Justifying Exclusion: A Feminist Analysis of the Conflict between Equality and Association Rights

JODY FREEMAN

ABSTRACT

The author argues that the exclusion of women from private men's clubs violates the equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms (Charter). Nor are the clubs protected by the guarantee of freedom of association in section 2(d) of the Charter. The economic and political role of ostensibly intimate social clubs and its impact on women is exposed. The application of the Charter to these clubs is discussed in light of a feminist critique of the public/private distinction. The author explores the development of both section 15 and section 2(d) jurisprudence and proposes a theory of sex equality based on an anti-subordination/participatory perspective. In the context of private clubs, the potential conflict between the Charter values embodied in section 15 and section 2(d) is resolved in favour of equality. Reliance on Human Rights Codes is proposed as an alternative to Charter litigation. Finally, an example of the "hardest case" in which equality and association conflict is presented and analyzed.

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Citation: (1989) 47(2) U.T. Fac. L. Rev. 269.
Copyright © 1989. University of Toronto Faculty of Law Review.
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