The Case for Gender-Specific Class Actions in Light of Failed Government Policies
Across sectors, government policies built on faulty evidence-based approaches (“EBA”) have disproportionately failed women, leading to preventable harm. These policies often rely on data that prioritize male standards, leaving women under-protected in areas like automotive safety, healthcare, municipal infrastructure, and employment practices. With growing recognition of these disparities, there is a rising potential for gender-specific class actions against governments and institutions that enable these failures.
Evidence-Based Policy: A Double-Edged Sword
EBA policies rely heavily on quantitative data, which is viewed as less subjective and more reliable for decision-making. However, these data sets are often male-centered, leading to systematic biases. From crash-test dummies designed for the “50th percentile man”, and even today fewer than 30% of participants in industry-sponsored early-phase clinical trials are women.[i]
This exclusion creates cascading effects. Women are 47% more likely to be seriously injured in car accidents even when adjusting for factors such as height and weight.[ii]
In short, what is touted as “objective” evidence can in practice perpetuate a male default, undermining protections for women.
Failed Protections and Legal Implications
Canada’s Charter of Rights and Freedoms guarantees equality under the law. Yet, policies that neglect gender-specific considerations may violate Section 15(1), which protects against sex-based discrimination and demand equal protection. Examples of such policy failures include:
Automotive Safety:
The reliance on male crash-test dummies has resulted in women being at significantly higher risk of injury or death in car accidents. Pregnant women face additional risks from male-centric designed seat belts, with no regulatory accommodation for after-market modifications that would increase their safety and the safety of their fetus.
Healthcare and Pharmaceuticals:
Women are underrepresented in clinical trials, resulting in medications that are less effective or unsafe for them. Male biases in animal testing is well-documented. For example, in neuroscience, 46% of animal-based testing was done on male-only animals, and only 9% of animal-based testing was done on female-only animals.
Pain sensitivity can work differently in men and women — even if the overall pain levels seem similar, the biological pathways and the influence of hormones on pain processing can differ.
Basic brain signaling can vary by sex — for example, the way brain cells control and reduce signals in the memory area (hippocampus) isn’t always the same for males and females.
The same change can affect men and women in opposite ways — if the underlying brain pathways differ, a drug, hormone shift, or environmental factor could help one sex but harm the other.
We may be missing a lot more — because research often studies only one sex, scientists don’t fully know how big or important many of these differences really are.[iii]
Municipal Infrastructure:
Women—who perform 75% of the world’s unpaid care work and are three times more likely than men to handle school drop-offs—face disproportionate burdens from snow-clearing policies that prioritize commuter traffic over residential routes, forcing many mothers in low-income, marginalized communities, along with their children who often walk to school, to navigate dangerous, uncleared sidewalks and snow piles during early-morning trips to schools and daycares located on poorly maintained side streets.
In a Swedish study, 79% of pedestrian injuries occurred during the winter months, and women made up 69% of those who had been injured in incidents that didn’t involve others. Two-thirds of these pedestrians had slipped and fallen in poor conditions, with nearly half having moderate to serious injuries. Furthermore, women’s injuries tended to be more severe than men’s in these instances.[iv]
Personal Protective Equipment (PPE):
Standardized PPE often fails to account for female anatomy, leaving women in dangerous professions under-protected.
During the COVID-19 pandemic, female frontline healthcare workers experienced higher infection rates which may have been cause by ill-fitting PPE.
General community infection rates were 63% female and 37% male. However, front-line health care workers were skewed with 83% of infections coming from females and only 17% from males.[v]
A Toronto Case Study
Workers at a health clinic close to Chinatown in Toronto observed that female patients had a particular cluster of conditions traditionally associated with chemical exposure. It turns out that the patients were all nail salon workers. While the air quality checks rarely exceeded occupational exposure limits, those limits are based on data that does not account for chronic, long-term exposure.[vi] Endocrine disrupting chemicals (“EDC”s) are particularly risky for women, as studies suggest that even low-levels of exposure can have long-term consequences.
In Canada, toxic exposure is regulated under the Chemicals Management Plan (“CMP”) and various studies are used to assess chemicals under the CMP. These studies rarely focus on female-specific responses to chemicals except as it relates to the health of the fetus and newborns, and a large percentage of lab research is conducted using male rats and mice – even in diseases that disproportionally affect women.[vii]
The Role of Class Actions
Legal frameworks can play a crucial role in addressing these systemic failures. Gender-specific class actions allow women to demand accountability and reform collectively. Cases targeting government agencies for discriminatory practices could catalyze change, forcing institutions to prioritize inclusivity in their policies.
Successful precedents exist in environmental litigation, where lawyers have successfully argued for using the precautionary principle to mitigate harm despite incomplete data. Applying this principle to public health and safety could lead to proactive measures prioritizing protection over convenience or cost.
Moving Forward
To avoid legal fallout and fulfill their constitutional duties, governments should:
- Mandate gender parity in clinical trials and automobile safety testing.
- Adjusting the CMP for gender-specific responses.
- Enforce regulations ensuring PPE is designed to fit all body types.
- Adopt the precautionary principle, acknowledging incomplete data and erring on the side of inclusivity and safety.
Women harmed by inequitable policies are increasingly likely to challenge governments in court. Proactively addressing these disparities is a legal and moral imperative and a way to avoid costly litigation. By recognizing the unique needs of women and integrating their realities into policy design, Canada can take meaningful steps toward true equality. Without action, gender-specific class actions may become necessary to hold policymakers accountable.
Reviewing gender bias in EBA is not merely about fairness but about survival, safety, and dignity for half the population. As data continues to reveal these disparities, the time for systemic reform is now.
[i] Chen et al. , “Representation of Women and Minorities in Clinical Trials for New Molecular Entities and Original Therapeutic Biologics Approved by FDA CDER from 2013 to 2015.”
[ii] Bose, D., & Segui-Gomez, M. (2011). Vulnerability of female drivers involved in motor vehicle crashes: an analysis of US population at risk. American Journal of Public Health, 101 (12), 2368–2373.
[iii] Beery AK. Inclusion of females does not increase variability in rodent research studies. Curr Opin Behav Sci. 2018;23:143-149.
[iv] Gender equal snow clearing in Karlskoga. (2014, February 18). https://www.includegender.org/gender-equality-in-practice/planning-and-urban-developm
ent/gender-equal-snow-clearing-in-karlskoga/
[v] Nguyen LH, Drew DA, Graham MS, et al. Risk of COVID-19 among front-line health-care workers and the general community: a prospective cohort study. Lancet Public Health.
[vi] Ford, Anne. (2015). Overexposed, Under-informed: Nail Salon Workers and Hazards to Their Health.
[vii] Scott, Dayna Nadine and Lewis, Sarah (2014), ‘Sex and Gender in Canada’s Management Plan’, as in Our Chemical Selves: Gender, Toxics, and Environmental Health, Vancouver.
