Special Focus: Intersectionality Volume 16 (2016) EQUAL RIGHTS TRUST Contents 5 Editorial Intersectionality Articles 13 Jade Glenister Good Intentions: Can the “Protective Custody” of Women Amount to Torture? 38 Se-shauna Wheatle The Constitutionality of the “Homosexual Advance Defence” in the Commonwealth Caribbean Special 63 Gerard Quinn Reflections on the Value of Intersectionality to the Development of Non-Discrimination Law 73 Ben Smith Intersectional Discrimination and Substantive Equality: A Comparative and Theoretical Perspective 103 Ivona Truscan and International Human Rights Law and Intersectional Joanna Bourke-Martignoni Discrimination 132 Siobhan Curran Intersectionality and Human Rights Law: An Examination of the Coercive Sterilisation of Romani Women 160 Shreya Atrey Through the Looking Glass of Intersectionality: Making Sense of Indian Discrimination Jurisprudence under Article 15 186 Johanne Bouchard Intersectionality and Interdependence of Human Rights: and Patrice Meyer-Bisch Same or Different? Interview 207 Intersectionality in Promoting Equality Testimony 223 Layers of Marginalisation: Life for Rohingya Women Case Notes 231 Sam Barnes Physical Fitness and Gender Discrimination: Entrenching Stereotypes 4 The Equal Rights Review is published biannually by the Equal Rights Trust. The opinions expressed in authored materials are not necessarily those of the Equal Rights Trust. Editor: Dimitrina Petrova Assistant Editors: Jade Glenister, Joanna Whiteman Advisory Editorial Board: Sandra Fredman, Colin Gonsalves, Claire L’Heureux-Dubé, Christopher McCrudden, Bob Niven, Kate O’Regan, Michael Rubenstein, David Ruebain, Sylvia Tamale Layout: István Fenyvesi © MarchDesign: 2016 Dafina The Equal Gueorguieva Rights Trust Printed in the UK by Stroma Ltd ISSN: 1757-1650 All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by any means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Center, USA. Support the cause of equality The Equal Rights Trust is a charity relying on the support of the public. To make a donation online, please visit www.equalrightstrust.org, or send a bank transfer, the Equal Rights Trust’s account chequenumber to the with office Coutts address Bank below. (UK) is:For 07130988; donations by IBAN GB43COUT18000207130988; Bank address: Coutts & Co., 440 Strand, London WC2R 0QS Equal Rights Trust 314-320 Gray’s Inn Road London WC1X 8DP United Kingdom Tel: +44 (0)207 610 2786 Fax: +44 (0)207 833 0277 [email protected] www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England and a registered charity. Company number 5559173. Charity number 1113288. The Equal Rights Review, Vol. Sixteen (2016) 55 EDITORIAL Editorial AgeIntersectionality Discrimination The main impression this inelegant heptasyllabic word has made on me over the years is the almost automatic way in which any analysis focusing on it tends to indulge“How inold spatial are you?" meta - phor. No wonder, as the notion of intersectionality is itself a spatial"Ten," metaphor answered struggling Tangle. to upgrade itself (or reduce itself, depending on one’s"You perspective) don't look to alike technical it," said legal the and/or lady. social science term. This issue of the Equal "HowRights oldReview are is you, an ample please?" case returned in point, as Tangle. well as, hopefully, a snapshot capturing the current"Thousands state of understanding of years old," among answered the experts. the lady. "You don't look like it," said Tangle. Different people mean different"Don't things I? when I think they I do. talk Don't about you intersectionality. see how beautiful That which I am!” in - tersects can relate to identities, prohibited grounds of discrimination, human rights, human rights violations, disadvantages, inequalities, systems of oppression, and so on; and intersec- George MacDonald tionality itself is referred to variously as a theory, a framework (another spatial metaphor), Ina method, a narrower a practice… sense, as The a term reader – or willshall find I say, all an of aspiring these usages, term withinand more, anti-discrimination in this issue alone. law – “intersectional discrimination” is often used as synonymous with “multiple discrimination”. This conversationA more useful takeschoice place however in Fairyland, is the use of their“intersectional birth or death discrimination” dates which to describein any case one but it ofmakes the types such of a multipleperfect sensediscrimination, to me that the other one being additive (cumulative) discrimi- whennation. people We speak speak as of if additiveaging in discrimination the “real” when, for example, a Muslim woman has been worldtreated is some less kind favourably of decline, by an that organisation decline whichIswere there treats of noa bestless significance. favourably age, an age all suitable women regardlessfor a life feels likeof their an aberration religion as fromwell as reason. all Muslims It is logi regardless- in an of ideal their world? sex. We In speak Aldous of intersectional Huxley’s Brave dis- cal, iscrimination it not, that when,one who in a is similar a few example,thousand a MuslimNew World woman, in haswhich been happiness treated less is a favourably manipu- years byold an should organisation be more which beautiful, can show as well that as it doeslated not biologicaldiscriminate destiny, against whilewomen the (it hasright many to more non-Muslimintelligent, womenwiser, more in high just, posts) kinder and tothat itbe does unhappy not discriminate is claimed againstas the Muslimsonly pathway (it has people,many enjoying Muslim a menwealth in highof skills, posts), and so cer that- itto is freedom,only the conjunctioneveryone lives of gender until 60,and butMuslim af- tainlyreligion happier that than switches us. That on the the vast less majority favourable tertreatment. reaching The maturity, causality everyone here emerges looks from like the a of us intersectionliving today of will the die protected before characteristics.reaching a young In this adult, example, frozen only in two a permanent characteristics physical inter- hundredsect; does but innot principle, change theintersectional possibility discrimination that and mental may occurage of from bloom, the and crossing never of deterio three or- as timemore passes, characteristics. and perhaps till our last day, rating, until they reach their programmed we could be moving ever closer to the full- dead-line. The anti-utopia, consciously or ness ofKimberlé life. We Crenshaware not diminished. whom we have interviewed for this volumeth has century been rightlydream credited of the as having introduced the term “intersectionality” in social science, in a seminal article back best age – that of the cover girl in women’s in 1989, but the concept behind it existed long before that. Much earlier trends in social Contrary to this vision of ever-growing per- magazines.not, reflects the 20 science have gradually built an understanding that single identities (women, Roma, Dalits, sonal disabled,development, etc.) are the not Greeks a persistently considered useful abstraction, as they reduce real people to just one of the facets of their multi-faceted identities.The question While these so serenelyidentities answeredhave been byin mostthe cases a necessary phase in catalysing political- Greeks movements may have for troubled equal rights, theologians they have, trying over the age of 40 to be the ἀκμή, the pinnacle, the thebest great age ofmen man, of hisearlier defining generations age. The whose dox once it relocates to paradise – that of the mo- “opinions”ographers oftenthey mentionedwere transmitting, only the andἀκμή not of mentto figure of deathout what of its apparent earthly ageowner, the soulor some has, The Equal Rights Review, Vol. Sixteen (2016) The Equal Rights Review, Vol. Eleven (2013) 6 time, turned from rebels against established social hierarchies into silos storing up group stereotypes. In the literature of the last few decades, critical social science demonstrated that race, gender, class, disability, etc. are not just personal identity characteristics but social hierarchies that shape a person’s power status and capabilities. In a concomitant evolution, anti-discrimination law began to grapple with the same realisation of the limiting nature of its cardinal concept of protected characteristics (aka prohibited grounds) expressed in terms of single identities. The metaphor of intersectionality became a central tenet of the modern understanding of identity in social science, as well as in legal philosophy interpreting an- ti-discrimination law.1 If intersectionality helps us to understand the complexities of inequality in society, can it help us to find suitable strategies to fight discrimination, and more generally, reduce inequality in Somesociety analysts by targeting quoted interventions by Ben Smith to and benefit others the in most this issuevulnerable? have expressed scepticism based women,on the presumed ethnic minority complexity women of intersectional of some further disadvantage description, and etc. the –potential reaching infinite to the regressatomic unitof ever of themore individual specific andsub-divisions thus rendering within any the social “protectorates” group categorisations of women, ethnicof equality minority