Must feminists support entrenchment of sex equality? Although an affirmative response might appear self-evident, recent events in the Canadian province of Quebec might give feminists pause. The issue was not whether the province should entrench its first sex equality provision; the Quebec Charter of Human Rights and Freedoms (“Quebec Charter”) prohibited sex discrimination from its inception in 1975. Tensions arose among Quebec feminists over the proposal to add a second sex equality provision to the Quebec Charter. They did not articulate their tensions in terms of competing visions of sex equality: discrimination versus equality. Instead, the dominant theme was conflicting constitutional rights: sex equality versus religious freedom. Accordingly, an analysis of Quebec's experience may be instructive for feminists who are interested in issues of constitutional design in other jurisdictions.
In what follows I describe the constitutional setting, the origins of the proposed amendment to the Quebec Charter, and the tensions it exposed among feminists in Quebec. Although they disagreed over the all-or-nothing question of whether to entrench the second sex equality provision, I approach the issue of constitutional design from a different perspective, namely that sex equality provisions serve multiple functions. I argue that Ayelet Shachar's theory of joint governance illuminates the identity of feminists who are not served by Quebec's proposal, because they require a sex equality provision that protects intersectionality. After reviewing how such a provision might be designed, I suggest nevertheless that this second function could be performed by Quebec's amendment.