Gender discrimination in the Canadian Military

Women have played a role in the Canadian Forces for over 100 years. During World War II, women were restricted to non-combative positions such as nursing, cooking, communication, logistics, and administration.^[3] In 1971, following the recommendations from the Royal Commission on the Status of Women, the Canadian Armed Forces sought to expand the range of positions women could fill. Due to this expansion, women became employable as vehicle drivers and mechanics, aircraft mechanics, air-traffic controllers, military police, and firefighters. When the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms came into force in 1985, the Canadian Armed Forces’ policies were amended to allow women to serve at sea, in army service battalions, field ambulance units, and in most air squadrons. By 1987, women were permitted to occupy direct combat posts on the ground and at sea.^[4] While equality legislation was being passed, the defence minister conducted many trials on Service Women in Non- Traditional Environments and Roles, known as the SWINTER Trials. The minister sought to examine women's performance at positions typically reserved for males, as well as how the mixed gender group performed as a whole, in order to ascertain whether operative efficiency was undermined.^[5]

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The Canadian Charter of Rights and Freedoms came into force in 1982. There have been no challenges to the equality rights guarantees of Section 15 of the Charter or commenced an action against the Canadian Armed Forces on gender discrimination charges.^[6]

The Canadian Human Rights Act is considered quasi-constitutional legislation, and applies to federal government agencies and Crown corporations including the Canadian Armed Forces.^[7] It acts to prohibit discrimination on specified grounds, such as race, sex, age, religion, and in the context of employment and publicly available services.^[8]

In Gauthier v. Canadian Armed Forces, three women brought claims before a Canadian Human Rights Tribunal alleging that the Canadian Armed Forces had refused them employment on the basis of their gender, and that this was inconsistent with the Human Rights Act. The Canadian Armed Forces conceded that their policies were discriminatory, but relied on section 15(1)(a) to argue that they should be granted an exception based on a bona fide occupational requirement. They claimed that including women in certain specialized roles could undermine “operational effectiveness” and pose too much risk.^[9]

Isabelle Gauthier, a claimant working for the reserves, was refused a request to transfer location, because her desired location had already reached its 10% female quota. Following the complaint, the Canadian Armed Forces modified their policy to allocate reserve force positions based on susceptibility to combat or operational duty rather than gender. The Tribunal ordered the Canadian Armed Forces pay to the complainant $1,000 for suffering and loss of dignity in being refused employment, and $5,481 for lost wages.^[10] Marie-Claude Gauthier, a second claimant, was qualified to be a marine engineering technician, but was not permitted entry since the trade was not open to women. She relied on sections 5a and 10 of the Canadian Human Rights Act, which forbid denying a service and depriving employment opportunities on the basis of a prohibited ground of discrimination. The tribunal ordered that the marine engineering technician program be open to women who meet the required educational level and have enrolled in the CAF.^[11]

By opening up all positions to female service members, the Canadian Armed Forces has taken a major step towards providing equal opportunity for women hoping to enter the military. Nonetheless, the number of females in the Canadian military falls well below their most recent target of 25.1% female representation.^[12] Other measures have been adopted that go beyond efforts aimed at achieving formal equality by accounting for biological differences between genders. The most often cited example of this differential treatment towards male and female soldiers has been with regards to the physical fitness evaluation for entry into the Canadian Armed Forces, where requirements are lowered substantially for female candidates.^[13] A number of proactive initiatives are also underway that are intended to bring about a greater substantive equality for women through "the elimination of discriminatory practices and attitudes, rather than granting special privileges and status".^[14]

The Canadian Armed Forces employs a system whereby they periodically reassess representation goals for women in different roles, and monitor progress towards achievement of those goals.^[15] They have recently begun an active recruiting campaign showing women in all Canadian Armed Forces positions in an effort to attract more women to combat roles.^[16] Efforts are also made through outreach activities to create awareness regarding potential career opportunities amongst women professionals and students.^[17] These, and other proactive measures are aimed at the recruitment, development, and retention of women in order to create a more diverse Canadian military.^[18]

The Defence Diversity Council is a fundamental part of the effort to achieve diversity in the Canadian Armed Forces.^[19] This body is responsible for making recommendations to the Deputy Minister and Chief of Defense Staff on policies and practices pertaining to diversity. Being a federally regulated employer, the Canadian Armed Forces are subjected to the provisions of the Employment Equity Act, and have set up four diversity advisory group for each of the four groups cited in that act as being susceptible to discriminatory practices. (including women). The Defense Woman Advisory organization's primary objectives include consulting with women in the military so that they may “provide advice and insight to the leadership on issues relevant to their membership and implementation of employment equity”.^[20] Both bodies are restricted to providing consultation and recommendations, as opposed to being direct participants in the policy and decision-making process.