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Equality rights for LGBTQ+ peoples have a politically vexed relationship with substantive equality around the world. Critiques of the structural limitations and harmful, unintended consequences of rights claims have abounded in critical legal theory for decades. This chapter intervenes in these debates by mapping the structure and rhetoric of equality rights for LGBTQ+ peoples. Applying a legal analytical framework that originates in Eve Kosofsky Sedgwick’s writing, the chapter focuses on the text of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, released in 2007 and supplemented in 2017. The rhetoric of the Yogyakarta Principles is trapped in what Sedgwick calls a “radical and irreducible incoherence” between conflicting conceptions of gender and sexuality that has constrained the mission of substantive equality worldwide, yet which may be fundamental to the praxis of rights claiming in the international human rights system. Equality rights talk is “queer” in this sense – irresolvable in theory, powerfully productive for LGBTQ+ peoples in certain legal contexts, and profoundly harmful to LGBTQ+ peoples and other equality-seeking groups in other legal contexts. Considering this fact, the chapter concludes by arguing that LGBTQ+ activists should think about how we might negotiate the conflicts of equality rights rhetoric more strategically and responsibly by operating, paradoxically, both within and without the constraints of international human rights system to promote gender and sexual diversity on the global stage.
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This review essay considers the universality of dilemmas and tensions that arise in class action litigation, wherever practised. It does so by exploring the evolution of the Australian class action in its doctrinal, political and historical dimensions, as recounted in Michael Legg and James Metzger’s edited collection of papers, The Australian Class Action: A 30-Year Perspective. While the book is rooted in the Australian experience, it lays bare common themes across jurisdictions, such as the unique role of the judge in a class action, the challenges to effective representation, and concerns about the commodification of litigation.
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While much of Canada’s early commitment to religious freedom was simply a pragmatic compromise to ensure social peace and political stability, the Supreme Court of Canada in a series of judgments that pre-dated the Charter sought to articulate a principled account of religious freedom as an “original freedom” that is an important “mode[] of self-expression” and “the primary condition[] of the community life”. This understanding of religious freedom shaped the Supreme Court of Canada’s initial reading of freedom of conscience and religion protected by s. 2 (a) of the Canadian Charter of Rights and Freedoms. However, the story of religious freedom in Canada is not simply that of a linear progression from the pragmatic tolerance of religious minorities to the principled protection of the individual’s religious freedom. In its subsequent s 2 (a) decisions, the Court began to read freedom of religion as a form of equality right that requires the state to remain neutral in religious matters. The state must not prefer the practices of one religious group over those of another and it must not restrict the religious practices of a group unless it has a substantial public reason to do so. Underlying the Court’s commitment to religious freedom is a recognition of the deep connection between the individual and her/his spiritual commitments and religious community and a desire to avoid the marginalization of minority religious groups. Concerns about inclusion and social peace that lay behind the extension of religious tolerance in Canada’s early history continue to be important in the contemporary justification and interpretation of religious freedom. The Court’s commitment to state neutrality in religious matters requires it to distinguish between the private sphere of individual or group spiritual life and the sphere of public secular life. However, the line between these two spheres is contestable, moveable, and porous.
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An article from Windsor Yearbook of Access to Justice / Recueil annuel de Windsor d'accès à la justice, on Érudit.
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Migrant farmworkers are a ubiquitous but invisibilised, expropriated and exploited component of the global agricultural economy. Their conditions took centre-stage during the COVID-19 pandemic. Fear of production disruption in the migrant labour-intensive sectors led to foreign workers being deemed ‘essential’ in many countries, and exceptional procedures and regulations were instituted that further increased their exploitation, illnesses and deaths. However, the pandemic has not merely exposed the long-established structures of racialised exploitation and expropriation in the domain of farm work. Although it exacerbated the precariousness of the living and working conditions defining the reality of migrant farm workers, there is evidence that the pandemic also strengthened farmworkers' individual and collective consciousness, along with forms of organisation and resistance. The symposium ‘Migrant Farmworkers: Resisting and Organizing before, during and after COVID-19’ explores two dimensions reflected in migrant farmworkers' realities during the pandemic. First, the contributions look at the general conditions defining power structures and material outcomes within the political economy of agriculture before and during the pandemic. Second, they explore the conditions under which resistance and solidarity emerged to question established structures of exploitation.
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