We think so. In fact, we think the government’s failure to take the needs of pregnant women into account violates our Charter right to equality.
And we are in Ottawa today preparing to present our argument to this effect at the Supreme Court of Canada tomorrow.
Tomorrow, the Court hears an appeal from British Columbia Public School Employers’ Assn. v. British Columbia Teachers’ Federation, a case concerning pregnancy and parental benefits. The central legal issue in this case is whether a government employer who provides benefits to parents must treat women who give birth and other parents equally.
At its heart, this case is about the ongoing struggle to have women’s reproductive work fully recognized, and to ensure that all government benefit schemes for parents and pregnant women are consistent with the Charter. West Coast LEAF is intervening to argue that benefits given to pregnant women and new parents that support them in taking time off for pregnancy and the arrival of a new child provide important support for women’s equality in Canadian society. Our goal is to remind the Court that women have historically borne the burden of both the physical and social aspects of reproduction, which has limited their roles within the labour and public spheres. We are here to ensure that the law moves forward in equalizing of this burden.
Under the Surrey School Board benefits plan, birth mothers are given 15 weeks of top-up benefits to cover pregnancy, birth, post-partum recovery and care-giving, and must choose how to allocate that benefit before and after the baby is born. Other parents who qualify under the plan are given 15 weeks of benefits for care-giving alone.
The Court of Appeal did not see any material distinction between pregnancy leave and parental leave (and associated benefits) because it found the purpose of both is the best interests of children and the health of parents and children. The Court concluded that there was nothing discriminatory about providing the same 15 weeks of benefits to birth mothers, birth fathers, and adoptive parents. BCTF appealed to the Supreme Court of Canada.
We believe that where an employer offers a benefit scheme for pregnant women and new parents, that scheme must recognize that women who give birth need time and resources to recover from the physiological impacts of birth. In addition, all parents, including birth mothers, need time and resources to bond with and meet the needs of their new children. To deny additional time and resources to pregnant women means that birth mothers will disproportionately bear the burden of social reproduction. Any scheme that perpetuates this historical burden on women is discriminatory.
Outside, Canadians are marking Remembrance Day with music and wreaths. Inside, we are honing our argument, imagining potential questions from the Court and reading ourselves for tomorrow’s hearing. We are here to argue that substantive equality requires that benefit schemes take the real work of reproduction and parenting, and the different experiences of pregnant women and other parents, fully into account.
We are here to ensure that the Court does not sway from a long standing principle of law and an essential pillar of women’s equality: discrimination on the basis of pregnancy is sex discrimination.