Before we define feminist strategic litigation (FSL), let’s break down what we mean when we say feminism. For LEAF, feminism is:
- A movement which looks to end sexism and which opposes patriarchy
- Grounded in the framework of intersectionality, a term coined by Kimberlé Crenshaw
- Trans inclusive
Reflection questions: What does feminism mean to you? What are some feminist issues that are important to you?
Now, onto feminist strategic litigation:
Feminist strategic litigation is a systems-change strategy that uses the courts. It involves working together with feminist lawyers, on cases involving feminist issues, with systemic feminist goals.
In other words, FSL looks like feminists getting involved in a court case that has the potential to result in systemic change, that is, impacts for others besides just the parties in the court case. This doesn’t necessarily mean you have to go to court to do FSL (as we’ll get into in Module 3), but FSL does always revolve around a court case.
This also doesn’t mean that court cases that don’t have a systems change component aren’t important – every single court case has very real impacts for those involved – but when it comes to defining feminist strategic litigation, we’re looking for cases that will have broader feminist impacts for others beyond just the parties involved in the case.
Let’s have a look at how other gender-based violence (GBV) advocates define feminist strategic litigation:
FSL is just one systems change strategy, and is often used alongside other systems change strategies that you may be familiar with.
Test your knowledge
Take a look at the following court cases. Do you think each case involves FSL? Why or why not?
Hint! Ask yourself: Does this case involve a feminist issue? Does it have the potential to result in systemic change?
1) A province has a rule that allows people over the age of 14 to apply to change their designation of sex on their birth certificate if it does not correspond to their gender identity. They can choose male or female. Several non-binary individuals and a national 2SLGBTQI organization bring a lawsuit. They claim that the rule violates their rights under the Charter of Rights and Freedoms and that there should be a non-binary option available.
Yes, this is FSL. There is a feminist issue involved (equality for non-binary people), and the outcome would impact not just the parties in the case, but all non-binary people in the province who may want to change their sex designation on their birth certificates to a non-binary option. This example is based on a real case.
2) A woman and her husband are getting divorced. They go to court to determine spousal support, child support, and the division of their property. The husband abused and coercively controlled the woman throughout the marriage. The parties can’t agree on the husband’s income or the value of their house, but both parties ask the court to apply the usual rules for determining support and property division.
No, this isn’t FSL. There is a feminist issue involved (intimate partner violence and coercive control), but the outcome won’t impact those beyond the parties in the case because they have asked the court to apply the usual rules. If there was an attempt to change the usual rules, then this case would be FSL because changes to the rules would impact how future cases are decided.
3) A woman and her husband are getting divorced. They go to court to determine spousal support, child support, and the division of their property. The husband abused and coercively controlled the woman throughout the marriage. The woman specifically asks the court for damages for the family violence she suffered. The judge agrees, creates a new tort* of family violence, and awards the woman $150,000.
Yes, this is FSL. There is a feminist issue involved (coercive control), and the creation of the new tort of family violence not only impacts the parties in this case, but would allow others who experience family violence to seek damages using this new tort. This example is based on a real case. The decision to create a tort of family violence was appealed, and it’s currently up to the Supreme Court of Canada to decide whether to re-implement it.
Remember, the critical piece to keep in mind when determining whether a case can involve FSL is the systems change aspect. If a court case has the potential to have feminist impacts on people outside of the parties directly involved in the case, then it is FSL!