August 18, 2004

Are Women Persons?

Emily Murphy I have to admit that I tend to be a bit skeptical of claims that "sexist language", such as the use of he as a generic, has a significant influence on people's thinking, but it is true that people can and will use gender-specific language to their advantage. I was reminded of this by the announcement that on October 17th Canada will issue a new $50 bill, which will bear on the back portraits of the Famous Five along with Thérèse Casgrain. If you're not Canadian, you probably don't know who any of these people are. Thérèse Casgrain (English version) was a human rights activist and politician who died in 1981. The Famous Five were Emily Murphy (shown above left), Louise McKinney, Irene Parlby, Nellie McClung, and Henrietta Muir Edwards. They are called the Famous Five because of their role in the Persons Case.

The Persons Case arose when Emily Murphy was named a magistrate in 1916. Some lawyers challenged her appointment on the grounds that she could not perform the duties of a magistrate because she was not a person. They based their argument on the wording of the British North America Act of 1867, the law that established the Dominion of Canada and served, in effect, as its Constitution. In modified form the BNA Act remains the Constitution of Canada as it was incorporated into the Constitution Act of 1982. The BNA Act used the word persons when referring to more than one person, and the word he when referring to a single individual, which led some to infer that as a matter of law only men were persons. In 1927 the Famous Five sought a declaratory judgment from the Supreme Court of Canada. One might think that the view that women are not persons was already an anachronism in 1927, as (white) women had already obtained the right to vote in 1918, due in considerable part to the efforts of Nellie McClung, but the Supreme Court ruled that indeed women were not persons. You'd think that the Justices of the Supreme Court would have been clever enough to recognize that he was used generically, not specifically in reference to men, wouldn't you? This was not the Supreme Court's finest hour. The Famous Five then appealed to the Judicial Committee of the Privy Council in London, which until 1949 served as the court of last resort for Canada in civil matters. On October 18, 1929, the Law Lords ruled unanimously that women were indeed persons.

Posted by Bill Poser at August 18, 2004 03:25 AM