The masterful construction: An analysis of liberal theories of equality.

Abstract

This thesis reviews the Supreme Court of Canada's (the "Court") interpretation of equality, particularly, gender equality. It is argued that liberal theories of the state have influenced and continue to influence the development of the meaning of equality. With the development of human rights and the introduction of section 15 of the Canadian Charter of Rights and Freedoms, the Court has become more informed on gender issues. However, the Court has maintained an approach to equality which is rooted in the liberal paradigm. This thesis argues that cultural characterizations of women's social, political and economic roles in society ("gender identity") affect which liberal theory of state the Court will use when determining an equality issue. For example, if the equality issue impacts on a woman's ability to conform to an accepted gender identity, such as to be a good mother, the Court will more readily adopt a concept of equality which allows state action to promote community values. If the equality issue challenges accepted gender identity, the Court will more likely adopt a traditional equality approach. This paper begins by examining liberal theories of the state with an emphasis on conceptions of the individual and the state. Next, the paper considers how the liberal theory of the state has been applied to the legal system and the critiques of this application. Finally, a detailed description of the liberal notion of equality is provided with a discussion of how different readings of gender identity may affect the Court's approach to equality. (Abstract shortened by UMI.)