Women’s Freedom of Religion Claims in Canada: Assessing the Role of Choice

Explorations in Women, Rights, and Religions - Morny Joy

Jennifer Koshan [+-]
Faculty of Law, University of Calgary
Jennifer Koshan is a Professor in the Faculty of Law at the University of Calgary. Previously, she worked for several years as a Crown prosecutor in the Northwest Territories, and as Legal Director of West Coast LEAF (Women’s Legal Education and Action Fund). Her research and teaching focuses on constitutional law, human rights, legal responses to interpersonal violence, and feminist legal theory. Jennifer regularly contributes to the legal work of LEAF and The Equality Effect, in the context of rights to address violence against women and girls in Canada, Ghana, Kenya and Malawi. Jennifer frequently collaborates with her colleague Jonnette Watson Hamilton on Charter equality rights, and more recently, on domestic violence and residential tenancies.
Jonnette Watson Hamilton [+-]
Faculty of Law, University of Calgary
Jonnette Watson Hamilton is a Professor in the Faculty of Law, University of Calgary. Her research focuses on property law and theory, equality rights, access to justice, and discourse analysis. Her recent teaching includes property law, property theory, law and literature, legislation, and research methodologies. The paper in this volume is the 10th collaborative publication with her colleague Jennifer Koshan. Her most recent publications are “Colour as a Discrete Ground of Discrimination” (2018) 7:1 Canadian Journal for Human Rights, 1-33 (co-authored with Joshua Sealy-Harrington) and “Reforming Residential Tenancy Law for Victims of Domestic Violence” (2019) 8 Annual Review of Interdisciplinary Justice Research, 245-276.


This essay explores whether religious women’s reliance on choice to ground their rights claims may undermine the success of those claims. Canadian courts have interpreted religious freedom under section 2(a) of the Charter to include a strong element of choice. However, some religious choices have not received protection under section 2(a), nor under section 15’s guarantee of equality, particularly those choices that are seen to be the cause of the claimant’s harm or that cause harm to others. Our analysis centers on a case examining a Muslim woman’s freedom to wear a niqab during citizenship ceremonies, situating this case in the broader context of decisions involving women, religious freedom, equality, and choice. These cases confirm insights from the feminist literature about religious women and choice, including the relationship between choice, agency and autonomy; individualization; and the public/private dichotomy. We conclude that a de-emphasis on choice may be strategic for religious women’s rights claims.

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Koshan, Jennifer; Watson Hamilton, Jonnette. Women’s Freedom of Religion Claims in Canada: Assessing the Role of Choice. Explorations in Women, Rights, and Religions. Equinox eBooks Publishing, United Kingdom. Jan 2020. ISBN 9781781798393. https://www.equinoxpub.com/home/view-chapter/?id=38852. Date accessed: 09 Dec 2019 doi: 10.1558/equinox.38852. Jan 2020

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