Unit 3
Women’s Legal Personality: A Test Case

Overview

Given that this course deals with equality and the law, much of its focus is jurisprudence, or case law. You have now read some excerpts of judicial rulings and opinions. However, you may remain unsure about how to analyze a case. This unit will introduce you to basic elements of legal reasoning and teach you to identify the ways that courts answer legal questions. To do this, you will refer to the constitutional reference launched by the Famous Five in 1927. Often referred to as the first feminist litigation in Canada, The Persons’ Case shows how legal arguments are used to both dismiss and uphold women’s equality claims.

A reference is a special kind of court proceeding where the Court is asked for its opinion on a legal question outside of an existing dispute. For example, in the Persons’ Case, none of the women involved had been personally refused a Senate appointment. However, they wanted the Court’s opinion on whether all women could legally be excluded from the Senate.

Learning Objectives

After completing this unit, students should be able to

1. identify the major approaches to constitutional interpretation.
2. analyze both court decisions in the Persons’ Case in terms of the major approaches to constitutional interpretation.
3. discuss ways in which feminist methods and rationale can be integrated into court decisions.