While many people may assume that when my court case ended and when the Gehl clauses were added to the Indian Act via Bill S-3 that my work on sex discrimination ceased. It did not.
For the last few years I have been working with a group of women inclusive of First Nations women leaders, organizations and allies, and Canada’s senior feminist experts on Indian Act sex discrimination. This group is observing, advocating, and stressing for the need for Canada to more quickly implement Bill S-3. They are also addressing other issues: the consequences of the discrimination, resolving the lingering differences between matrilineal and patrilineal lines of descendance, and the involuntary enfranchisement of women, and thus her children, when their husbands enfranchised.
Of course I am always sure to raise issues that continue to exist since Gehl v Canada (2017) and the subsequent addition of the Gehl clauses to the Indian Act. In my goal of ensuring community people have access to information that they need, I offer an edited component of a recent document the working group created that specifically addresses situations of unknown and unstated paternity.
It is incorrect to think that all children of unknown and unstated paternity will automatically become registered status Indians like the mother. Gehl v Canada did not solve all situations of unknown and unstated paternity. This is what the court and Canada does; they narrowly define legal remedies as tightly as possible as a measure to save money.
First, as a reminder, when a status registered mother cannot, or will not, identify the father of her child, her child is treated as if they only have one status parent. If the mother has 6(1) status, she can pass on 6(2) status to her child. However, if the mother has only 6(2) status, her child is not entitled to status and is hit with the second-generation cut-off rule.
Although the requirement that a mother provide the father’s name in order to demonstrate that he is a status person was modified through the Gehl case, evidentiary difficulties continue with Indigenous Services Canada’s unknown or unstated paternity rule. Today a mother is required to show, on a balance of probabilities, that the father is/was a status Indian in order for her child to have full status. If the mother is unable to meet the evidentiary requirement the child’s status is bumped down or the child may be denied status altogether.
It is easy to reason that the difficulties of proof fall harshly on women; this is especially so for young girls who become pregnant. There are, for example, cases of complete unknown paternity where a father is not known to the mother, child, and grandchild because the child was conceived through sexual violence such as rape, gang rape, rape while unconscious due to rape drugs, sexual slavery, prostitution, or situations of multiple partners.
Further, as many know, unstated paternity situations include unreported paternity, unrecognized paternity, unacknowledged paternity, or unestablished paternity, where a mother records the father’s name on the child’s birth registration form, yet he refuses to sign it because he needs to protect his standing in the community, and/or a marriage to another woman, and/or to avoid child support payments, and/or wishes to hide that he had sex (read rape) with a minor child. Unnamed paternity also happens when a woman or minor girl child cannot name the man due to issues of sexual abuse and incest.
What is more, and disturbingly, some birth documents have been changed, or tampered with, sometimes more than once, by hospital or government officials to obscure paternity in cases of adoption, unmarried mothers, or other situations (Gehl, 2017).
And there is still more to discuss here. It is well understood that Indigenous people have a higher rate of disabilities, and further that Indigenous women and girls with disabilities are bigger targets of sexual abuse (Gehl, 2021). Some of these women and girls are unable to hear, see, or move to defend themselves and some become pregnant where the man (I opt not to call them fathers) are unable to be identified and thus named and placed on a child’s birth document.
It is in these ways that the two-parent rule continues the male dominance of the registration system, because identifying the father requires his cooperation, which he can withhold without penalty. Finally on this topic, there is no indication that the files of persons who were denied status because of unstated or unknown paternity before the Bill S-3 changes were made are being reopened and reconsidered. As people can determine Canada has more work to do in meeting their reconciliation agenda.