Intersectional Race and Gender Analyses: Why Legal Processes Just Don't Get It
| Author | Elena Marchetti |
| Published date | 01 June 2008 |
| Date | 01 June 2008 |
| DOI | http://doi.org/10.1177/0964663908089609 |
| Subject Matter | Articles |
INTERSECTIONAL RACE AND
GENDER ANALYSES: WHY
LEGAL PROCESSES JUST
DON’TGET IT
ELENA MARCHETTI
Griffith University, Australia
ABSTRACT
Legal processes, particularly those relating to criminal justice, have frequently been
criticized for their inability to accommodate the experiences of racialized women.
Recognizing categories of difference is difficult for processes that are framed within
an ideology that emphasizes objectivity and universalism. The Australian Royal
Commission into Aboriginal Deaths in Custody (RCIADIC) was a quasi-legal entity
that investigated 99 Indigenous deaths in custody, as well as the underlying social,
cultural and legal issues that may have had a bearing on those deaths. The RCIADIC,
like many other legal processes, appears to have been unable to take an intersectional
race and gender approach in its analysis. This article uses the RCIADIC inquiry to
identify, describe and critically analyse the ways in which the dominant liberal ideology
can, at times, operate to exclude racialized women. The reasons identified are based on
the opinions and information collected from 48 interviews of people who either
worked for the RCIADIC or were in some other way associated with the RCIADIC.
The critical analysis presented in this article provides insights into how legal processes
remain patriarchal in focus even when embarking on an inquiry about race.
KEY WORDS
critical race feminist theory; Indigenous Australians; intersectionality; Race and
gender; Royal Commission into Aboriginal Deaths in Custody
SOCIAL &LEGAL STUDIES Copyright © 2008 SAGE Publications
Los Angeles, London, New Delhi and Singapore, www.sagepublications.com
0964 6639, Vol. 17(2), 155–174
DOI: 10.1177/0964663908089609
INTRODUCTION
WHEN LOOKING AT race, law and legal processes rarely consider how
other characteristics, such as gender, might complicate matters and
create distinct and varied experiences of marginalization (Davies,
2002). The way intersectionality affects a person’s experience of and treat-
ment by, the legal system is often too complex for the dominant liberal
ideology to fathom.1Indeed liberalism frequently has difficultly recognizing
that substantive inequality exists, due to its emphasis upon objectivity and
universalism (Simpson and Charlesworth, 1995). Usually only a single charac-
teristic or aspect of a person’s situation is taken into account when law and
legal systems are used to determine claims of injustice or discrimination.
The term intersectionality was first coined by Crenshaw (1989) to illus-
trate the difficulty experienced by judicial officers in recognizing compound
discrimination against Black women. Since Crenshaw’s article there have
been a number of studies that have analysed the way legal processes operate
to exclude the experiences of people who suffer discrimination from both
race and gender (see Harris, 1990; Daly, 1994a, 1994b; Espinoza, 1994; Grillo,
1995; Stubbs and Tolmie, 1995; Razack, 1998; Coker, 1999; Cossins, 2003).
Some North American legal scholars would characterize an intersectional
analysis as exemplifying critical race feminist theory (e.g. Delgado, 1995;
Cossins, 2003). By challenging the issue of essentialism in critical race theory,
LatCrit scholars have contributed to the debates surrounding intersectional
analyses by critiquing the Black/White paradigm and resisting ‘essentialist
assumptions or projections’ by actively applying ‘intersectionality, multi-
plicity, multidimensionality, and other concepts minted in outsider jurispru-
dence’ (Valdes, 1997: 1094–5). Thus, for some time now, scholars have argued
that when talking about race, the effects of gender also need to be considered
and that when talking about gender, the effects of race are also important
(hooks, 1989; Daly, 1993; Hunter, 1996; Brush, 2001).
This article focuses on the marginalization experienced by Indigenous
women as a consequence of western legal processes. There has been an increas-
ing recognition by Indigenous feminist scholars that female voices have been
silenced in critical Indigenous discourse and that a separate Indigenous
feminist scholarship is required which recognizes the position of colonized
women within legal institutions and criminal justice practices (Atkinson, 1990;
Payne, 1992; Paxman, 1993; LaRocque, 1997; Lucashenko, 1997; Huggins,
1998). This perspective has emerged, in particular, when discussing violence
against Indigenous women and children. Similarly, when it comes to consider-
ing the offending patterns and needs of Indigenous offenders, scholars have
recognized that more attention needs to be paid to Indigenous female offend-
ing and their specific custodial needs (Hamilton and Sinclair, 1991; Kerley
and Cunneen, 1995; Brooks, 1996; Cameron, 2001; Aboriginal and Torres
Strait Islander Commission, 2002; Lawrie, 2003; Goulding, 2004).
Such an intersectional approach is important because it circumvents the
dangers of considering race in isolation from gender when making legal
156 SOCIAL & LEGAL STUDIES 17(2)
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