Opponents argue Bill 21 affects women more than men and is unconstitutional
MONTREAL — Opponents of Quebec’s secularism law introduced a new legal argument in Appeal Court Tuesday, saying that Bill 21 disproportionately affects women and therefore violates the Constitution.
Lawyer Olga Redko argued Bill 21 violates the sexual equality guarantees in the Canadian Charter of Rights and Freedoms — which are not shielded by the notwithstanding clause that the province has invoked to avoid court challenges.
Virtually all the people affected by the law so far are women teachers who can’t find work because they wear the Islamic head scarf, Redko told the three-judge Quebec Court of Appeal panel. “This law was applied ... and the impact is overwhelmingly — if not exclusively — on women.”
Quebec’s secularism law prohibits public sector workers deemed to be in positions of authority, including teachers and police officers, from wearing religious symbols at work.
A national Muslim organization, a civil liberties group and a university student who wears the hijab failed in Superior Court to have the central components of the law suspended while their full legal challenge is heard. Superior Court Justice Michel Yergeau ruled July 18 that the groups and the student did not demonstrate Bill 21 was creating enough damage to warrant a stay.
Yergeau noted in his July ruling that the plaintiffs were severely limited in their stay application because Bill 21 invokes the Canadian Constitution’s notwithstanding clause. That clause prevents citizens from challenging a law for violating parts of the charter that protect fundamental rights and freedoms.
On Tuesday, Redko cited Section 28 of the charter, which states the rights and freedoms in the document are guaranteed equally to men and women. That section is not covered by the notwithstanding clause.
Redko told the appellate court “the factual situation has changed” since the Superior Court hearing, when her legal team didn’t raise the Section 28 argument. Since the law went into effect, she said, it has become increasingly clear that the vast majority of people affected are women who wear the hijab and who want to be public school teachers.
They can’t find work or have had to leave the province, she said.
Chief Justice Nicole Duval Hesler said from the bench that she and her two colleagues need to weigh the harm done to Quebec society if the law is suspended against the harm caused to female teachers if the law is maintained.
“What is the balance of convenience?” she asked. “The visual allergies of certain people or the fact that teachers lose the right to enter into the profession of their choice?”
Hesler said the court would rule in the coming weeks or months.