“Never explain, never retract, never apologize. Just get the thing done and let them howl.”

March is Women’s History Month (in the US).

This is a series of posts about women whose life and work have made a difference to me.

If you’ve lived in Canada for the last ten years, you’ll be familiar with Heritage Canada’s History Vignettes – these are high quality minute-long vignettes about Canadian history…which is one of those rare cases where a Government department or ministry actually gets around to naming something in a sensible manner. ANYWAY. One of those history vignettes talked about the “Famous Five” – feminists in the late 19th/early 20th century who advocated on behalf of the inclusion of women in the federal definition of what a “person” was.

Famous Five
Famous Five

Would you like to know what I learned about these women in high school? I’ll tell you: dick all. When I took Canadian history in high school, I learned about Acadia (in which we very lightly skimmed over the systematic eradication of the Beothuk peoples), the establishment of Upper and Lower Canada, the fur trade, the “Riel Rebellion” (although, in Northern Saskatchewan where I went to high school, there was a fairly strong divide between the people who considered Riel to be a traitor and the people who considered him to be a visionary and humanitarian. I was part of the latter group), the Great Depression, Tommy Douglas, Pierre Trudeau, Confederation, and the Patriation of the Canadian Constitution. There was no discussion about women’s rights and feminism. The word “suffragette” was bandied about in relation to women’s rights, but we talked about that in terms of what had been done in the United States.

My grandmother and my mother had told me about how women weren’t supposed to be in public houses until sometime in the 40s or 50s (I don’t remember now exactly how that goes, but my grandmother once told me a story about walking into a pub to haul one of the regulars out by the collar because his wife had just gone into labour, and how she damn near got hauled up in front of the RCMP because of it). If it hadn’t been for my mother and the books she had about gender equity, feminism, and women’s rights, I wouldn’t have learned ANY of this. Our history books were written by dead white British dudes, so clearly the history of women’s rights in Canada was simply not important enough to make it in to the final cut of the textbooks.

Nellie McClung, Louise McKinney, Emily Murphy, Irene Parlby, and Henrietta Muir Edwards all petitioned the Canadian government to explicitly include women in the legislated description of what a “person” was. Each of them was an activist. Each of them championed a cause that to them meant a better life for women and children. But what exactly does that mean?

The  British North America Act, 1867 was the legislation that governed Canada (and technically, is still part of our federal constitution). It defines our government’s structure, our tax system, and our judicial system, among other things. When Emily Murphy wished to attend a court case in Alberta in the early 1900s involving a charge of prostitution against a woman, she and the group of women’s rights activists with whom she was attending were ejected from the courtroom. The claim was that the charges to be read and decided upon were not appropriate for a “mixed audience”. Murphy went to Alberta’s Attorney-General and claimed that if charges against a woman were not fit for “mixed company”, then that woman ought to be tried by women in a female-only trial. In what I can only assume was a shocking decision, the Attorney-General agreed with Ms. Murphy and appointed her to be the judge for the case. And here’s where things get stinky.

A lawyer claimed that Murphy was not *eligible* to be appointed as a judge because according to the British North America Act (which outlines our judiciary process, remember), women were not included in the legal definition of “persons”. A British ruling from 1876 had ruled that women could suffer penalties, fines, and punishments, but that they were not eligible for rights and privileges. I’d like you to just think about that for a moment.

As a woman, due to that ruling, if someone wanted to follow the letter of the law (and this was used against women fairly regularly), you could be jailed, taxed, fined, executed, etc.. The government would be MORE THAN HAPPY to consider you a taxpayer, but you would not have the right to say what you thought the government should do with your taxes. You would, technically, not have the right to say anything. You could not acquire a driver’s permit. You could not own land. Any contracts you signed would not be legally binding. You could not, in fact, have a bank account in your name. The only way you could do these things would be if you had a man sign his name *for you*. You could attend public meetings at the whim of the government. You could send your children to school and pay education taxes, but you could not speak out against corporal punishment or the curriculum. Unless your husband, father, brother, uncle, or son “vouched” for you.

This is not ancient history. Women were not legally-defined “persons”, even after they had worked in munitions factories during the war, even after they had worked as nurses and had died in the name of their country. Even after they had won Nobel Prizes (although usually not alone) and made enormous contributions to sciences, art, social welfare, and the humanities.

Some ten years after Emily Murphy was prevented from taking a judicial appointment, she and four other Canadian women challenged the Government of Canada to refer questions regarding a woman’s eligibility to serve on the Canadian Senate to the Supreme Court of Canada. Specifically, they were questioning whether the definition of “qualified Persons” in the following clause included females:

Summons of Senator

24. The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.

Even though womens’ roles in society had changed since the legislation was drafted in the previous century, and even though the five Supreme Court Justices agreed on that point they ruled that since the 1867 legislation prevented women from sitting in Parliament (in fact, the common law held that women were “incapable” of exercising public functions), there would have to be explicit legislation changing the definition of “qualified Person”. All five Justices ruled that women were not, in fact, qualified to sit in the Senate.

The “Famous Five” continued to push and took the case to appeal with the Privy Council. It was here that they were successful in having the legislation more broadly interpreted, thus permitting women to be included in the definition of “qualified Persons” in 1929. In those intervening years, women had been granted the right to vote, but not to serve the people of Canada in an elected nor appointed capacity, until this decision was handed down.

While it seems pretty nit-picky and it might seem like small potatoes now. But women weren’t granted the right to vote in federal elections until 1919. In Quebec, women weren’t eligible to vote until 1940 (as a discouraging side note, Aboriginal peoples were not granted the right to vote without forfeiting their legal “Indian status” until 1960).

For fighting for the rights of women to be equal under the law, I include all five of the women who championed the “Persons case” (Edwards v. Canada) in my list of women who did impressive and important things.

cenobyte
cenobyte is a writer, editor, blogger, and super genius from Saskatchewan, Canada.

2 Comments

  1. I wrote a report on Nellie McClung in about grade 5, and it wasn’t until then that I realized I might have to fight for what was mine. It was emboldening to know that I could and should.

  2. Thanks for the education about Canada – why is it that one group always finds someone to be inferior so they can claim to be ‘superior’?

    And the battle is still being fought in a lot of the rest of the world.

i make squee noises when you tell me stuff.

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