Course:Law3020/2014WT1/Group C/Feminist Jurisprudence

Introduction

Feminists are concerned with the historical and modern day disadvantages of women in society. Feminist theorists fall along a wide range spectrum, from liberal to radical feminists. Liberal feminists see individuals as the fundamental entity of society and are concerned about injustices to individuals. Radical feminists, and post-modern feminists focus on the social construction of gender within patriarchy and encourage the governments to intervene to protect the interests of disadvantaged groups such as women. Radical and post-modern feminists recognize the reality of lived difference or biological reality of being a woman. In order to determine how a feminist jurisprudent would understand the decision in Moore, we can examine the laws at issue and the judicial interpretation of those laws through the feminist perspective. S. 8 of the BC Human Rights Code prohibits a person to “discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons” (Human Rights Code, R.S.B.C. 1996, c. 210, s.8). Although this case is focused on discrimination based on mental disability, s.8 is clear in protecting equality rights based on gender as well, thus attempting to provide equal opportunity and treatment under the law to both men and women. The remainder of this section will present an analysis of the ruling from the perspective of the varying feminist schools of thought.

Analysis

Liberal Feminism

Liberal Feminist theory believes that, human beings are "moral equals", and thus women are entitled to equal treatment under the law. A liberal feminist believes that no individual on the basis of his or her gender, race, ethnicity, or another identifiable characteristic, should be excluded from participating in the public or private domain. Liberal feminists reason that the solution to the oppression is to provide equal opportunity to all. The ruling in Moore directly supports this principle in liberal feminist theory. The case revolved around Jeffery Moore’s mental capacities and his access to general public schooling education in BC. Justice McLachlin agreed that excluding him of those public resources was discriminatory and affirmed the decision of the lower courts. The Liberal feminist perspective sees Moore, and every disadvantaged person, in morally equal status to everyone else; he would be equally guaranteed a right to public education. McLachlin C.J stated that s.8 of the BC Human Rights Code was violated by the school districts actions, and it would be certain that a liberal feminist would agree.

Radical Feminism

Radical Feminists theorizes that gender is a patriarchal social construct that is intended to overpower women. The social construct appears to be based biologically and affects every aspect of life. Radical feminists believe that the patriarchal system creates a predisposition of a set of activities and the role of women in society. Radical Feminists believe the only way to change the system, is to reexamine our nature and relation to others. In the case of Moore, a student suffering from a mental disorder is arguing for the same access to education as a person with a non-mental disability. Feminists may be concerned with comparing mental disordered students to non disabled students in order to determine the treatment offered by the school system. Children suffering from mental disorders require special accommodation and treatment to ensure an equal access to education to the public that is akin to the argument of feminists who say that women require special treatment in order to ensure equality with males.

Marxist/Socialist Feminist Perspective

Socialist feminists idealist society goal is to ensure no economic class is exploited by another. Marxist and socialist feminists argue that equality for women is not possible in a capitalist society. A capitalist society is established on principles of private property and the exploitation of the powerless, and thus do not foster an environment for equality. Marxist-Socialist feminism is based on the idea that before capitalism there was no patriarchy. It is a branch of radical feminist theory that suggests that the oppression of women is a reflection of the capitalist system. They believe that by the economic value in labor, the domestic sphere and role of women in this area is not valued. The value of child bearing and rearing, and home-based tasks are worthless in a capitalist economy because there is no monetary value to them. Historically, because women are more likely to represent the domestic sphere and the only value of person was his ability to make profit, this therefore has led to the oppression of women. Examining this case from a Marxist-socialist feminist perspective, a Marxist feminist would likely focus on the fact that the District cut accommodating services due to financial difficulties during the relevant period. It was found that the cuts were made disproportionally to special needs programs despite other programs such as Outdoor School being of similar cost. While eliminating the Diagnostic Centre this made accommodation services necessary to make the core curriculum accessible to needy student’s unattainable, whilst other extra school services were unaffected. “More significantly, the Tribunal found, as previously noted, that the District undertook no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed” (Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, para 52). Marxist feminists would argue that the capitalist economy has made exploitation of the powerless a common occurrence and therefore the District neglected the special needs students.

Relational Feminist Perspective

Relational feminists focus on women’s social differences in society and their different moral values, responsibilities and work roles. Due to the way people are socialized, real differences are created between men and women. Women’s socialization produces a different moral perspective and understanding. Relational feminist do not believe this to be a problem to overcome, rather it is something that has to be accepted in order for women to be recognized in the male dominant system of society. Relational feminists insist that the public sphere must incorporate the ethics of care, and must change and adapt to place more value on the qualities of women. In essence the system needs to view women more like women, rather than have women change to suite the male dominant system. In the case of Moore, relational feminists would support the decision because it is incorporating the needs of disabled students into the public education sphere, and considering the feminine ethics of caring for children.

Post-modern Feminism

Postmodern Feminism denies the use of "Grand Theories” in explaining the role of women and the female experience. They focus more on the concrete, real life experiences of women. Postmodernists do not propose just one solution to the oppression of women, as this would lead to the assumption that all women suffer the same kind of oppression. They believe that the patriarchal system oppresses the margins, and to help the position of women in this society, diversity should be brought forward and encouraged. Postmodern feminists would look at the Moore case on an individual basis, as each student who has a mental disorder suffers uniquely. In the Supreme Court Decision, McLachlin C.J states , “If Jeffrey is compared only to other special needs students, full consideration cannot be given to whether he had genuine access to the education that all students in British Columbia are entitled to” (Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, para 31). Thus a postmodern feminist would support McLachin’s analysis of Moore's circumstances on an individual basis.

Catherine MacKinnon

Catharine MacKinnon argues that law is a male creation, reflecting values from the male point of view as the ideal standards. These particular male values include judicial review, reliance on precedent, the separation of powers, the division between public and private law, and the “reasonable person.” MacKinnon believes that males design the norms of society and laws highest standards otherwise known as constitutions. She even suggests that many legal precedents were shaped and formed before women were allowed to express their perspective through the means of voting or power control. Catharine MacKinnon would most likely argue that the BC Human Rights code reflects the male standards as ideal and thus a means of promoting the ideal individual, disregarding not only females but other disadvantaged groups such as the mentally disabled.

Treatments of Selected Theoretical Perspectives

Legal Perspectives		Philosophers
	Natural Law	Thomas Aquinas
	Legal Positivism	John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
	Separation Theory	HLA Hart
	System of Rights	Ronald Dworkin
	Liberty and Paternalism	John Stuart Mill and Gerald Dworkin
	Law as Efficiency	Susan Dimock
	Feminist Jurisprudence	Patricia Smith and Catharine Mackinnon