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Intersectional Discrimination and Substantive Equality: a Comparative and Theoretical Perspective

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Intersectional Discrimination and Substantive Equality: a Comparative and Theoretical Perspective 73 Intersectional Discrimination and Substantive Equality: A Comparative and Theoretical Perspective Ben Smith1 Introduction - 2 “[O]ur struggle for liberation has significance only if it takes place within a feminist move ment that has as its fundamental goal the liberation of all people.” 3 - Intersectionality has been described as “the most important theoretical contribution that women’s studies (…) has made so far”, and is, in brief, an approach to identity that recognis es that different identity categories can intersect and co-exist in the same individual in a way which creates a qualitatively different experience when compared to any of the individual characteristicsGender reaches involved. into Intersectionality disability; disability shows wraps us how: around class; class strains against abuse; abuse snarls into sexual orientation; sexual orientation folds on top of race (…) everything finally piling into a single human body.4 Kimberlé Crenshaw, who originated the term, focused her attention on the position of black- women in US society. She noted that black women were failed by anti-racist campaigns that- focused on the experiences and needs of black men, and feminist campaigns led by and fo cused on the experiences of white women. As a result, discrimination law using5 a “single-ax is” model of identity failed black women, as their experiences of oppression were rendered invisible by the dominant narrative within the categories “woman” and “black”. Much of the 1 Ben Smith is a graduate of Wadham College, Oxford (BA Jurisprudence) and University College London (LLM). He is currently a Legal Research Intern at the Equal Rights Trust. The views expressed in this 2 article remainAin’t thoseI a Woman: of the Blackauthor Women and cannot and Feminism be taken toPluto represent Press those of the Trust. 3 hooks, b., Signs:, Journal , of1982, Women p. 13. in Culture and Society, Vol. See McCall, L., “The complexity of intersectionality”, 4 30, 2005,Exile p. 1771. and Pride: Disability, Queerness and Liberation, , 5 Clare, E., South End Press 1999. - University of Chicago Legal Forum See Crenshaw, K., “Demarginalizing the intersection of race and sex: a black feminist critique of an ti-discrimination doctrine, feminist theory, and anti-racist policies”, , Vol. 4, 1989. The Equal Rights Review, Vol. Sixteen (2016) 74 - all academic discussion continues this focus on the intersection of race and gender, but 6the or pothe tential of intersectionality allows it to go further, showing how identities interact to create complex identities. Writers have highlighted the intersections of disability7 with race intersectional experiences within the category sexual orientation, and it is this generality which is intersectionality’s greatest strength as a tool for reforming discrimination law. - - However, though8 intersectionality is “fast becoming common parlance among policy-mak- ing circles”, the law, in most cases, still clings resolutely to “single-axis” models of dis crimination law and therefore fails to address9 the lived experiences of those who expe rience discrimination on multiple grounds. The “single-axis” approach is the product of several aspects of the historical development10 of discrimination law. In large part it is due- to the origins of the “traditional” protected grounds in political liberation struggles that have been focused on a single characteristic, such as feminism, queer liberation, and an ti-racist movements. The limitations11 of these movements in responding to intra-category diversity and advocating for more than the needs of a relatively privileged minority within a category are well documented. The adoption of these liberation struggles by law in the- form of discrimination law serves only to exacerbate the tendency of these movements12 to formulate identity as totemic, homogenous categories that render invisible minority expe riences. Another element is arguably the influence of liberalism on equality law, with its approach to the legal subject as an atomistic, abstract individual who can be stripped of “extraneous” identity categories to13 point to some common core. This lineage is seen in the centrality of comparators and comparison to discrimination law, as well as the adversarial, individualised model of litigation. 6 An Intersectional approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims Ontario Human Rights Commission, , 2001, p. 2. ” Beyond the Queer Alphabet 7 Bilge, S., “Developing Intersectional Solidarities: A Plea for Queer Intersectionality in Smith, M. and Jafer, F. (eds.), , 2012. Feminist Economics 8 Ruwanpura, K., “Multiple identities, multiple discrimination: A critical review”, , Vol. 14, 2008, p. 77. ” Industrial Law Journal 9 Solanke, I., “Infusing the Silos in the Equality Act 2010 with Synergy , , Vol. 40, 10 2011,Ibid. p. 330. 11 , p. 331. 12 See above, note 5, pp. Rethinking139–167. Equality Projects in Law: Feminist Challenges Unspeakable subjects: feminist essays in legal and social theory - See Hunter, R. (ed.),Law and politics at the perimeter: re-evaluating key debates, Hartin feminist Publishing, theory, 2008; Lacey, N., , , Hart Publishing, 1998, Introduc tion; and Munro, V., Hart 13 Publishing, 2007DiscriminationChapter 2. Law Rethinking Equality Projects in Law: Feminist ChallengesSee Fredman, S., , Oxford University Press, 2010, Chapter 1; and Hunter, R., “Introduction: Feminism and Equality”, in Hunter, R. (ed.), , Hart Publishing, 2008. The Equal Rights Review, Vol. Sixteen (2016) 75 - - Despite14 the rapid expansion of equality and discrimination law in15 recent years – equali ty and non-discrimination provisions are a common feature of national constitutional or ders and of international and regional human rights documents – equality remains out of reach for many. In order to address this persistent inequality, we must set substantive equality as our goal. Doing so allows us to approach inequality as a problem of structural- power, which creates and perpetuates systems of privilege and disadvantage in society. These systems have a pervasive effect on both private and public life: they affect the dis tribution of basic goods, such as access to healthcare and housing; they create negative myths and stereotypes which operate to disadvantage certain groups. By developing an- understanding of intersectionality, particularly through the recognition of intersectional discrimination, law will be able to better identify and eliminate the power dynamics per petuating patterns of privilege and disadvantage. - - In section one, I outline the development of the concept of intersectionality, from its begin nings in the work of Crenshaw, to more recent critiques of its scope and potential. By con- structing intersectionality as a general theory of identity, I show that it has the potential to realign the focus of discrimination law from difference to domination, exposing the struc tural problems that perpetuate discrimination and allowing political and legal processes to work towards substantive equality. - Section two applies intersectionality to law, explaining how it addresses the problems of “sin gle-axis” models. I address criticisms of intersectionality as applied to law, arguing that far- from creating a post-modern splintering of identity to a point of solipsism, recognition of intersectional discrimination is necessary to ensure equality for all, rather than just the rela tively privileged minority within a category. I also argue that as well as addressing theoretical flaws with discrimination law, an understanding of intersectionality allows courts to respond to the realities of discrimination. Section three reviews the response to intersectional discrimination claims by courts in the- UK and Canada, as well as the European Court of Human Rights (ECtHR). Experiences from these legal systems expose the difficulties related to the recognition of intersectional dis- crimination in law, but also provide important guidance for reform. A common thread across all of these jurisdictions is that despite equality activists and organisations calling for rec ognition of intersectional discrimination, and some recognition of the need to address it at policy level, the law tends to resist movement away from a “single axis” model. In section four, I offer some preliminary thoughts on what substantive equality requires beyond recognition of intersectional discrimination, indicating that a much wider-ranging reform is needed. 14 The Constitution of the Republic of South Africa, Section 9; Canadian Charter of Fundamental Rights, 15 Section 15; Constitution of the Republic of Ireland, Article 40(1); and Constitution of India, Article 15. - European Convention on Human Rights, Article 14; European Union Charter of Fundamental Rights, Ar ticles 20, 21 and 23; and American Convention on Human Rights, Article 24. The Equal Rights Review, Vol. Sixteen (2016) 76 1. Intersectionality Theory 16 Intersectionality is, when reduced to its core, a relatively simple concept: it denies that- identity can be dissected into “mutually exclusive categories of experience and analysis”,17 instead asserting that identity is a complex amalgamation of different categories. There fore, a truly intersectional approach states that, for example, the discrimination that a gay woman experiences is different from that faced by other women and different from that- suffered by other gay people. Much of the academic discussion of intersectionality centres on the interaction of race and
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