As the court challenge of Quebec's secularism law — commonly known as Bill 21 — continues this week before the Quebec Court of Appeal, groups contesting the law argued Tuesday Bill 21 overwhelmingly discriminates against Muslim women.
The Quebec government and several civil liberties groups are presenting arguments about a Superior Court decision last year, which upheld most — but not all — provisions of the law.
Enacted under the Coalition Avenir Québec government in June 2019, the secularism law prohibits public school teachers, police officers, government lawyers, a host of other civil servants and even some politicians from wearing religious symbols at work.
The province pre-emptively invoked the constitutional notwithstanding clause when drafting the legislation, in order to protect it from potential court challenges.
That means lawyers arguing against Bill 21 are trying to present arguments about provisions of the Constitution that generally cannot be overridden by the notwithstanding clause, including the right to gender equality.
Only Muslim women have lost jobs over Bill 21
Perri Ravon, the lawyer representing the English Montreal School Board, argued Tuesday that Bill 21 was designed to target one group in particular: Muslim women who wear the hijab.
"The expert evidence in this case accepted by the trial judge establishes that Bill 21 is likely to increase the prejudice faced by Muslim women more than any other group," Ravon told the panel of three judges.
Ravon noted that in the EMSB, eight people have lost jobs or been denied employment due to Bill 21. All were Muslim women.
At the largest French-language school service centre in the province, the Centre de services scolaire de Montréal, Ravon noted that the human resources director was unable to provide an exact number of people who'd lost their job, other than to say 100 per cent of cases dealt with the hijab.
Ravon said she could find no examples of anyone in any organization across the province losing their job due to Bill 21 other than Muslim women.
"Who's losing their job because of Bill 21? What symbol is drawing negative attention? The hijab, every time," Ravon said.
Ravon said it was clear through statements from the CAQ government about gender equality that Bill 21 was designed in large part to target the hijab and that the original trial judge accepted this argument.
Julius Grey, the lawyer representing the Quebec Community Groups Network and the Canadian Human Rights Commission, agreed.
"The centre of this law, the jewel in the crown for the government, is the hijab," Grey told the court.
Grey and Ravon, along with the lawyer for a prominent women's group, the Fédération des Femmes du Québec, argued that Bill 21 should be struck down because it's clear it discriminates based on gender and that the guarantee of gender equality cannot be quashed by the notwithstanding clause.
Government argues law doesn't discriminate based on gender
The lawyer for the attorney-general of Quebec said its position is that the right to gender equality is a "general guarantee" that is not necessarily protected from being overridden by the notwithstanding clause.
Amélie Pelletier-Desrosiers also noted that most teachers are women, and so it's not necessarily discriminatory if Bill 21 affects women more than men in the teaching profession. She argued that any rule or code of conduct involving teachers will disproportionately affect women.
Christiane Pelchat, the lawyer for another feminist group, Droits des femmes du Québec, argued that rather than discriminating on the basis of gender, Bill 21 was in fact a safeguard against such discrimination.
"The state can't associate itself with a religion that suggests a woman cannot appear in public without being covered in some way," Pelchat said.
Bill 21's impact on freedom of religion
Also debated Wednesday was whether Bill 21 infringes on the constitutional guarantee of freedom of religion.
Luc Alarie, a lawyer for the secular group Mouvement Laïque Québécois, argued that Bill 21 protects freedom of religion.
Alarie noted that parents have a constitutional right to educate their children about religion according to their own beliefs and thus the state has an obligation to maintain religious neutrality in schools.
Alarie argued that the behaviour of teachers has an enormous influence on their students and that religious symbols worn by teachers might communicated "moral values" that would affect students and thus deprive parents of their constitutional right to freedom of religion.
"The state has an obligation to religious neutrality, regardless of the consequences that might have," Alarie said.
Molly Krishtalka, a lawyer for a group that opposes the bill, Coalition Inclusion Québec, countered that individual actions of state employees do not necessarily represent the views of the state.
"My colleague thinks that a teacher, by wearing a cross, is demonstrating that the entire state is adhering to the Catholic faith," Krishtalka said.
"It's not every single action by a representative that is going to bind the state to a religious view. The wearing of a religious symbol does not constitute the endorsement by the state of that religion," she said.
The arguments will continue until Thursday, with an additional day set aside next week in case the panel of judges has additional questions.