The Hub is pleased to present a weekly column from author and historian Antony Anderson on the week that was in Canadian history.

April 1928: The Supreme Court of Canada declares that women are not persons 

She had heard this kind of thing her entire life: a chorus of pampered male voices laying out the limits of what she and every other woman in Canada would be allowed. Nellie McClung, suffragette, journalist, reformer (i.e. disturber par excellence), had joined four other potential persons to petition the Supreme Court to rule on whether women could, in 1928, be appointed to the Senate.

Section 24 of the British North America Act, crafted in 1867, stated that only “properly qualified persons” were fit for such splendour. It was assumed that “qualified persons” meant just the males of the species. After due deliberation, the justices of the Supreme Court—all men—agreed that Canada should abide by the assumptions of 1867 and continue to keep women out of the Red Chamber. That April 24 decision was infuriating but nothing new to McClung. She had spent decades howling at things that almost everyone else took for granted. 

Her father had immigrated from Ireland, her mother from Scotland, staunch Methodists, in search of something more. Their separate paths joined in Ontario, where McClung was born in 1873 on the edge of the Bruce Peninsula near the town of Chatsworth. They found themselves, as historian Charlotte Gray writes, “scraping a threadbare existence from…cramped and stony fields”. Their optimism trumping experience, they headed west in 1880, to Manitoba, raising six children on a homestead southwest of Portage la Prairie. 

This was a cloistered, hand-made world grounded in self-reliance and faith; a physically hard life that did not harden McClung’s heart for she was blessed with empathy, a delight in life, endless curiosity, and surreal amounts of energy. She had no intention of fulfilling anyone’s expectations except her own and those of her Maker, as she was able to conceive them. In a childhood without movies, radio, phonographs, or telephones, she lost herself in the power of the word, experiencing an almost born-again rapture reading Charles Dickens:

I knew in that radiance what a writer can be at his best, an interpreter, a revealer of secrets, a heavenly surgeon, a sculptor who can bring an angel out of the stone. And I wanted to write; to do for the people around me what Dickens had done for his people. I wanted to be a voice for the voiceless as he had been a defender of the weak, a flaming fire that would consume the dross that encrusts human souls, a spring of sweet water beating up through all this bitter world to refresh and our souls that were ready to faint.

Heady stuff but this would all come to pass; indeed, she made it so.

To her mother’s consternation, McClung showed no interest in the early marriage trap and became a teacher, still something of a child herself, at age 16. In 1890, she was dispatched to the town of Hazel, a whole new world, to wrangle eight grades in a single-room schoolhouse. Deeply devout, the child teacher attended Sunday Bible classes for young ladies, taught by the minister’s wife. Young Nellie seems to have undergone yet another rapture over the, as she gushed later over a, “strikingly handsome…beautifully dressed” creature from another realm. “When looking into her eyes I saw the browns and greens and gold of the moss in the meadow brook at home when the sunshine fell into its clear stream.” Nellie even told a friend that the minister’s wife “is the only woman I have ever seen whom I would like to have for a mother-in-law.” And once again, Nellie would make it so.

The minister’s wife, Annie McClung, was a dose of the future, dazzling Nellie with her “fearless, and even radical, mind,” by the fact that she believed in women having the vote, by daring to circulate a petition supporting this move, and by raising her sons to do their share of the banal chores at home just like their sister. In 1892, Nellie was posted to the nearby town of Manitou, and as fate and perhaps some backstage manoeuvring would have it, found herself boarding with the divine Mrs. McClung and family. The eldest son, Wesley, soft-spoken, bright, a pharmacist by trade, was a man ahead of his time and wanted a wife as remarkable as his mother. Nellie realised this: “I would not need to lay side my ambition if I married him. He would not want me to devote my whole life to him, he often said so.” They had five children and would be married for almost 55 years of joy and sorrow, sickness and health, better and worse, parted only by death. 

In the midst of raising her family, McClung made time to remake the world as she could. Her faith was steeped in Methodism’s “Social Gospel” which set out to undo the evils of the industrial marketplace right now rather than wait for justice in the afterlife. McClung flung herself into a multitude of organisations, the most prominent being the Woman’s Christian Temperance Union which wanted to ban alcohol, the devil trigger of spousal and child abuse and endless other sins.

In 1907, she ventured as a first-time delegate to address a WCTU convention. It seems she surprised even herself by how riveting she was. “I saw faces brighten, eyes glisten, and felt the atmosphere crackle with a new power. I saw what could be done with words, for I had the vision of a new world as I talked.”

A year later, she would see her first novel published, Sowing Seeds in Danny about the trials and comedies of a young woman growing up on the prairies. Once again, her mother-in-law played a decisive role, interrupting McClung in the middle of doing the weekly washing to insist she enter a short story contest for a major American magazine. McClung began to list all the chores and duties that demanded her attention. The incredible Annie McClung looked at her daughter-in-law and said, “Trifles—all of them. If you wait until you are ready to write, you will never write. Don’t you know that conditions are never perfect? Life conspires to keep a woman tangled in trifles.” Nellie was ordered out of the kitchen.

By that evening, she had finished a draft. She eventually received a glowing rejection letter and liking what she’d done, turned her initial idea into a novel, which became a best-seller. She never stopped writing; she produced 17 books in all, including her autobiography, novels, and collections of opinion pieces infused with her charm and wit. She was never a grouchy activist. Naturally, that wasn’t enough for her. There was still too much sin in the world to retreat into mere worldly success.  

In 1911, she and the family moved to Winnipeg where she continued her campaigns for prohibition and the vote in print and on public platforms. In 1916, Manitoba became the first province to allow women the privilege of casting a ballot. This breakthrough, however welcome, was just one battle in a vast campaign, as McClung wrote, “Women are enfranchised but not emancipated.” She pushed her beloved Methodist Church to ordain women and allow their appointment to the church’s governing bodies.

She was appalled by the immoral work conditions inflicted upon the working poor. One of her friends happened to know the premier, Sir Rodmond Roblin, and they beguiled him—they were young and attractive, he was elderly and patronising—into visiting a sweatshop. McClung took note of his expensive beaver coat, the chauffeured car, “his plump hands resting on a gold-headed cane” and listened on the drive as he mansplained at length about the sins of wanton female idleness and opined that factory work would keep these women off the street and allow some them some fun money.

Then McClung and her friend took him down dark steps into a basement underworld without air, pounding with noise, a filthy floor sticky with garbage, women hunched over sewing machines, lining up for one toilet with blocked plumbing. McClung quite literally pushed the delicate premier along from behind to keep him moving through the squalor. “For God’s sake,” he begged, “Let me out of here. I’m choking. I never knew such hell holes existed.” No kidding. “I still can’t see why two women like you should ferret out such utterly disgusting things.” But that was when McClung was at her best, making life squeamish for the complacent.

Even Nellie McClung, of course, had her limitations. She advocated awful bits of eugenic thinking. She was not alone in this. 

In 1921, now living in Alberta, she ran as a Liberal MLA in Edmonton, won, and acted like an independent, supporting her opponents when she felt they were doing something sensible. She was defeated in 1926 because she had pushed so hard for prohibition. 

Then there was the Person’s Case, spearheaded by Canada’s and indeed the British Empire’s first female judge, Emily Murphy, joined by three other stellar figures, Henrietta Muir Edwards, Louise McKinney (an Alberta MLA, the first woman elected to a legislature in the British Empire), and Irene Parlby (Alberta MLA). When the Supreme Court of Canada, in all its wisdom, preferred to think it was still 1867, the Famous Five, as they came to be called, used their last resort and appealed, as was their right as British subjects, to Britain’s Judicial Committee of the Privy Council. Those men across the ocean overruled Canada’s Supreme Court, which wasn’t so supreme, on October 18, 1929, and declared that women could and should be deemed “qualified persons” and thus eligible to be admitted to the Senate.

It was a landmark triumph, but again for McClung, just another overdue marker on the long road to social justice. In the mid-1930s through the Second World War, by then living in Victoria, B.C., she railed against anti-Asian racism, an especially brave stance after Japan had bombed Pearl Harbor, urging her fellow Canadians not to hate their fellow Canadians because of the colour of their skin, “We must not sink into Hitler’s ways of persecution. We must not punish innocent people.” 

Nellie McClung amplified existing currents and spread necessary ideas further than they would have reached with more punch than most of her contemporaries could manage. Only students of Canadian literature still read her novels but that doesn’t matter. She acknowledged that “If some of my stories are…sermons in disguise, my earnest hope is that the disguise did not obscure the sermon.” They did not. The sermons worked their wonders. 

The setting of Umberto Eco’s novel The Name of the Rose is a Benedictine abbey, somewhere in northern Italy. At the centre of the abbey is a scriptorium with a vast library attached to it. The library is in the form of a maze, through which only the librarian and his assistant know the way. The labyrinthine library is in a huge fortified tower, which like a castle frightens and repels all who would enter it. It is an impressive work of engineering, by means of which “knowledge is used to conceal rather than to enlighten.” That’s how the main character, the English monk William of Baskerville, described it. The plot is a murder mystery hinging on a banned book: a lost text by Aristotle, the manuscript of which has been laced with poison.

Though the book is set in the early 14^th century, it is a postmodern allegory. Every word, book, and text, points only to another word, book, or text—not to reality. Each room of the labyrinth seems to open onto another room without end. Despite connections drawn to apocalyptic prophecies by frightened monks, there is no ultimate pattern to the string of mysterious deaths, and the greatest logician of his time William of Baskerville finds no certainty or meaning in what he observes. If the ultra-rational William is the hero, the villain is the dogmatic, secretive, and censorious librarian Jorge of Burgos who sets the library on fire rather than expose its holdings to the world and kills himself by eating the poisoned book.

Of course, as far as the real Middle Ages are concerned, The Name of the Rose is a caricature. Mediaeval intellectuals certainly loved symbolism and allegory, but there was also an effort to reach the hard reality beneath the symbol. In the 9^th century, during what is still commonly called a “dark age,” John Scottus Eriugena advised his readers to look beneath “the surface of visible things” and “to give a rational account of what we perceive by bodily sense.”

This mode of thought would culminate the efforts of Thomas Aquinas to survey the huge edifice of Christian theology and dogma in the light of pagan, Jewish, and Muslim philosophy. The works of Aristotle had been reintroduced to the West in a Latin translation from Arabic versions, and commentaries by Muslim scholars came with them. These were extremely influential on Thomas, as were a welter of scholars from Cicero to Maimonides, all of whom he references frequently. But Thomas’s Summa Theologiae is not an incoherent pastiche; it’s a model of clear thinking and concise writing on practically every topic imaginable.

Judith Butler’s outsized influence

The real age of obscurity and confusion is our own, and you will find no better proof of this than the works of Judith Butler. She is one of the most influential academics in the world, though very few people have read and understood her work. Believe it or not, I had the pleasure of reading a fair amount of it when I took two courses in sexual diversity studies at the University of Toronto in the early 2000s. It was immediately obvious that Butler’s followers and critics tend to gravitate more towards what they think Butler says, rather than her real meaning. The reason for this is that all of Butler’s ideas, however trivial or obvious, are expressed in a comically verbose and obscure manner. She will never use one word if ten will suffice, and she has a penchant for Graeco-Latin abstract nouns. “Facticity,” “liberalization,” “hegemony,” “multiplicitous,” and “heteronormativity”—Butler’s writing is a compost heap of such jargon, and the sentences are often far too long. Consider this one:

The move from a structuralist account in which capital is understood to structure social relations in relatively homologous ways to a view of hegemony in which power relations are subject to repetition, convergence, and rearticulation brought the question of temporality into the thinking of structure, and marked a shift from a form of Althusserian theory that takes structural totalities as theoretical objects to one in which the insights into the contingent possibilities of structure inaugurate a renewed conception of hegemony as bound up with the contingent sites and strategies of the rearticulation of power.

That is from “Further Reflections on Conversations of Our Time,” an academic article published by Butler in 1997. It won first prize in the Philosophy and Literature Bad Writing Contest in 1999, and there are a great many other sentences like it in the Butlerian corpus. But, though her writing is generally bad, it is not always unintelligible. Amidst all the pompous obscurity, acolytes and critics will either thank or blame Butler for the mysterious transmutation of sex into gender.

The idea goes like this. In the 1940s, the feminist existentialist Simone de Beauvoir distinguished between “female” and “woman.” “Woman” was what we might call a social construct attached to the category of female. Feminist writers of the 1980s destabilised the idea of “woman,” and the concept of womanhood became for them increasingly uncertain.

Butler belongs to this trend, but she went further. Her book Gender Trouble, published in 1990 undermines “female” as a stable and fixed category. Our species’ division into two distinct sexes is for Butler a kind of fiction which exaggerates small differences among people. Biological sex is real, she seems to acknowledge, but it makes no difference greater than minor variations of the human phenotype like skin colour. The body is accordingly a blank slate, upon which man- or womanhood is impressed by social norms. Hence, Butler’s theory of “gender performativity”—the idea that we are men or women because we act as men or women ought to do according to the requirements of our culture, and there is no essential manness or womanness beneath the performance.

Simone de Beauvoir had a dim view of “femaleness,” but she took seriously the idea that biology circumscribed and determined womanhood. In contrast, Butler does not. Her main goal is to dismantle the idea that mankind is by nature divided into only two sexes, and therefore that male and female sexual relations are normal. As contemporary jargon has it, Butler wants to undermine “heteronormativity.” This is the force of Butler’s 2004 book Undoing Gender. Butler followed Michel Foucault into the labyrinth of postmodernism, and discovered at its centre that “power dissimulates as ontology.” In other words, our perception of male and female only seems real because of the power of the authorities who impose them upon us.

Accordingly, all norms of gender and sex must be dismantled—even, as it seems, the prohibition against incest, to which Butler devotes an entire chapter of Undoing Gender. She even raises the prospect of removing reproduction from heterosexual relationships by means of technology and warns feminists against resisting it. To do so, she says, would be to “risk naturalizing heterosexual reproduction.” “The doctrine of sexual difference in this case.” she continues, “comes to be in tension with antihomophobic struggles as well as with the intersex movement and the transgender movement’s interest in securing rights to technologies that facilitate sex reassignment.”

I for one do not know how we could tell if anything Butler says is right. If the “truth-as-power” doctrine is, er, true, then I cannot think of a good reason to take Butler at her word. This, however, is not the main problem with Butler’s work.

Undoing gender theory

The problem is that the near irrelevance of biological sex and the theory of performative gender as either male or female militate against the main assumption of transgenderism. If, as it is said, you can have a “gender identity” that does not accord with your bodily sexual characteristics, then Butler’s most important ideas cannot be true. And if you must change your sexual characteristics to align with those correlated with the other gender, then you are dangerously close to affirming, rather than dismantling, “heteronormativity.” Accordingly, Butler admits that her former work is now “questionable in several ways, especially in light of trans and materialist criticisms.” This is undoubtedly why Butler has once again revisited the topic of gender in her new book Who’s Afraid of Gender, wherein she tries to assimilate her older ideas to present orthodoxy.

The task is fundamentally hopeless. And so it is no surprise that Butler is now in grave doubt. In 2004, gender was “a kind of a doing, an incessant activity performed.” Now, however, Butler’s subject is “gender—whatever it is”; the word itself often appears in quotation marks; there are “myriad, continuing debates” about it, and there is “no one approach to define, or understand” it. Accordingly, “Gender has to remain relatively wild in relation to all those who claim to possess its correct definition.”

But she also says that gender is “a felt sense of the body, in its surfaces and depths, a lived sense of being a body in the world in this way,” which sounds somewhat like a definition, albeit a bad one. What an embarrassing retreat! But if Butler cannot defend her former claims, and cannot really reconcile herself to contemporary doctrine, she can at least assume its jargon. She has obligingly adopted third-person plural pronouns, she ostentatiously refers to “pregnant people” and “sex assigned at birth,” and she boldly condemns all the right enemies of gender.

And its enemies are numerous and powerful. Viktor Orbán, Georgia Meloni, Donald Trump, Ron DeSantis, and Vladimir Putin hover like evil spirits over Butler. So does the arch-fiend J.K. Rowling, who is anathematised over the course of an entire chapter. And, like a postmodern Martin Luther, Butler really has it in for the Papacy and “Aristotelian-Thomistic anthropology.” I suppose this makes sense, from Butler’s perspective, since among all her enemies, Pope Francis has condemned gender ideology in the clearest terms, most recently as one of the “ugliest dangers” of our time, undermining the natural complementarity of men and women. The Vatican Doctrinal Office has, once again, also condemned “gender theory.” But Butler is wrong to assert that the pope has likened it to the destruction caused by nuclear weapons. And her garbled end notes do not prove it. For more on this, see the damning analysis by philosophy professor Alex Byrne here.

But what do all those malign figures have in common? Fascism, says Butler. They are all fascists who use the “phantasm” of gender to stir up fear in order to distract from real problems like “war,” “systemic racism,” and “devastations of capitalism.” The fascists wish to restore “a patriarchal dream-order where a father is a father; a sexed identity never changes; women, conceived as ‘born female at birth’ resume their natural and ‘moral’ positions within the household; and white people hold uncontested racial supremacy.”

Butler’s enemies are also racists, apparently, and so she also provides a bizarre digression into what she believes to be a misguided opposition to Critical Race Theory. Anyway, Butler makes no effort to understand her antagonists’ opinions and motivations and avoids addressing any of their often very different arguments. But luckily for Butler, she doesn’t need to, because her opponents are simply too stupid and they don’t read. “It is nearly impossible,” she says, “to bridge this epistemic divide with good arguments, because of the fear that reading will introduce confusion into the reader’s mind or bring her into direct contact with the devil.”

Consider the reaction to British feminist Kathleen Stock whom Butler hates perhaps even more than the Papacy. Stock is wrong—not because of any errors of reasoning, but because “she does not seem to understand the toxicity or cruelty that she herself brings to the table” when insisting that “the designation of ‘woman’ should be tied to the determination of biological femaleness.” Butler continues:

Imagine if you were Jewish and someone tells you that you are not. Imagine if you are lesbian and someone laughs in your face and says you are confused since you are really heterosexual. Imagine if you are Black [sic] and someone tells you that you are white, or that you are not racialized in this ostensibly post-racial world. Or imagine you are Palestinian and someone tells you that Palestinians do not exist (which people do). Who are these people who think they have the right to tell you what you are and what you are not, and who dismiss your own definition of who you are, who tell you that self-determination is not a right that you are allowed to exercise, who would subject you to medical and psychiatric review, or mandatory surgical intervention, before they are willing to recognize you in the name and sex you have given yourself, the ones to which you have arrived?

The rhetor has clearly overpowered the philosopher. What would be the consequences of such imaginings, and who are “those people” to whom Butler refers? We never find out. Butler seems to imply that nothing could be worse than failing to affirm a person’s identity or his or her claim of belonging to a particular group. If this is indeed what Butler means, it can only signify his or her disconnection from actual pain and suffering. As she says of J. K. Rowling, “living in the repetitive temporality of trauma does not always give us an adequate account of social reality.” In other words, Rowling (who was abused by her former husband), simply cannot be trusted because she was abused.

But that phrase “your own definition of who you are” is almost equally troubling. It places Butler in the same category as the Jesuits of Paraguay and the Pilgrim Fathers imagining a fresh start in a new world of personal and social perfection. Butler is also the almost bankrupt heir to the Marquis de Condorcet for whom “the perfectibility of man is absolutely infinite.” And in the world of anthropology, she is the Trofim Lysenko: the Soviet agronomist who believed that one species of plant could be transformed into another under the right conditions.

Such utopian visions may be attractive to some people, but they always lead to disappointment, disaster, and cruelty. The future of gender theory does not appear to be bright, not because it is widely feared, as the title of Butler’s book implies, but because its precepts are false and many of its effects are harmful. In many parts of the West, it seems to be in retreat now, as puberty blockers and surgeries are increasingly restricted. A Pew Research poll from 2022 showed that the number of people who affirm two and only two human sexes and only two genders has been growing since 2017. Perhaps the tide is turning. 

Accepting what we are and what we are not, as Butler might say, must mean pulling down the endless maze of symbols and metaphors that obscure reality. This is not what Butler has done, though. Like the secretive, dogmatic librarian Jorge of Burgos, she has retreated deeper into the gender labyrinth. But the protective fortress of jargon and obfuscatory prose, which Butler erected, is on fire, and Butler is the incendiary. We can imagine her within, consuming her own poisoned texts, as the structure collapses around her. Let us hope that, when the rubble is cleared away, we may see the truth more clearly.