Can Canada be held accountable for their GBA+ commitments?
This blog post was written by Kanisha Acharya-Patel, WHEN’s Law Reform Specialist, and the views expressed are not intended as legal advice. WHEN advocates for all women, trans, cis, and Assigned Female at Birth (AFAB) individuals. For the purposes of this blog post, the term ‘women’ is used to describe those with ovarian reproductive systems and/or those who identify as women, recognizing that both sex and gender affect one’s vulnerability to environmental harm.
Need a refresher on Gender-based Analysis Plus (GBA+)?
Please check out our Explainer on GBA+! In short, GBA+ is an essential analytical tool for developing effective and equitable policies, programs and legislation for diverse populations by identifying direct or indirect impacts of federal government initiatives on different sub-populations and subsequently taking steps to mitigate the negative impacts. The ‘plus’ in GBA+ acknowledges that the analysis incorporates a range of intersecting identity factors beyond sex and gender (namely ethnicity, race, religion, age, disability, geography, culture, income, sexual orientation, education, and language) which form and uphold overlapping and interdependent systems of privilege, discrimination and inequality [1]. The government of Canada is currently considering rebranding GBA+ as Gender and Diversity Analysis to reinforce the intersectional purpose of the tool [2,3]. In the context of toxic substance management under the Canadian Environmental Protection Act (the primary piece of federal legislation for protecting environmental and human health, including through the prevention and management of risks posed by toxic substance exposures), GBA+ allows us to identify and address inequities faced by women and other vulnerable populations due to their intersecting identity factors.
What are Canada’s GBA+ commitments?
In 1981, the federal government of Canada signed onto the United Nations (“UN”) Convention on the Elimination of All Forms of Discrimination Against Women. At the 4th UN World Conference on Women (1995), Canada signed the Beijing Declaration and Platform for Action and committed to conducting GBA on all future legislation, policies, and programs. GBA has since been expanded to GBA+ to require the consideration of diverse and intersecting identity factors (i.e. not just sex and gender) [4]. Canada’s commitments are outlined in its Policy on GBA+, which makes it clear that GBA+ must be integrated throughout the development of a federal initiative, and during the implementation and monitoring phase, to ensure GBA+ outcomes are achieved. For more information and a timeline on Canada’s GBA+ commitments, please see the following:
Who is responsible?
Women and Gender Equality Canada (federal department) is the “centre for expertise for advancing gender equality and supporting the application of GBA+ across government decision-making processes” [5]. That being said, all federal departments share the responsibility of implementing GBA+ and GBA+ must be conducted for all federal government initiatives; even if there is no obvious connection between the initiative and identity factors such as sex, gender or race, it is important to conduct GBA+ regardless because there may be unexpected impacts on vulnerable populations [6]. It’s important to note that these commitments do not extend to the provincial or territorial governments, which means that many decisions impacting Canadians are not required to be analyzed through the GBA+ lens.
Are the commitments legally binding?
Many of Canada’s GBA+ commitments are stated in policy documents, which are not legally binding and therefore not enforceable [7]. Canada’s international GBA+ commitments (i.e. the commitments made by signing onto the UN Convention on the Elimination of All Forms of Discrimination Against Women) are only enforceable if they are codified in a domestic legal instrument, such as a federal law. For example, GBA+ is a required consideration for decision-making under key federal legislation, including the Canadian Gender Budgeting Act, the Impact Assessment Act, the Immigration and Refugee Protection Act, and the Accessible Canada Act, but these obligations fall outside the scope of this blog post. GBA+ is not currently a required consideration for decision-making under the Canadian Environmental Protection Act, which means that an intersectional approach is not legally required when the federal government is assessing and managing the risks associated with toxic substances.
There are also a few legally binding GBA+ requirements that the federal government must comply with when developing legislation, policies and programs. Specifically, federal departments and agencies are required to integrate GBA+ into all budget proposals, regulations, Treasury Board (TB) submissions and Memoranda to Cabinet (MC). These documents are used to seek approval from various government oversight bodies when developing and implementing proposed laws, policies and programs, and are tangible documents that can prove whether the government is following through on their GBA+ commitments.
Can Canada be held accountable for the legally binding commitments?
On paper, all federal departments are required to “apply GBA+ in the decisions [they] make and consider public policies through an intersectional lens in order to address systemic inequities” [8]. However, in practice, government decision-making is often shielded from public scrutiny and there are limited avenues for the public to attempt to hold Canada accountable. Even where the requirement to conduct GBA+ is stated in a federal law and thus legally binding, enforcement by members of the public is difficult because of the many obstacles inherent in our legal processes, such as the cost of hiring legal representation, and the fact that decision-makers are granted a level of discretion in their decision-making. Decision-makers have been criticized for treating GBA+ as an afterthought or “box-checking exercise” [9], but checking the box is sufficient for the decision-maker to technically meet their legal obligations. Performative GBA+ does not accomplish its purpose in “ensuring that none of the diverse people encountering Canadian federal policies and programs are unintentionally harmed by them or excluded from them” [10], but is often sufficient to protect decision-makers from accountability.
Members of the public are also limited in their ability to hold decision-makers accountable because of the difficulties associated with accessing information (ex. documents that show how GBA+ was conducted). Under the Access to Information Act and the Privacy Act, you have the legal right to obtain information that is under the control of a government institution. The purpose of these acts is to make government more open and transparent, and make sure citizens have the information required to participate meaningfully in the democratic process and that decision-makers remain accountable to the public [11]. However, accessing government documents through these acts is a long and tedious process, and many documents are inaccessible due to a concept called Cabinet Confidentiality.
The idea behind Cabinet Confidentiality is that all Cabinet Ministers (i.e. people appointed by the Prime Minister to manage a specific government department) are collectively responsible for actions taken by the Cabinet (i.e. political forum in which ministers meet to establish consensus on government action) and must publicly support all Cabinet decisions. To reach final decisions, Ministers must be able to express their views freely and know that these discussions will be protected, and allowing these views and opinions to be disclosed publicly would result in the erosion of the collective responsibility of ministers (i.e. would disrupt the image of a united front) [12]. Documents protected by Cabinet Confidentiality are called Cabinet Confidences. MCs and TB submissions are two examples of Cabinet Confidences [13], meaning that the public does not have the right to obtain access to them and therefore can generally not use them to assess the government’s compliance with its GBA+ commitments. There are ways for the government to be more transparent about their application of GBA+ while respecting Cabinet Confidentiality, such as publishing GBA+ analysis after the decision on the proposed initiative has been made [14], and we encourage the federal government to explore these options.