Conceptual clarity around the use of words and terms is essential to law. That’s what makes the research of Professor Debra Haak, PhD’19, vitally important. 

Haak is the recipient of grants totalling more than $50,000 from the Social Science and Humanities Research Council, the Canadian Bar Association Law for the Future Fund and the Queen’s University Faculty Association Fund for Scholarly Research to fund the first stage of a planned multi-phase research project that aims to provide conceptual clarity around human rights protections based on sex and those based on gender identity. This will involve research into how and why the word sex is used in human rights laws in Canada, and whether and how sex, gender, and gender identity are conceptually distinct.

Canadian laws prohibit discrimination on the grounds of “sex,” “gender identity,” and “gender expression.” However, as Haak observes, we’re seeing shifts in how these words are defined and used in public discourse and by educators, adjudicators, lawyers, and people within the provincial and federal governments. As things stand, there’s no scholarly consensus around what the words “sex” and “gender” now mean. Definitions currently used by the federal level of government are variable and inconsistent. Haak is working to change that. A self-described “problem solver,” she’s a pragmatist whose research is motivated by a concern over how law and policy in Canada contend with interests, rights, and values in tension. 

“I study law in the context of the public or social problems that the law aims to redress. That is why I think it’s really important that we have a clear understanding of why the word ‘sex’ and the term ‘gender identity’ were included in human rights laws in Canada,” she says.

“I foresee potential conflicts between rights asserted on the basis of ‘sex’ and those asserted on the basis of ‘gender identity.’ To date, areas of potential tension between rights asserted on the ground of ‘sex’ and those asserted on the ground of ‘gender identity’ include women’s shelters, women’s sport, and women’s prisons. Having some clarity around conceptual distinctions between those prohibited grounds of discrimination will provide courts and legislators who ultimately have to deal with any tensions that do arise a more nuanced basis for doing so.” 

The research project Haak is undertaking is nothing if not ambitious. She and two student researchers are busy identifying everywhere that the word “sex” appears in Canadian human rights legislation. They’re also attempting to identify why it was included there, the range of interests its inclusion aimed to promote, how legal decision-makers – governments, the courts, and tribunals – have defined and interpreted the word “sex,” and if and how current definition(s) align with the interests the word sex was originally included in human rights legislation to promote.

This initial phase of Haak’s investigation is expected to take about two years to complete. If all goes as planned, she will present preliminary findings at three conferences this year in the U.K., the U.S., and Canada. The feedback she receives at these conferences and elsewhere will help to inform and shape her research going forward.  Ultimately, she hopes that her findings will provide those in legal and educational communities with a foundation for engaging in “difficult conversations,” as Haak describes them. 

What are these difficult conversations? “We seem to be moving into a time when people are increasingly unable to talk with one another about things they disagree about,” she says. “Instead, they’re choosing sides. I really hope that by engaging in what might be described as ‘descriptive’ work, I can open up some capacity to have conversations across some of these divides, including around what we mean when we talk about women’s rights and whether and how women’s rights relate to sex, gender, and gender identity.”

By Ken Cuthbertson, Law’83