Gender Discrimination in Impaired Driving Law

WLF UPDATE by Kyla Lee

December 2021

Canadian impaired driving legislation has not been considered through an intersectional feminist lens. The 80mg% standard was developed in the 1950s, using research involving predominately European male subjects. At this time, it was determined that 80mg% represented universal impairment in the ability to drive. However, the cis male and cis female bodies develop a blood alcohol concentration differently, assuming all other factors such as weight and consumption are equal. To calculate a cis male’s blood alcohol level compared to a cis female’s blood alcohol level, the male blood alcohol level is multiplied by 1.17.

While a male may not reach 80mg% after two beers, a female body may. The 80mg% threshold may therefore be inappropriate when applied to women.

The situation becomes even more complex when considering people who are transitioning. The Criminal Code does not set out a formula to calculate blood alcohol level for trans or non-binary individuals. As the calculations are gender-based, they are not inclusive. Impairment science has not explored how the blood alcohol concentration of individuals at various stages of transitioning may be impacted. These calculations should therefore be reexamined in order to prevent a discriminatory legislative and scientific gap.