Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
Any American with even a rudimentary understanding of Canadian politics will know that when it comes to the momentum of Western progressivism, Canada has always been one step ahead of its southern neighbor. When he testified before the US Congress in 2008 about a (since-repealed but recently re-proposed) Canadian law banning speech that was “likely hateful and even contemptuous,” Ezra Levant implored his hosts to pay close attention to what happens up north. Canada, he said, is “like a political laboratory for bad experiments” and what happens there today “often happens in the United States tomorrow.” This would seem to be especially good advice today.
A big development for progressive SCOTUS-watchers last term was conservative justice Neil Gorsuch’s decision in Bostock v. Clayton County, where analysts allege he inadvertently green-lit the introduction of “intersectionality” into the high court’s jurisprudence. It is difficult to ascertain if, and to what extent, this actually is the case, as Gorsuch’s opinion was far from direct (he certainly didn’t use the term, for instance) and it’s too early to tell how lower courts will apply it in upcoming cases.
But American liberals and conservatives must be warned. Apropos Levant’s advice, not only have Canadian courts long accepted intersectionality in their human-rights jurisprudence, a recent decision by British Columbia’s highest trial court just weaponized it further, opening it up for other provincial courts to do the same.
It’s the ugliest word in the English language, says British author and journalist Douglas Murray. As originally conceived, intersectionality was a concept on critical race theory which claims people can be discriminated against through a combination of both sexism and racism at the same time and thus experience a more complex form of prejudice. But as Helen Pluckrose and James Lindsay explain in their 2020 book, Cynical Theories, the octosyllabic term has since “expanded hugely.” The term has come to describe a “social justice caste system” of sorts, where the descendants of “colonizing” whites are to be treated like the moral Dalits of western society. Such a framework, they further write, apart from being grossly simplistic, leads to impossibly knotty questions like who’s more privileged: a gay white male or a black male? What about light-skinned versus dark-skinned blacks? Do Jews and Asians “participate in whiteness” due to their relative economic success? Do trans-men need to recognize their newfound male privilege? It’s indeed bracing to think then that a court of law might actually bestow its imprimatur on such a warped approach to social relations, deeming it a legally permissible framework through which a public or private institution might conduct its affairs. Enter British Columbia’s Supreme Court.
Last year, the human rights tribunal of British Columbia rejected outright a discrimination complaint from half-white, half-Middle Eastern actress Kathleen Miller over her union having offered a filmmaking program with a stated preference for “Indigenous, LGTBQ+, and ‘diverse’ members.” Among other things, Miller, who represented herself, argued that even if motivated by reparative, minority-uplift intentions, at the very least, the union’s policy failed to appreciate sex discrimination in the industry, such as the “assault and bullying of the #MeToo movement.” In response, the union pointed to a study mentioning the so-called “diverse showrunner effect,” which describes the supposed (and, in any case, unremarkable) phenomenon that television series “showrun” by white women generally employ more white women on average, just as women of color tend to do with women of color. Like all employers, showrunners socialize with people like themselves and tend to hire people they know.
Despite Miller describing herself as “biracial” and of a “Middle East minority” on her complaint and providing no details as to her sexual orientation, the tribunal judge, a self-described “social justice lawyer” named Devyn Cousineau, stated she “presents as white” and labelled her “cisgendered” in her decision. Further, due to Miller having such a background (however superficially understood and presumptively labelled), her case, stated Cousineau, had to be handled from an “intersectional approach” and considered in its wider, “social context.” This, wrote Cousineau, meant understanding that “in today’s society, being white, cisgender and/or heterosexual are not barriers to full and free participation in social life—they are the opposite.” This also meant understanding that “in many contexts, white, cisgender, heterosexual women enjoy more advantages than men or non-binary people who, for example, are racialized, Indigenous, have a disability, or are LGBTQ+.”
Further, she wrote, it meant appreciating that, in the words of the diverse showrunner-study, “[w]omen of color and Indigenous women are not sharing in the modest gains that other women are experiencing [in film],” a conclusion, she stated, that was “consistent with how the benefits of feminist movements have been shared (or not) more broadly.” In response to Miller calling the Women In View’s study “biased” and its affirmation of intersectionality a “notorious idea,” Cousineau stated that to “fully understand and rectify” the supposed benefits-disparities of feminist movements, “it is not offensive to take an intersectional approach, but absolutely critical.” In other words, because of Ms. Miller’s racial background (or half of it), she could not have possibly been adversely impacted when she was essentially excluded from the filmmaking course.
Miller then appealed the ruling to B.C.’s Supreme Court. Although the reviewing judge, Karen Horsman, expressed some concern over Cousineau’s rush to identify Ms. Miller (“I accept that [Miller] experienced distress in having her identity defined in terms that she did not choose”), she affirmed Cousineau’s application of intersectionality, writing:
The Tribunal accepted that women generally have faced historical, and ongoing, discrimination, however, the Tribunal did not accept that all women are similarly situated in respect of the disadvantages, or that gains made in fighting sexism are shared equally among all women. The Tribunal took notice of the “notorious fact” that women with “intersecting sites of disadvantage”. . . make progress at a slower rate than white, cisgender, heterosexual women.
She stated further that women who don’t share in Miller’s privilege or who have “intersecting sites of disadvantage . . . face greater disadvantage than other women.” Because of this, she concluded, it was right to deny full consideration of Miller’s claim. She further supported Cousineau’s conclusion that, when taking a “purposive approach” to BC’s human rights code, the union’s race-centric program was actually the exact type of program contemplated by the code and that simply allowing for Ms. Miller’s challenge would deter unions and other institutions from creating similar programs—being the more racially antagonist programs, the better.
Even for Canada, this is a first. Never to my knowledge has a Canadian court (or perhaps any court in the West), expressly relied on the social justice position that white people occupy the lowest rung of a kind of moral hierarchy and, therefore, cannot have their discrimination claims fully adjudicated. Nowhere has a court asserted that a “matrix of dominance” can be consulted in order to prop up any program that bases itself on “positive discrimination.” As a result, entities like governments, universities, and employers in B.C., but also other parts of Canada, will feel far more legally comfortable in excluding white Canadians for purported social-justice reasons.
Perhaps just as alarming with these opinions was the striking misapplication of court precedent involved. When Cousineau sought to substantiate her assertion that intersectionality has long been recognized by Canadian courts (an assertion affirmed by Horsman), she cited the 2005 case of Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), in which the judge quoted from an earlier decision that “[a]n intersectional analysis of discrimination is a fact-driven exercise that assesses the disparate relevancy and impact of the possibility of compound discrimination.” Unfortunately for these judges, the decision has precisely nothing to do with intersectionality in the expanded, woke sense in which they used it.
Imported from the US, compound discrimination is an old and rather unremarkable idea that anyone can be discriminated against on a combination of grounds listed under Title VII of the Civil Rights Act of 1964—for instance, a black female due to both her race and gender. The concept is intended to cover the somewhat abstract problem that where one is discriminated against on two or more “intersecting” grounds, the totality of such an experience may not be captured by a single Title VII-ground. It first arose in a case from the 1970s where it was rejected (and it has been consistently rejected since) due to the text of Title VII stating that claims can be brought on the basis of “race, color, religion, sex, or national origin” (emphasis mine). For instance, progressive lawyers in the US have for years attempted to convince judges to take a compound reading of Title VII and this is what Gorsuch apparently opened the door to in Bostock.
Unlike the Americans, Canadian courts recognize compound discrimination (albeit to a limited extent) and have done so since the mid-1990s. And just before that, legal academics both in Canada and the US began referring to compound-discrimination analysis as intersectional analysis. In Canadian courts today, the terms are used more or less interchangeably.
It is the compound-discrimination sense of intersectionality, not the racial-hierarchy sense, that is present in the Radek case Cousineau cites (and which Horsman acknowledges) in attempting to support her contention that whites can have discrimination claims dismissed on competitive-victimhood grounds. To use lawyerly language, Radek is completely inapposite to Miller’s case.
In the Radek case, wherein a native, disabled women sued a mall when she was stopped and questioned by security, all the judge noted from an intersectionality perspective was that people like the complainant can be subjected to discrimination on a compound basis and that judges should be aware of this during their fact-finding inquiries. No race-based, moral hierarchy was evoked. The judge’s reference to intersectionality did not even appear to play a big part in his final ruling (making it arguably obiter dicta and, therefore, without precedential value). Also, numerous other decisions since have confirmed that Radek’s mention of intersectionality refers to the traditional, race-neutral sense of the term.
Where applied more substantively by Canadian courts, compound-discrimination analyses have had slightly varied application. For instance, courts have applied it when ruling that discrimination based on multiple characteristics can compound or “exacerbate the kind of mental anguish associated with discrimination.”
Courts have also evoked it when acknowledging that when a characteristic not covered under discrimination law (e.g. pregnancy) “intersects” with one that is (e.g. gender), judges should try to characterize the discrimination so that the victim is covered.
Obviously, none of the above has much to do with Miller’s facts or Cousineau’s ruling. In these and other cases, not only did discrimination against white, “cisgendered” people on the ground of disparate employment figures not come up—however hard or flimsy such proof may be—but none of the plaintiffs were white. And perhaps most tellingly, all of them, including Radek, pre-date the newer, woke-sense of intersectionality by at least a decade.
Moreover, there’s nothing in these cases to say that an intersectional or compound analysis cannot apply to white women or white men—who, just like black females in the US, are not specifically provided for in Title VII. Indeed, as one US academic has stated, courts appear to have ruled on a compound-discrimination basis when it comes to white males in the past. In fact, Canadian courts have applied an “intersectional analysis” to white plaintiffs before, specifically in a case where an elderly white male was laid off for both his age and perceived disability. The judge there noted specifically that the plaintiff was discriminated against on an “intersectionality of prohibited grounds,” including age and disability; an “attack,” he noted, “on two aspects of his dignity, feelings and self-respect.” Like the other cases, nothing in this case speaks to a racial hierarchy of moral worthiness when it comes to discrimination claims. And in spite of this, Horsman states Cousineau’s analysis was “entirely consistent with established human rights principles . . .”
A judge in Quebec has actually addressed the problem of meshing the two versions of intersectionality recently. In a case involving that province’s new “anti-Hijab” law, the judge observed that the plaintiffs were asserting that Canadian constitutional law recognized intersectionality in the woke sense. But when reviewing a major case discussing “intersectionality,” he found that it actually “speaks more of interrelated or combined grounds of discrimination . . . and not intersectionality.” What the case really dealt with, the judge noted, was whether a “more severe discrimination” had taken place above and beyond the separate claims being asserted. Whether the plaintiffs were applying a bait-and-switch tactic was not addressed.
That this was simply bad judgeship on Cousineau’s part, of course, is up for argument. Indeed, Horsman did acknowledge that Cousineau completely got wrong a basic part of the BC code which prohibits public displays showing an intent to discriminate—Cousineau had stated Miller had to show she had actually been rejected because of her race, which is both silly (as Miller countered, why expect someone to apply to something that specifically excludes them) and against the clear text of the statute. But clearly, an intentional bait-and-switch tactic involving traditional and woke intersectionality can’t be ruled out either. After all, “social justice lawyers,” like all moral crusaders, see themselves as quite literally fighting evil. When fueled by such a lofty duty, nothing is off the table, including playing unfairly. Considerations for process, professionalism, and principle do not factor in the mental calculus of driven zealots.
Despite such a consequential ruling resting on the thinnest of justifications, Horsman affirmed that Miller’s deprivation led to minority-uplift and, therefore, was in furtherance of the purposes of BC’s human rights code. Saying that all white people are comparatively advantaged (in the BC film industry or elsewhere) and, therefore, face no adverse impact from exclusionary programs, one would think is the kind of sweeping statement that would at least demand thorough substantiation and a probing enquiry—that is, something more than unscrutinized conclusions taken from a questionable advocacy group. It doesn’t take a lawyer to see that giving oneself the license to eviscerate an individual’s rights due to their race with next to no justification and based on an empirically untested and sophomoric concept like the “matrix of domination” is indeed a scary state of affairs. What needs to be closely considered is the following from Douglas Murray’s latest book, The Madness of Crowds:
To say that intersectionality has not been thought through is an understatement. Together with its other faults it has not been put to the test in any meaningful way anywhere for any meaningful length of time. It has the most tenuous basis in philosophy and has no major work of thought dedicated to it. To which someone might respond that there are plenty of things that haven’t been tried yet and that don’t have a fully worked-out structure of thought behind them. But in such cases it would ordinarily be deemed presumptuous, not to say unwise, to try to roll out that concept across an entire society, including every educational institution and every profitable place of business.
Let’s hope legislators, lawyers and/or other, wiser judges from both sides of the 49th parallel wake up and start working towards curbing intersectionality-creep in their legal systems.