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SOSC 1350 - Gender and the Law Midterm Exam Review

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York University
Social Science
SOSC 1350
Julie Dowsett

Corbett Trans Masculinities and Feminities a. early trans jurisprudence and judicial anxiety about same-sex marriage i. Corbett v. Corbett (UK, 1970) A divorce case which set a legal precedent regarding the status of transsexual people in the U.K. UK Didn’t recognize mutual consent as a reason to dissolve a marriage therefore, Arthur Corbett pursued a method of dissolving his marriage. The case brought the attention that Ashley was born male and should be therefore be treated as male despite the change of sex. Medical opinion on transsexuality had no consensus view therefore, it was determined by medical opinion to treat Ashley a female or male through that. This case was used to define the sex of transsexual people, until the introduction of “Gender recognition act 2004”. Gender recognition act 2004, is an act that allows transsexuals to change their legal gender, so they can be identified as a gender different than what they are born with. Lavell Shifting Conceptions of Equality Canadian Bill of Rights -> Supreme Court’s Approach to the Bill Lavell v. A.G. Canada (1973 Mrs. Lavell married David Lavell, a non-Indian, and got a notice from Department of Indian Affairs and Northern Development indicating that due to her marriage to a non-Indian she would no longer be considered as an Indian by Law. Accordance to Indian Act. Mrs. Lavell that it was discriminatory against Indian women, because of their loss of status as an Indian. This was because Indian men can marry whomever, without losing their status as an “Indian”. Judge Grossberg (First Appeal) noted that Indian Act treated all married women equally, Indian or not and dismissed the case concluding that Section 12 1 B of the Indian act, is not inoperative in the face of Canadian Bill of Rights. The Judgment of Federal Court Appeal, Justice Thurlow rejected the reasoning of Judge Grossberg “that all women were being treated equally”. Justice Thurlow stated Indian Act in the case infringed the appellant’s rights under the Canadian Bill of Rights. The judgment of Ontario Supreme Court Judge Osler said that the reasoning of the defendant that such “disadvantages” produced by the Indian act can be compensated by other provisions which favor Indian Women. The supreme Court’s decision proved was controversial, later influencing the wording of Section 15 of the Canadian Charter of Rights and Freedoms. Normalcy/Deviancy Dichotomy Heteronormativity and Canadian Law Normalcy and Deviancy is the social construction that relates to heteronormativity. Deviancy is opposing or being opposite of heteronormativity, whereas condoning or representing yourself, typical or expected the way society wants everyone to represent themselves is following Normalcy. Heterosexuality is assumed to be normal and natural. This can be referred to T-Shirt Slogan quote: “Heterosexuality is not natural, just common.” Importance of “White, heterosexual, cisgendered, men, able-bodied) where as it is opposite of heteronormativity to be black, brown, aboriginal, queer, transgendered, women, disabled. Rape Shield Law Rape shield laws have been passed in the Canadian system during the 1980’s. Rape shield laws were made to protect victims from the emotional trauma of being questioned about their sexual history on the witness stand. Their fear of being embarrassed had discouraged victims to report any rapes. Rape shield laws seek to avoid putting attitude, behavior or sexual past. Thus, there were hopes that due to the law it would increase the reporting rates of rape victims. In Bill C-127 that came out in 1983, the rape shield provision was introduced, however it was struck down for a while and it resulted to defense lawyers bring up past sexual activity. After debates and public pressure, years later another rape shield law was introduced. Such law allowed judges to decide if a complainants past sexual history was necessary to be brought up or if it was relevant or not. This term in very significant especially now in the present since many rape victims have come forward. This law allows the victims to feel comfortable with expressing themselves to a limit where they know when to stop. Even though there is this back and forth parliament and defense lawyers’ trying to introduce anything to discredit victims or placements or rape shields, we now have a much stronger shield than ever. Cisgendered Cisgender or as some may call it cissexual, simply describes gender identity where an individual’s personal identity matches their sex that they were assigned at birth. It is suggested that this term has been based on many other related sources such as cismale for a male with a male gender identity, cisfemale for female with a female gender identity, cissexism and etc. As shown in some of the readings this term was used to differentiate cisgendered identities with transgendered identities. Some believe that this term is considered offensive and inaccurate whereas some don’t. For instance, such term individualizes gender identities. Cisgendered is a concept to illuminate the mechanics of gendered oppression however it has only made situations more confusing. Whereas in some cases, it has been suggested that such term is only being used to show the difference between ‘man acts like man’ and ‘man acts like woman’. Thus it has no intention of oppressing people that relate to the term. Definition: The Canadian justice system follows the common-law tradition that sets out certain procedure that the Crown, defence counsel and judges must follow. Under common-law system the judges play an important role. The role of the judge is “to discern the legally relevant facts of the case—to find the truth about the matter brought before the court” (Comack, 27). During the trial all the members of the bench must be impartial and neutral therefore they should avoid being biased or prejudiced instead “they are obliged to treat all who come before them in an unbiased fashion, fairly and dispassionately” (Comack, 27). The doctrine of the separation of powers which states that the legislature (which makes the laws) is separated from the judiciary (which administers the laws) reflects the fact that the judges are impartial in their deliberations. Furthermore, the doctrine of stare decisis (stand by decided matters) allows the judges to follow precedent. Common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority. These principles are said to promote and ensure that law is predictable, consistent and certain (Comack, 28). Significance: The ruling of the Supreme Court of Canada in Daviault case in 1994 significantly changed the traditional approach to intoxication because the ruling gave an accused charged with sexual assault to use the defence of intoxication where extreme drunkenness can result to automatism or insanity (Comack, 27). Therefore, under common law tradition judges can use Daviault case in future cases involving intoxication of the defendant who had either committed a specific intent and general intent offences. In this way judges can make sure that the law is predictable, consistent and certain. Mythical norm Definition: Barbara Perry defines mythical norm as “white thin, male, young, heterosexual, Christian and financially secure. It is with this mythical norm that the trappings of power reside within this society” (57). The term “mythical norm” describes the idealized characteristics of society that hold power and bring about oppression. The mythical norm within a society greatly impacts how oppression is viewed and therefore how oppression is communicated rhetorically. This concept was used throughout the start of the semester regarding social construction (Lecture, September 25
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