From the press release:

Importantly, this appeal provides the Supreme Court with the chance to interpret section 28 of the Charter for the first time. Section 28 guarantees the equal exercise of Charter rights as between men and women — and LEAF will argue that this right should extend to people of all genders.

Further, LEAF will submit that section 28 requires an intersectional analysis, which recognizes how multiple grounds of discrimination, such as race, gender, and religion, interact to create unique experiences of marginalization.

LEAF will also argue that while the notwithstanding clause can be used to override some sections of the Charter, section 28 is not one of them – meaning that the Court can strike down Bill 21 as unconstitutional because it violates section 28, despite the presence of the notwithstanding clause.

https://www.leaf.ca/news/leaf-to-tell-supreme-court-that-quebecs-religious-symbols-ban-can-be-struck-down-for-discriminating-against-women/

Their factum: https://www.leaf.ca/wp-content/uploads/2025/10/SCC-41231_Intervener-Factum_LEAF_SUITABLE-FOR-POSTING.pdf

The first 30 pages just list all the different parties / interveners!

Here is section 28 of the Charter (https://laws-lois.justice.gc.ca/eng/Const/page-12.html): "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons."

(What is referred to as the "notwithstanding clause" is s. 33(1): "Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter."

Most Charter cases about sexism relate to section 15(1): "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

So: governments can use the notwithstanding clause (s. 33(1)) to temporarily legally allow sexist discrimination under s. 15(1), but then the Charter also contains s. 28, which s. 33(1) does not say it can override.

I don't recall ever hearing about s. 28 in law school.)

Canadian case law about sexist discrimination is legally dense.

One distinction is the difference between formal equality and substantive equality.

Formal equality basically ignores lived experience. "The law, in its majestic equality, punishes the rich and poor alike for stealing bread and sleeping under bridges."

Substantive equality recognizes that people are different and are treated differently. Basically, the goal should be equality of opportunity, not equality of treatment.

Factum para. 6:

"A substantive equality standard for s. 28 also harmonizes with the historical context of the provision. Section 28’s guarantee that Charter rights and freedoms shall be exercised equally as between male and female “persons” arose from the historical fact of the denial of legal “personhood” to women and the reality that only men fully enjoyed rights and freedoms. Section 28 responds directly to that historical circumstance. Analyses under s. 28, therefore, require an understanding of that context and of ongoing systemic disadvantage."

Footnotes include Edwards v. Canada (1930), where Canadian women had to *argue all the way to England* that we legally count as persons.

Next is a discussion of intersectionality:

"intersectional analysis recognizes that grounds of discrimination – for instance, gender and religion – are co-constitutive, and that in some cases, it is only by taking each of them into account that the “actual impact of the law” on a claimant group becomes legible."

The factum then refers to places where sitting Supreme Court justices talked about the importance of intersectionality. 😄

Para. 9 is clever:

"Section 28 is tailor-made for such analysis, as its internal structure operates intersectionally by design: it is triggered when “persons” who face gender-based discrimination are differentially denied their exercise of another Charter right or freedom due to their gender. Due to this built-in link to the Charter’s other rights and freedoms, the s. 28 guarantee will often pertain when the alleged gender-based discrimination intersects with other experiences of structural marginalization. For instance, the s. 28 guarantee would be triggered when a law disproportionately denies women their freedom of religion (s. 2(a)), or their right not to be discriminated against based on religion (s. 15(1)), as compared to men."

If I remember correctly, in earlier discrimination case law, judges would refuse to find discrimination because the facts didn't fit neatly into being about either gender *or* religion (*or* whatever). The experience of intersectionality made it easy for the law to deny that a particular subset of discrimination was operating.

A fun little bit of historical research at para. 10:

"The parliamentary debates and committee reports show that in enacting s. 28, legislators were focused on s. 28’s potential to secure Charter protections for women who experience marginalization. Indeed, when the New Democratic Party introduced the provision in the spring of 1981, it stressed the importance of the guarantee “for women, and more particularly for native women.”"

House of Commons debates (at 7898, 4 March 1981), Hon Pauline Jewett (https://en.wikipedia.org/wiki/Pauline_Jewett):

“This should be an overriding statement, making it clear, in case there is any doubt in section 15 or anywhere else, that the rights apply fully, completely, and equally to women and men alike. This is important for all women but, perhaps I should say, particularly important for native women.”

Details about things like Parliamentary debates can inform the Court's interpretation of the law, although it's just one person's opinion, not the statement of the legislature as a whole. It's interesting that this section was introduced by the NDP, rather than the Liberal government.

Next, LEAF argues that s. 28's wording that "[n]otwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons" (personnes des deux sexes) "should be interpreted to include persons of all genders."

Standard "living tree" argument here: Charter rights aren't fixed as society understood things in 1982. The Charter must grow. The Same-Sex Marriage Reference (2004) is quoted: our Constitution, “by way of progressive interpretation, accommodates and addresses the realities of modern life.”

Para. 14: "to account for the full spectrum of gender identity as we know it to exist in 2025, s. 28’s gender equality protection cannot only extend to “male and female persons” – it must protect “persons of all genders”."

More legally dense material starting at para. 15 of the factum: whether s. 28 is an interpretive provision or a substantive guarantee.

Basically: what we're taught in law school are substantive rights are set out earlier in the Charter, e.g. ss. 2 and 7-15, under headings like "Fundamental Freedoms," "Legal Rights," and "Equality Rights." (That link again: https://laws-lois.justice.gc.ca/eng/Const/page-12.html)

Section 28 is later on in the Charter, under the heading "General." This could suggest it is more intended to help interpret other provisions than to be a free-standing right on its own.

So: if s. 15 is the equality right, and s. 15 can be "notwithstanding"ed (per s. 33(1)) despite being discriminatory, then does s. 28 have the nature of an independent substantive guarantee against sexist discrimination that cannot be "notwithstanding"ed?

Murky. Section 28 does have to have some application in law (other than just securing NDP buy-in in the early 80s).

LEAF's arguments include:

1. that the word "guarantee" is "strictly used in reference to substantive rights and freedoms set out in the Charter," and

2. that the Supreme Court in 2024 ruled that another "general" provision (s. 25) could provide a "protective shield," not just "interpretive guidance."

Paras. 18 - 21 of factum:

If s. 28 grounds a substantive cause of action ... LEAF submits that a party alleging a violation of s. 28 should demonstrate that (a) the impugned legislation creates a distinction, exclusion, or preference (b) based on gender – (c) that has the effect of nullifying or impairing the right to full and equal recognition or exercise of one or more rights and freedoms referred to in the Charter.

An infringement of the s. 28 guarantee could lead to the conclusion that the infringing law or provision is of no force and effect.

In the present case, the trial judge determined that it is impossible for Muslim women wearing a head covering to comply with the provisions of the Act without contravening their sincere religious beliefs and their freedom of expression.