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Intersectionality, coined by Kimberlé Crenshaw in 19891, draws analytic attention to the fact that no social identity category exists in isolation of others. Rather, we are all simultaneously positioned within multiple social categories including gender, social class, sexuality, disability and racialisation among others. These categories reciprocally construct each other when they intersect, forming qualitatively different meanings and experiences that are situated in different contexts, times and power relations. Hence, intersectionality alerts us to the fact that we cannot understand a single category without appreciation of those around it2. Despite the widespread acknowledgment of this theory in international law, contemporary law and policy fail to recognise intersectionality in practice. This essay will examine how intersectionality remains unrecognised in UK law as well as EU law and policy. Through the analysis of government policies and case law, this essay seeks to demonstrate how the law in the contemporary world has failed those at the intersection of different social categories.
Intersectionality in UK law and policy:
a. The Equality Act 2010
UK discrimination law has historically, in instruments such as the Race Relations Act 19763 and the Sex Discrimination Act 19754, taken an approach to discrimination that allows only for a single characteristic to be considered, and treats identity characteristics as discrete, homogenous groups. This trend is continued in the Equality Act 2010 where direct discrimination is defined as unfavourable treatment on the basis of a protected characteristic5. The Act mentions age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation as protected characteristics. Section 146 of the act contains a provision to cover direct discrimination on up to two combined grounds known as combined or dual discrimination. Despite the recognition of multiple discrimination, this section has never been brought into effect as the government deemed it too complicated and burdensome for businesses. This commitment to a single-axis model raises obvious problems for the capacity of the law to respond to intersectional discrimination. However, even if section 14 is implemented, its scope remains limited; it applies only to two grounds of direct discrimination. This notion of dual discrimination remains problematic for it artificially limits the number of characteristics which interact in incidents of discrimination. Furthermore, by providing only for direct discrimination, section 14 does not cover harassment or forms of indirect discrimination. Therefore, the scope of the current law is very narrow.
The Equality Act sought to introduce the concept of multiple discrimination into legislation but failed to deliver on its objectives. Several academics like Iyiola Solanke7 argue that the approach to incorporating protection from multiple discrimination in law needs to move away from the current additive or cumulative approach. Additive, or cumulative, multi-discrimination is where a person is treated less favourably because of more than one protected characteristic and, although the two forms of discrimination happen at the same time, they are not related to each other. For example, a lesbian experiences both homophobia and sexist bullying from her employer during the same incident. Instead, law makers should recognise the more complex and deeper dimension of intersectionality that characterises multiple discrimination. Although using the language of intersectionality, British law has in fact deprived this concept of its content. In leaving the substance of the concept behind, the provision in the Equality Act has not made the analytical shift from a single dimension to multiple consciousness8. Hence, the act has incorporated multiple discrimination without multiple consciousness. Discrimination law has in textual terms taken a step forward yet conceptually it has not moved at all. There have nevertheless been attempts to bring about recognition of intersectional discrimination judicially, despite legislative barriers.
b. Mackie v G & N Car Sales Ltd t/a Britannia Motor Co [2004]
Cases like Mackie9 are evidence that lower tribunals are willing to consider claims that raise intersectional discrimination. In this case the claimant was an Indian woman who had worked for the defendant company for a short period. The directors of the company were of Indian origin and a colleague had told the claimant that they did not approve of Asian women working for their company. The claimant was dismissed without reason after five months. Her claim for race and sex discrimination was successful, with the Employment Tribunal using a hypothetical comparator who was male and of an origin other than Indian. Crucially, the Tribunal found that the claimant had been treated unfavourably because she was an Indian woman, not solely because she was a woman or an Indian.
c. Nwoke v Government Legal Service and Civil Service Commissioners [1996]
This case provides a clear example of the courts endorsing additive discrimination. The claimant was a Nigerian-born woman who applied for a job with the Government Legal Service10. On examining the rankings used for candidates following interviews, it was discovered that the claimant had the lowest possible ranking, with all white applicants, regardless of gender, ranking higher, despite having a lower degree class than the claimant. The tribunal found that the discrimination was on the basis of her race.
d. Bahl v Law Society [2004]
While the aforementioned cases indicate a judicial willingness from the lower courts to recognise additive discrimination, the only case involving an intersectional discrimination claim to reach the higher courts was the case of Bahl11. It was met with firm opposition from the Court of Appeal (CA). Ms Bahl was the first woman of colour to enter the senior management of the law society, holding the post of Deputy Vice President and then Vice President. She resigned however, in the face of allegations of aggressive and bullying behaviour, and brought a claim for discrimination on the grounds of sex and race. While successful at the Employment Tribunal, Ms Bahl lost at both the Employment Appeals Tribunal and the CA. Peter Gibson LJs judgment mentioned: If the evidence does not satisfy the tribunal that there is discrimination on grounds of race or on grounds of sex considered independently, then it is not open to a tribunal to find either claim satisfied on the basis that there is nonetheless discrimination on grounds of race or sex when both are taken together 12. Bahl highlights the constraints placed on courts by the inadequacies of legislation which confines discrimination to the single-axis model13. This case drew attention to the difficulties of dealing with intersectionality in the UK.
While claims of multiple discrimination have appeared in the British courts, intersectional claims have not fared as well here as compared to additive claims14. This inflexibility compromises the ability of anti-discrimination law in the UK to respond to discrimination arising from the interaction, rather than mere addition, of grounds. Such intersectional discrimination is said to be qualitatively different to additive discrimination15. Race and gender, for example, have accumulative effect that is more than a composite of the two parts, yet the current structure of UK discrimination law precludes a holistic approach16. The refusal to recognise intersectional claims would leave women without a remedy in the face of discrimination. There is not only an unwillingness by the government to acknowledge the need to provide this remedy, but also a failure to recognise why it is essential. There are several issues with single-axis models of discrimination. Firstly, such an understanding ignores the fact that people have multiple identities. We all have an age, a gender, a sexual orientation, a belief system and an ethnicity; many have or acquire a religion or develop a disability as well. Secondly, such an approach assumes that identity groups are internally homogenous. Often known as essentialism, such an approach obscures the very real differences within identity groups17. Therefore, intersectionality in UK law and policy still remains unaddressed and does not take intersecting identities into account in anti-discrimination law.
Intersectionality in the law of the European Union:
The European Union (EU), a pioneer in gender equality policies, is moving from predominantly attending to gender inequality, towards policies that address multiple inequalities18. While this seems to suggest that the EU is open to recognising intersectionality in practice, the reality is quite different. This essay seeks to seeks to critically assess the way the EU guarantees the protection of individuals who are discriminated on multiple grounds. Through the analysis of policy, this essay hopes to conclude that the EU legal framework is merely juxtaposing inequalities rather than intersecting them, and is not giving equal importance to the different inequalities.
As EU law does not recognise that multiple identities can intersect, it is argued that the current anti-discrimination legal framework is not adequate to deal with claims of multiple and intersectional discrimination19. Recent legislative developments have, however, raised the issue of multiple discrimination and intersectional disadvantage but they remain guarded and often take a simplistic, rather than an intersectional approach20. Peoples identities are fluid, complex, and are made up of multiple elements. Accordingly, the protection of individuals identities demands an equally elaborate and adaptable anti-discrimination legal framework because if one is to assume that groups are rigidly delineated by race, gender, disability, sexual orientation or other status, [then one] is to render invisible those that are found in the intersection between those groups 21.
Article 13 of the treaty establishing the European Community (EC), in allowing for the adoption of legislation and other measures to combat various forms of discrimination, can be regarded as a significant advance on the position that obtained prior to revisions introduced by the Amsterdam Treaty22. However, the scope of the article in acting as a protection against discrimination is narrow. Firstly, the European institutions are under no obligation to act under Article 13. Rather, they may take appropriate action to combat discrimination on the grounds specified only where unanimity for such action is attained in the European Council of Ministers. In addition, as the European Parliament is merely to be consulted it is given minimal influence over the content of legislation. Furthermore, the provision has no direct effect. Accordingly, in the absence of specific implementing measures, individuals cannot invoke Article 13 EC in and of itself as protection against discrimination23. Furthermore, it has a fairly limited scope in that it applies only within the limits of the competencies enjoyed by the European Union. Therefore, the forms of discrimination referred to in the provision may be challenged only in the fields falling within the powers of the EU, such as employment, education, social security, access to goods and services, accommodation and health care. This means that other areas, such as sport and policing, lie outside the reach of Article 1324.
The implementation of intersectionality in legally binding documents remains weak or non-existent25. While references to multiple forms of discrimination have been progressively incorporated in international and EU legal instruments, the majority of European countries segregate the grounds of discrimination and ignore the intersections among different axes of inequalities in their political and legislative agendas26. National experts report very little case law, whether or not States have an explicit provision for multiple discrimination. Indeed, out of the countries with explicit provision, only Austria, Germany and Italy point to cases before the courts where there is even a suggestion of multiple discrimination. Where there have been cases, the full implications of intersectionality are rarely developed27. Nevertheless important advancements toward the recognition of multiple discrimination have been marked by the EU Racial Equality Directive (2000/43/EC)28 and Framework Equality Directive (2000/78/EC)29. However, these directives mention multiple discrimination only occasionally when recalling that the EU aims to eliminate inequalities and promote equality between men and women: especially since women are often the victims of multiple discrimination . An additive, rather than an intersectional, approach remains dominant in international and European discourse30.
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