This day, which was originally called International Working Women’s Day is a day whose theme ranges from country to country and year to year. The Status of Women Canada’s website describes this year’s theme to be to celebrate “women's roles in the economic prosperity of rural, remote and Northern regions.” If you look at the website there are a number of interesting facts regarding the work of women in these communities.
In my employment law class today we will be discussing one of Canada’s most important decisions regarding women, the Meiorin, case. This is the case of Tawney Meiorin, firefighter, member of the initial attack crew of the wildland forest fire fighting team in the Golden forest district of British Columbia. When the BC government instituted new fitness standards, Meiorin was unable to meet one of the requirements – running 2.5 k in 11 minutes. She did 11:40. The run has nothing to do with outrunning fires – just a way to test aerobic fitness. The basis of the case was the fact that this standard could be met by 70% of men on their first try but only by 35% of women. Moreover, even after training women had a more difficult time than men of attaining the standard. The Supreme Court of Canada took the opportunity to set new tests for how employers may implement workplace standards. Only where it is not possible to accommodate, can the standard remain; if accommodation is possible, then the standard must be replaced with something that reflects genuine inclusiveness.
One of the other important cases I always address in class in the famous Person’s case. In that case, though not related to employment per se but rather to the office of Senator of Canada. Emily Murphy had been appointed a police magistrate in Alberta in 1916 but was initially challenged on the basis that only person’s could become magistrates. The Alberta court held that women were indeed persons. When Murphy later let her name stand for an appointment to the Senate of Canada she was rejected all the way through to the Supreme Court of Canada on the grounds that only “persons” could be appointed to the Senate. On appeal to the Privy Council (division of the House of Lords in England which used to be our final appeal option) Lord Sankey held: "yes, women are persons ... and eligible to be summoned and may become Members of the Senate of Canada.. . . The exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word "persons" should include females, the obvious answer is, why should it not?"
Prior to the Emily Murphy case, Clara Brett Martin, fought to be admitted to the law profession and was initially denied on the reasons that she was not a person. In 1897 Martin became the first woman to practice law in Canada and the entire British Empire. To do this she overcame opposition to women lawyers on grounds that feminine attributes could unduly sway judges and juries. She lobbied to overturn regulations that barred women lawyers because only “persons” could be admitted. As I have noted in earlier posts, more than half the admissions to law schools today are women. Yet it was just over 100 years ago when the Chief Justice of Wisconsin, Edward J Ryan held in the case of Lavinia Goodell:
We find no statutory authority for the admission of females to the bar of any court of this state. And, with all the respect and sympathy for this lady which all men owe to all good women, we cannot regret that we do not.
We cannot but think the common law wise in excluding women from the profession of the law. The profession enters largely into the well being of society; and, to be honorably filled and safely to society, exacts the devotion of life.
The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of the law, are departures from the order of nature; and when voluntary, treason against it.
The cruel chances of life sometimes baffle both sexes, and may leave women free from the peculiar duties of their sex. These may need employment, and should be welcome to any not derogatory to their sex and its proprieties, or inconsistent with the good order of society.
But it is public policy to provide for the sex, not for its superfluous members; and not to tempt women from the proper duties of their sex by opening to them duties peculiar to ours.
There are many employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife.
Nature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battle field.
Womanhood is moulded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene, in human life. It would be revolting to all female sense of the innocence and sanctity of their sex, shocking to man's reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice; all the unclean issues, all the collateral questions of sodomy, incest, rape, seduction, fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, abortion, infanticide, obscene publications, libel and slander of sex, impotence, divorce: all the nameless catalogue of indecencies, la chronique scandaleuse of all the vices and all the infirmities of all society, with which the profession has to deal, and which go towards filling judicial reports which must be read for accurate knowledge of the law.
This is bad enough for men. We hold in too high reverence the sex without which, as is truly and beautifully written, le commencement de la vie est sans secours, le milieu sans plaisir, et le fin sans consolation, voluntarily to commit it to such studies and such occupations.
Non tali auxilio nec defensoribus istis (not such aid nor such defenders does the time require), should juridical contests be upheld.
Reverence for all womanhood would suffer in the public spectacle of woman so instructed and so engaged. This motion gives appropriate evidence of this truth. No modest woman could read without pain and self abasement, no woman could so overcome the instincts of sex as publicly to discuss, the case which we had occasion to cite supra, King v. Wiseman. And when counsel was arguing for this lady that the word person necessarily includes females, her presence made it impossible to suggest to him as reductio ad absurdum (disproof of a proposition by showing that it leads to absurd or untenable conclusions) of his position, that the same construction of the same word would subject woman to prosecution for the paternity of a bastard, and to prosecution for rape.
Discussions are habitually necessary in courts of justice, which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety.
If, as counsel threatened, these things are to come, we will take no voluntary part in bringing them about.
Take a look at my post from January 23rd below called Boys Night Out Part II to get a more current look at women in the profession.