Every year, on Oct. 18 or Persons Day, I sit and wait for all the feminist lawyers to talk about the strides that Canada has made in terms of its equality and equity in treatment of women in Canada. Yet, it is with each year that I am reminded of Canada’s past that does not permit us the space and time to honour the true “she-roes” of Canada’s legal history — all the Indigenous sex workers who have come before us, before me and who continue their fight for recognition of rights as persons under and before the law.
A short history lesson is in order: If you have taken a Canadian civics course or a history course in high school or post-secondary education (or, if you went to law school), you likely learned about the seminal “Persons case.” What we do not learn about, however, is the fact that this case was borne out of the criminalization of a Métis woman, Lizzie Cyr, who was charged with prostitution offences.
The defence was that the magistrate who heard the case, a woman and one of the famous five, was not a person. Funny, how the law works — an Indigenous woman is person enough to be charged but that the white woman deciding her case felt that this power to decide an Indigenous woman’s fate should be something that she should have stronghold over. As is familiar with Canada’s history, the famous five only fought for women like them — white and able-bodied. The famous five “won” their case on the back of Indigenous sex workers while also going onto support eugenics legislation which targeted Indigenous women and men and others.
The legal community refuses to acknowledge Cyr’s history and her reality because if it had to, it would have to take a moment to recognize its own discrimination and exploitation of Indigenous women and their stories.
The legal community — nay, the feminist legal community — is only ever rallying around dead Indigenous sex workers (Cindy Gladue anyone?) but when it comes to Indigenous sex workers who are living and breathing, the Indigenous women as deserving of justice does not fit the feminist legal community narrative anymore.
I wrote the blog post that went viral and triggered national protests in the Gladue case; yet, it is largely Indigenous sex workers who are living and breathing that are ignored in the ongoing national discourse around laws and treatment in the justice system. The same professors who argue that prostitution should be abolished are the same ones who cried for Cindy, as if their tears meant anything more than their own desire to be centred and seen.
When I think about Lizzie, I often think who would be the famous five today — it would be the same white legal feminists who claim to honour and respect Indigenous women, but only if we are complacent, compliant and centring on their own feelings.
Perhaps, on Persons Day, we can honour those stories who are ignored, erased and forgotten: Indigenous sex workers, including those living and breathing.
Naomi Sayers is an Indigenous lawyer from the Garden River First Nation with her own public law practice. She is also an adjunct professor at Algoma University, teaching primarily on Indigenous rights and governance issues. She tweets under the moniker @kwetoday.
This article was originally published by Law360 Canada – providing Canadian legal news, analysis and current awareness for lawyers and legal professionals who need a real-time view on the shifting legal landscape.