movement Fathers Are Capable Too, 80 Fathers and Children Together, 80 fathers’ rights movement, 198-224; and Bill C-22, 217, 218; and Bill C-41, 210-11; and child custody, 198, 219, 221; demonizing of mothers, 202, 208, 210, 212, 214, 218; and Divorce Act, 200-1; favoured in compromise law reforms, 222-23; on the Internet, 65, 71, 73, 79-82, 84-85; Liberal support for, 203-4; male MPs who take positions against, 205-6; on men as victims, 213-14, 218; in parliamentary debate, 211-20; Reform/Canadian Alliance support for, 208-9, 210, 21112, 214-15; use of feminist language, 14 Fekete, John, 176 feminism: activism on sexual assault, 127, 131; battle for control of key concepts, 13-14, 19, 56, 67, 82-83, 91n4; and Charter of Rights, 32, 50, 56, 164, 267; and child-centered approach to family law, 230; and childcare, 233, 234-35; claimed to be in control of child custody, 84, 198, 202, 204, 214, 217-18, 224; classed as special interest group, 128-29; critique of marriage, 265-66, 267, 269, 277, 280-81, 285; development of, 11-13, 14, 15, 41, 55-56; and disadvantaged groups, 51, 52; good and bad dichotomy, 41, 47-48, 74; and imperialism, 118; and legal system, 133, 177; media coverage, 36-40, 41-43, 45-48, 55-57, 58n3; neo-liberalism’s claims against and effect on, 4, 14, 31-33, 51-52; role in family law reform, 200, 201-3, 221-23; role in same-sex partnership debates, 15, 19,

275, 276; strategies for social change, 16-19; success of, 21, 44-45; at universities, 168, 170-72; use of child poverty as political tool, 230-31, 24647, 251-52; view of backlash narrative, 7, 32, 99, 165, 174; view of being seen as victims, 7-8, 32; view of child custody, 219, 220, 223, 224; view of legalizing same-sex marriage, 277-78, 280-81; view of the family, 263, 265, 285; view of war on terror, 116-17; views of former feminists, 3132, 49, 55, 87. See also anti-feminism; backlash/backlash narrative; fathers’ rights movement; Wrst-wave feminism; men’s movement feminization, 36, 37-38, 76 Ferrari, Jean, 284, 287n11 Fineman, Martha, 269 Finestone, Sheila, 203, 204, 209 First National Everyman Gathering, 86 Wrst-wave feminism, 5, 233 Fisher, Donald, 167 Fisher, John, 276, 277 Focus on the Family, 272 formal equality: in child custody law, 198, 220, 221-22; consequences of, 18-19, 56-57, 276-77; for and against in submissions on Bill C-23, 270-71, 274; media coverage of, 42, 47, 49-52, 56-57; as neo-liberal policy, 56, 236; in same-sex marriage, 267, 269, 27677. See also formal equality vs substantive equality formal equality vs substantive equality: in child custody and support, 220, 221-22; media’s view of, 43, 50-52, 56-57; use of, by social movements, 18-19 Forseth, Paul, 211, 212, 217 Foucault, Michel, 134 Foundation for Equal Families, 279 Francis, Anne, 47 Fraser, Nancy, 248 Freeman, Barbara, 55 Freeman, Dick, 72, 80 Freiler, Christa, 247 Friedan, Betty, 37, 47 Fudge, Judy, 207, 236 Fulton, Margaret, 172-73 Gaffney, Beryl, 208 Gagan, David, 178 Gage, Walter, 171 Gavigan, Shelley, 251 gay movement. See lesbian and gay social movement

Index

Gelles, Richard, 86-87 gender neutrality: in Bill C-22, 220; and childcare, 234; and forms of address, 42-43, 45, 54, 211; in government child custody policy, 198, 199 gender politics: disappearance of, in neo-liberal states, 128-29, 132; and intra-gender dichotomies, 38-39, 4041, 46-47, 48-49; and marriage, 282; in sexual assault cases, 135. See also gender neutrality; “gender wars” “gender wars”: in child custody, 199, 217-18, 222-23; media coverage, 38, 46; and power dynamic, 20. See also gender politics Gilligan, Carol, 68 Gitlin, Todd, 57 Globe and Mail: on afWrmative action, 51; anti-feminist story, 41; on equity legislation, 43, 50, 52; on genderneutral language, 42-43; 9/11 reporting, 99, 106, 108; part of print media study, 34; on reverse discrimination, 53; on same-sex marriage, 265; on sex discrimination, 42 Goddu, Jenn, 49 Gordon, Linda, 248 Gotell, Lise, 267, 280 government: cuts to higher education, 167-68, 187; lack of policy to aid low-wage workers, 237-38; in men’s movement literature, 76-77, 78-79, 80; in neo-liberal state, 50; preference for formal equality over substantive equality, 221-22; scapegoating immigrants, 103, 105; scapegoating mothers, 253. See also Canada, Government of; provincial governments grandparents’ rights, 207, 208, 213, 216 Grassby, Miriam, 225n4 Grewal, Inderpal, 108-9 Grey, Deborah, 214 Hackett, Robert, 101 Hage, Ghassan, 102-3 Hall, Stuart, 106, 107 Hart, Michael, 74 Hawkesworth, Mary, 8 Hayes, Sharon, 210 health issues, 85-87 Heckman, James, 244 hegemonic masculinity, 67-68 Heisz, Andrew, 241 Hendricks v. Quebec (2002), 279 Hennessy, Rosemary, 267-68 Herman, Didi, 9-10

heteronormativity, 134, 262, 282-83. See also masculinity Hill, Jay, 208, 210, 213, 217 Hough, Janet, 221 House of Commons Standing Committee on Justice and Human Rights, 263, 269-75. See also Parliament Hudon, Richard, 283 human rights tribunals/codes: changes to, after Mahmoodi, 183-84, 186, 187, 188; criticized by media, 183; House of Commons Standing Committee, 263, 269-75; and Mahmoodi v. University of British Columbia, 179, 180-81 ideal victim construct, 142, 149, 150, 151 immigration, 100, 102-3, 104, 105, 11011 imperialism, 110, 113, 118 individualization: focus of media stories, 35-37, 45-46; focus of neo-liberal policy frame, 132; focus of sexual assault cases, 151; focus of sexual harassment cases, 175, 183, 187. See also contextualized vs individuated view Internet, 65-91; analysis of men’s movement websites, 87-89; content of men’s movement websites, 72-87; deconstruction of, 89-90; extent of men’s movement on, 65-66, 69; review of men’s movement websites, 69-72 intra-gender dichotomies, 38-39, 40-41, 46-47, 48-49 Ismael, T.Y., 101-2 Iyer, Nitya, 267 J.A., R. v., 146-47 Jaffer, Rahim, 213 Jakubowski, Lisa, 105 Jay, Paul, 116 Jenkins, Henry, 232 Jenks, Christopher, 229 Jenson, Jane, 229, 241 J.I.C., R. v., 150 Jiwani, Yasmin, 119n6, 119n15 J.R., R. v., 149-50 justice system. See legal system Karim, Karim H., 102 Katz, Michael, 251 Kettenbeil, Anne, 271 Kilgour, David, 225n4 Kinsman, Gary, 281-82 Korteweg, Anna, 253 Laird, Paul, 82-83 Lakeman, Lee, 130

297

298

Index

LaMarsh, Judy, 37 Landolt, Gwen, 14, 283, 284 Landsberg, Michele, 53, 58n3 language: battle for ownership of key concepts, 13-14, 19, 56; in Bill C-22 on child custody, 217, 218; of children’s advocacy, 232, 234, 236; Wght for gender-neutral, 42-43, 45, 54; legal terms used for addressing sexual harassment, 174; media’s use of loaded, 38, 45, 54; men’s movement on feminist discourse, 67, 82-83; rhetorical excesses of conservative backlash, 182-83 Larcombe, Wendy, 149 Larner, Wendy, 129 Lasch, Christopher, 79 Law Commission of Canada, 273 LEAF (Legal Education and Action Fund), 280-81 LeBoeuf, René, 279 The Lecherous Professor (Dziech and Weiner), 169 Lefebvre, Pierre, 244 Legal Education and Action Fund (LEAF), 280-81 legal system, 127-53; claims of favouring mothers in custody cases, 202, 203-4, 218; complainants’ experiences in, 143, 149-50; and decontextualized crime, 135, 137, 140, 141, 152-53; and feminism, 133, 177; ideal victim construct, 142, 149, 151-53; judges’ annoyance with social analysis, 141, 143-44; meaning of “consent” in sexual assault cases, 144-46, 147; in men’s movement literature, 80-81, 84; mistaken belief defense, 145-46, 147, 148; role of cross-examination in sexual assault cases, 149-50; rulings on “consent” in recent cases, 146-49, 150; rulings on same-sex marriage, 264, 270, 279, 283; rulings on sexual harassment, 175, 186-87; sexual assault law reforms of 1990s, 127, 129, 130-31, 221; and use of sexual history evidence, 130-31, 135-41. See also Charter of Rights and Freedoms; same-sex partnerships; sexual assault; Supreme Court of Canada Legalize Choice for Men, 84n16 lesbian and gay social movement: good and bad gays, 268; and homophobia, 283-84; and “normalizing” same-sex relationships, 266-68; position on Bill C-23, 270-71; recent successes of, 262; view of marriage, 277, 278, 279,

280, 281-82, 285-86. See also Equality for Gays and Lesbians Everywhere (EGALE); same-sex partnerships Lessard, Hester, 7, 144 L’Heureux-Dubé, Claire, 144 Liberal government (federal), 98-99, 1034, 108, 237, 244-45 Liberal Party (federal), 203-4, 208, 20910, 216 liberalism, 35, 38, 44-45, 166-67, 276, 277, 281 Lisa’s Law, 214-15, 215-16 Lochner, Lance, 244 Lowther, Eric, 213 M. v. H. (1999), 264 MacDonald, Flora, 36 MacKay, Peter, 217 Mackey, Eva, 105 MacKinnon, Catharine, 68, 169 MacLellan, Russell, 206 Mahmoodi, Faribha, 179-81 Mahmoodi v. University of British Columbia and Dr. Donald Dutton, 177, 17983 Major, John, 144-45, 146 Maloney, John, 216 Mamdani, Mahmood, 110, 113 Mandell, Nancy, 232 Manji, Irshad, 116 Manley, John, 225n4 marriage rights: debate on changing legal basis of, 265-66, 267, 273-74, 281-82, 283; debated in committee as part of Bill C-23, 271-74; debated in Parliament, 208, 212, 274-75; and equality, 266-67, 276-77, 278; feminist critique of, 265-66, 267, 269, 277, 280-81, 285; historical tradition of, 262, 282; lesbian and gay view of, 277, 278, 279, 280, 281-82, 285-86; and race, 266; standing committee hearings on same-sex marriage, 27576, 278, 279-85. See also same-sex partnerships Marsden-Donnelly case, 177-79, 180, 185 Martin, Paul, 98, 108 masculinism, 91n2 masculinity, 6, 67-68, 108, 112, 152. See also heteronormativity masculism, 91n2 McClelland, Ian, 208, 210 McElroy, Wendy, 91n2 McInnes, John, 147 McIntyre, Sheila, 129, 137, 190n15 McKay, John, 281-82

Index

McKeen, Wendy, 235, 246 Measor, John, 101-2 media: commentary on Mahmoodi case, 181-83; commentary on MarsdenDonnelly case, 178-79; coverage of race, 40, 48, 102, 108; coverage of victimization, 114, 115, 178, 181-82; criticism of sexual harassment law, 181-83; and depoliticization of feminism, 45-46; as dominant force in un derstanding issues, 101-2; and equality/equity issues, 41-44, 47, 49-52, 54; explanation of inXuences on, 34-35; factors that don’t favour coverage, 49, 54, 55, 56-58; focus on individual in, 35-37, 45-46; and gender-neutral issues, 42-43; good and bad feminist dichotomy, 38-39, 41, 47-48; inXuences that determine newsworthiness, 34-35; intra-gender dichotomies in, 38-39, 40-41, 46-47, 48-49; men’s movement’s view of, 82-83; 9/11 reporting, 98, 99, 100, 101-2, 106, 107-10, 112; and reverse discrimination, 52-53; Salomé view of women, 178, 181; use of adversarial frame, 3739, 46-47, 49, 101; view of Muslims, 100, 102, 108, 112-13, 114, 116; and war on terror, 116-17; and Western superiority, 100, 107-8, 110 mediation, 219 Men Our Masters (MOM), 40 Ménard, Réal, 216 Men’s Defence Association, 76 Men’s Educational Support Association of Calgary, 81 Men’s Media Network, 74, 82-83, 84 men’s movement, 65-91; analysis of, 6668, 87-89, 90-91; claims of discrimination, 52-53, 83-85, 87; on feminism and free speech, 82-83; on feminism as harmful to men’s health, 85-87; on feminism as threat to family, 79-82, 84-85; on feminism as threat to nation, 75-77; on feminism as threat to religion, 77-79; on feminism as threat to social values, 72-74, 75; how feminists should respond to, 87-90; on-line presence, extent of, 65-66, 69; themes in their writing, 67, 68-69, 69-70, 71; websites, 69-72 Men’s Rights Agency, 74 Meredith, Val, 218 Merrigan, Philip, 244 military service for women, 92n15 Mills, Bob, 215 Mills, R. v., 134, 136, 137

Minnich, Elizabeth Kamarck, 91n4 Minow, Martha, 234, 248 misandry, 73 misogyny, 5, 112-13. See also antifeminism; men’s movement Mitchell, Juliet, 11-12 Modood, Tariq, 109 Mohr, Renate, 149 Morcos, Corry, 284 Morton, Ted, 273 motherhood, 199, 202, 233, 252-54. See also child custody and support Mulroney, Brian, 239 multiculturalism, 102-3, 103-4, 104-5 Muslims: on Bill C-23, 272-73; divided into good or bad, 113-15, 116; evidence Muslim women are not repressed, 115-16; media portrayal of, 100, 102, 108, 112-13, 114, 115, 116; patriarchal attitudes toward, 100-1, 114-15, 116; reaction to, after 9/11, 98-100, 112 NAC. See National Action Committee on the Status of Women (NAC) Narayan, Uma, 114 National Action Committee on the Status of Women (NAC): and child custody law, 201; compared to REAL Women, 49; lack of government funding for, 50; media coverage, 40, 48, 49 National Association of Women and the Law (NAWL), 220, 225n2, 271, 281 National Child BeneWt (NCB), 242-43, 255 National Coalition of Free Men, 76, 85 National Organization of Men (NOM), 38, 76 National Post, 107 Native peoples. See Aboriginal peoples NAWL (National Association of Women and the Law), 220, 225n2, 271, 281 NCB (National Child BeneWt), 242-43, 255 NDP (New Democratic Party), 274, 277 neo-conservatism: battle for ownership of key concepts, 13-14; and child custody law, 200, 212; development, 11, 15-16; and men’s movement, 77-78; opposition to same-sex relationships, 272-73, 274-75, 282-84; worldview, 13, 31, 223 neo-liberalism: arguments against feminist claims, 31-32, 51-52; battle for ownership of key concepts, 13-14, 19; and child custody law, 200, 210; and child poverty, 231, 242, 244, 246,

299

300

Index

248-49, 249-50, 254; and crime, 12930, 151; cuts to public funding, 103, 167-68, 186, 188, 236; and decontextualized policy, 132-33, 152-53, 187; development, 11, 13, 15-16; and family values movements, 207; and gender inequality, 20, 51; in Government of Canada, 16, 132, 167-68, 247; inXuence on feminism, 4; and the Internet, 89-90; and media, 34-35, 48; and privatization, 103, 200, 203, 210, 236, 268-69, 279; and same-sex marriage, 279; and sexual assault reform, 12728, 129-30, 144; sexual citizens of, 152-53, 268, 285-86; view of poverty victims, 249, 251; view of welfare, 250-51 New Democratic Party (NDP), 274, 277 New Zealand Men for Equal Rights Association, 81-82 Newson, Janice, 7, 167 Nicholson, Rob, 206 9/11. See September 11, 2001, terror attacks NOM (National Organization of Men), 38, 76 Nunziata, John, 204 Oakley, Ann, 11-12 O’Hagan, Patricia, 190n11 O’Neill, John, 234 “othering,” 101, 109, 278, 283 Pangborn, Kenneth R., 73-74, 85 Pappajohn v. The Queen (1980), 145-46 parental alienation syndrome, 84, 218 Parents, Families and Friends of Lesbians and Gays, 278 Parliament: child custody committee meetings, 200-3; child custody debates, 198-99, 203-14; and child poverty resolutions, 239, 240; committee meetings on Bill C-23, 263, 269-74; debate on Bill C-23, 274-75; as forum for neo-conservatism, 15. See also Canada, Government of patriarchal attitudes/structures, 45, 100-1, 114-15, 116 pay equity, 43. See also employment equity Pazira, Nilufer, 116 Pennsylvania Family Court Reform, 76 Pettigrew, Pierre, 108 Phelan, Shane, 285 Pizzey, Erin, 87 Polikoff, Nancy, 269 political correctness, 75-76, 82-83, 190n15

pornography, 14, 149-50 poverty, 235-36, 249-51. See also children’s poverty; contextualized vs individuated view; women’s poverty power/power relations, 10, 20, 25n3, 135, 152-53. See also gender politics; “gender wars” privacy rights, 136, 140, 141-42, 245 private sector, 167, 168 privatization: of Wnancial support in child custody cases, 203, 205, 221; inXuence on media, 34-35; as neoliberal policy, 103, 200, 203, 210, 236, 268-69, 279; of public services, 166-67, 186, 188, 247; and same-sex marriage, 279; of sexual violence cases, 132, 184 pro-family movement, 13. See also families/family ideology Progressive Conservative government (federal), 203, 205 Progressive Conservative Party (federal), 275 Promise Keepers, 71, 78 Proulx, Marie-Claude, 66 Province (Vancouver), 34, 36, 190n14 provincial governments, 14, 186, 188, 243, 256n6, 286n10 Pyles, Franklin, 283 Québec, 256n6, 279 R.A., R. v., 139 race/racism: anti-Muslim reaction after 9/11, 98-99, 100; becomes fused as culture and language, 104; and child poverty, 239, 252; and employment, 233; and history of multiculturalism in Canada, 103-4; and marriage, 266; in media coverage, 40, 48, 102, 108; racial proWling, 98-99, 115; racialized gendering, 104-5, 112, 114; and sexual assault, 135, 155n24; stereotypes of, 250, 253; in universities, 172, 176, 181; and who belongs in the West, 108, 117; and who is Canadian, 1034, 105, 109-10, 118 Razack, Sherene, 104, 119n14, 251 R.B., R. v., 140, 142-43 Realistic, Equal, Active for Life (REAL) Women, 14, 40, 49, 214, 283 Rebick, Judy, 57, 190n12 Reform Party: support for fathers’ rights movement, 208-9, 210, 211-12, 21415; and traditional family values, 207, 209-10, 212 registered domestic partnerships (RDPs), 279

Index

Reimer, Marilee, 168 religion, 77-79, 109. See also church responsibilization, 151-52, 214, 217, 242, 244, 285 restructuring. See privatization reverse discrimination, 52-53, 182 R.H.B., R. v., 140-41 Robichaud v. R., 175, 186-87 Robinson, Svend, 284 Rodas, R. v., 148 Royal Commission on Bilingualism and Biculturalism, 103-4 Royal Commission on the Status of Women, 47 R.R., R. v., 147 Rubenson, Kjell, 167 Rushfeldt, Brian, 282-83 Salomé and vindictive female Wgures, 178, 181 Samar, Sima, 113 same-sex partnerships: and Bill C-23, 263, 269-75; and Charter, 264, 266-67, 276; compared to heterosexual unions, 266-67, 276-77, 278, 283; debate and legislation on, 212-20, 264, 275-76, 278, 279-85; economic disadvantage of, 268-69; feminist view of legalizing same-sex marriage, 277-78, 280-81; feminists’ role in, 15, 19, 275, 276; and formal equality, 267, 269, 276-77; legal rulings on, 264, 270, 279, 283; legalization of, 262, 264, 275-76, 285; “normalizing” or de-sexing, 266-68, 274; opposition to, 262, 271-73, 274-75, 282-85 Schick, Carol, 176 second-wave feminism, 11-13. See also feminism Segal, Lynne, 6 self-censorship, 20 Senate, 210-11, 211, 240 September 11, 2001, terror attacks: Canada’s support of US, 98, 108-9; and “clash of civilizations” talk, 107-8, 109-10; and immigration, 100, 102-3, 105, 110-11; media reaction to, 98, 99, 100, 101-2, 106, 107-10, 112; and theme of western superiority, 106-7 sex discrimination, 37, 42, 45, 167, 171, 186 sexual assault, 127-53; cases that establish meaning of “consent,” 144-46, 147; complainants’ experiences in court, 149-50; contextualized vs individuated view of, 132, 135, 137, 140, 141, 152-53; and discriminatory

myths about complainants, 131, 135, 137, 139, 140, 141; effect of Supreme Court decisions on, 130-31, 133-37; false accusations of, 85, 87, 212; and false memory syndrome, 142-43; and feminist activism, 127; how “consent” has been ruled on, 146-49; and ideal victim construct, 142, 149, 150, 151-53; law reforms of 1990s, 127, 129-30, 130-31, 221; and Lisa’s Law, 215-16; list of recent cases, 159-63; and neoliberalism, 127-28, 129-30, 144, 15253; and power relations, 135, 152-53; and privacy rights, 136, 140, 141-42; and race, 135, 155n24; role of crossexamination in trials, 149-50; role of mistaken belief defense in, 145-46, 147, 148; on university campuses, 172; use of sexual history evidence in trials, 135-41 sexual harassment, 164-89; backlash to harassment policies, 176-77, 181-83; changes to university policy after Mahmoodi, 183-87; contextualized vs individuated view of, 169-70, 175, 182-83, 185, 187; decontextualized policy guidelines, 185, 187; early cases of, 169, 172-73; effect of backlash on use of harassment policies, 184-85, 188; Wght for university harassment policies, 170-74, 175-76, 183; Mahmoodi v. University of British Columbia, 177, 179-83; MarsdenDonnelly case, 177-79; media coverage, 181-83; Supreme Court cases of, 175, 186-87 sexual orientation, 172, 212-13, 269-75. See also lesbian and gay social movement sexual violence. See sexual assault; sexual harassment; violence against women Shattered Men, 77-78 Sheehy, Elizabeth, 143, 146 Simms, Glenda, 36 Simon Fraser University, 177-79, 184-86 Skoke, Roseanne, 207 Smart, Carol, 144, 148, 265-66 Snider, Laureen, 133 social assistance. See welfare system social change: and formal equality argument, 18-19; models of, 5, 9, 1011, 189; through children, 229; through institutions, 174, 184; through law reform and social policy, 16-17; undesirable outcomes of, 18, 19-20. See also same-sex partnerships social movements, 7, 9, 32. See also

301

302

Index

fathers’ rights movement; feminism; lesbian and gay social movement; men’s movement social policy: children replace women in, 235-38; for children, 229, 234, 239-41, 242-46, 256n7; for social change, 16-17; inadequate funding for, 238, 242, 243; and neo-liberalism, 236, 242 socialism, 11-12, 76 Solomon, John, 213 special interest groups, 50, 128-29 Spencer, Larry, 215, 216, 223 Stacey, Judith, 199 Steinem, Gloria, 37 Steinitz, Susanna, 71 Strahl, Chuck, 213, 214 Strauss, Murray, 86-87 Strong-Boag, Veronica, 5-6 Stubbs, John, 177, 178 substantive equality. See formal equality vs substantive equality Supreme Court of Canada: contradictions within rulings, 137-38; and formal equality, 18; and mistaken belief defence, 145-46; and narrow framing of rulings, 136-37; and same-sex rights, 264, 270; and sexual assault reform, 130-31, 133-37; and sexual harassment, 175, 186-87; Thibaudeau v. M.N.R., 205, 208, 209, 220. See also Charter of Rights and Freedoms Suransky, Valerie, 234 Szabo, Paul, 212, 213

United Kingdom Men’s Movement (UKMM), 77, 81 United States: backlash against feminism, 5, 6, 8, 16; development of feminism, 11-12; men’s movement, 75-76, 78-79; race and marriage, 266; reaction to 9/11, 98, 108-9, 110 universities, 164-89; changes to sex harassment policy after Mahmoodi, 183-87; diminished usage of sexual harassment policies, 184-86; early cases of sexual harassment, 169, 172, 173; and employment equity, 167, 168, 171; establish sexual harassment policies, 170-74, 175-76, 183; Marsden-Donnelly harassment case, 17779; negative environment at, 169-70; neo-liberalization of 1980s/90s, 15, 167-68, 188; and sex discrimination, 167, 171, 186; women’s presence at, in 1960s/70s, 166-67, 168. See also University of British Columbia (UBC) University of British Columbia (UBC): changes to sexual harassment after Mahmoodi, 185, 186; early sexual harassment cases, 172-73; history of women’s activism at, 170-71, 171-72; Mahmoodi v. University of British Columbia, 177, 179-83; WAG report and repercussions, 171; works out sexual harassment policy, 170-74, 175 University of Montreal massacre, 129 University of Saskatchewan, 189n9 University of Victoria, 185, 186

Tatchell, R. v. (2001), 140 taxation of child support, 205, 206, 208, 209 Temertzoglou (2002), 138, 141 Texas Fathers for Equal Rights, 81 Thibaudeau, Suzanne, 205 Thibaudeau v. M.N.R., 205, 208, 209, 220 Thobani, Sunera, 48 Thorsell, William, 50 Toews, Vic, 281 Tong, Dean, 85 Toronto Star, 34, 36, 40, 43, 53 transnational nationalism, 109

Vickers, Jill M., 167, 169 victims/victimization: and backlash metaphor, 7-8, 9; children seen as, 223, 234, 249-50, 251; of crime, 132; feminists’ view of being seen as, 7-8, 32; media coverage of, 114, 115, 178, 181-82; men as, 52, 86-87, 213-14, 218; of Muslim women by media, 114, 115; neo-liberalism’s view of, 249, 251; and sexual assault, 129, 143; society’s view of women as, 250-51 Victoria Men’s Centre, 76-77, 80 violence against women: and child custody, 201, 218-19; claims of exaggeration by fathers’ rights, 202, 215; claims of false accusation, 85, 87, 212; impeding support claims, 242; and the neoliberal state, 128-29, 132, 144; and 1990s law reform, 129-31. See also sexual assault; sexual harassment Voice of Women (VOW), 40

UBC. See University of British Columbia (UBC) Ubyssey, 170, 173 UKMM (United Kingdom Men’s Movement), 77, 81 UNICEF, 247 United Kingdom, 6, 8, 241

Index

WAG (Women’s Action Group of the University of British Columbia), 171 Walby, Sylvia, 5, 6, 66 Wappel, Tom, 208 war on terror, 106, 111, 115, 116-17 Wasylycia-Leis, Judy, 219 Weiner, Linda, 169 welfare system: childhood programs as ineffective, 244-45, 246, 253-54; and poverty rate, 243-44; recipients seen as child-like, 250-51; and same-sex marriages, 268, 269; as shelter from institutions, 248; stigma of, 238, 243 Wente, Margaret, 48, 58n3 Western superiority: history of idea, 1067; media claims of, 100, 107-8, 110; and “saving” Muslim women, 114-15, 116 W.G., R. v., 143 White, Darrin, 213-14 White, Lucy, 249 Whittaker, Jack, 206 Wiebe, Ken, 80 Williams, Joan, 230

Wisconsin, 221 Wolf, Naomi, 41 Women’s Action Group of the University of British Columbia (WAG), 171 women’s movement. See feminism women’s poverty: becomes invisible in 1990s, 236, 238, 240, 247; and childhood development programs, 244-45; link to bad mothering skills, 253-54; linked to child poverty, 235, 236, 247; physical effect of, 250; speciWc federal measures for, 242-43; and unpaid/low-wage work, 230, 231, 233, 237, 244; and women’s status as mothers, 235, 253-54 workfare, 238, 253 Yale University, 169 York University, 170 Young, Cathy, 91n2 Zhao, Yuezhi, 101 Zohrab, Peter, 72, 82, 92n14

303

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