'Intersectionality': A Blind-Spot Missed in the British Equality Framework?

AuthorRand Shahin
PositionLondon School of Economics, GB
Pages32-63
32 Intersectionality’: A Blind-Spot Missed in the British Equality Framework? Vol. VI
‘Intersectionality’: A Blind-Spot Missed in the British
Equality Framework?
Rand Shahin*
ABSTRACT
The current British Equality Framework is premised upon a single-ground approach which
assumes that people’s identities may neatly be classified into manageable characteristics in order
to claim protection. Accordingly, a black wom an facing discrimination on the basis of being a
black woman per se will fail to receive protection under the current approach. This is where
intersectionality steps in; to appreciate that an individual’s identity components may be so
intertwined that an attempt to split them up will not be reflective of the intersectional subject’s
experience. Thus, an intersectional approach internalises the real-lived experiences of its subjects
rather than attempting to force them to suppress aspects of their identities in order to claim
protection. Subsequently, the disparity between the British Equality Framework and the
intersectional approach advoca ted for in this paper exposes a gap in the fight against
discrimination. This paper considers that gap a ‘blind-spot’. Therefore, intersectionality theory
will be used to analyse the British Equality Framework in order to prove the prevalence of the
blind-spot and uncover its origins. It will be shown that the current framework lacks an
intersectional approach. The paper concludes by calling for steps to correct it and subsequently
offer protection to those once neglected by the current single-axis approach.
* Rand recently obtained her LLM (distinction) from the London School of Economics.
From 2016-2019, she read a first class LLB degree at the University of Leeds. As an
intersectional subject herself, Rand is p assionate about eliminating all forms of workplace
discrimination.
2020 LSE LAW REVIEW 33
INTRODUCTION
Is a black woman really just an unraced sex or an unsexed race? Since its
conception, the British1 Equality Framework has protected against discrimination
based on a single identity characteristic such as sex 2 or race 3 or disability. 4
Unsurprisingly, this single-ground approach was reflected in the current Equality
Act 2010,5 which defines direct discrimination as an unfavourable treatment on
the basis of a protected characteristic6 out of the nine protected characteristics.7
This approach enjoys the advantage of tailoring the remedies available to each
instance of discrimination. However, it fails to consider that ‘gender reaches into
disability’8 and that ‘black people can be old’9; i.e. it fails to notice the reality of
the human identity as one that cannot always be broken down into manageable
characteristics.
This is where intersectionality theory comes in. Conceptualised in the late
1900s, intersectionality was conceived to disrupt the exclusion of black women
from social movements and political discourse as a result of the single-ground
approach inherent in policymaking and the Anti-Discrimination Law (‘ADL’).10
Accordingly, the current approach assumes that a black woman’s identity can be
broken down separately into race and sex, rather than conceiving the two as
inseparable. However, intersectionality posits that both racism and sexism, as two
different systems of oppression, interlock to produce her uniquely formed
experience, which is conceptually different from the sum of both grounds.
Accordingly, this paper argues that there exists a gap between the real-lived
1 This paper refers to ‘Britain’ as England and Wales only.
6 ibid s 13(1).
7 ibid s 4.
8 Eli Clare, Exile and Pride: Disability, Queerness and Liberation (South End Press, 1999).
9 Judy Scales-Trent, Notes of a White Black Woman (Pennsylvania Un iversity Press, 1995)
173.
10 Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black
Feminist Critique of Antidiscrimination Doctrine’ (1989) 1989(1) University of Chicago
Legal Forum 139.
34 Intersectionality’: A Blind-Spot Missed in the British Equality Framework? Vol. VI
intersectional experiences of individuals and the law, thus resulting in a ‘blind-
spot’.
Preliminarily, it should be noted that this paper is concerned only with
workplace-related direct discrimination based on any two of the nine protected
characteristics. The discussion is limited to dual discrimination because this paper
believes in an incremental approach to acknowledging intersectionality within the
Framework. Otherwise, this paper predicts that the legislative and the executive
will resist intersectionality on the basis that it could strain the resources of both
the courts and businesses. As such, and as will be seen later, the executive has
already rejected dual discrimination on that basis.
The first section puts forward the theory of intersectionality as an analytical
framework on the premise that an individual’s identity features intertwine
inseparably to create a distinctly formed intersectional experience. Further, the
theory sheds light on the identity politics problem caused by ADL’s essentialist
account of identities. Moreover, intersectionality, as an account of power, exposes
the ways in which structural discriminatory dynamics interact to marginalise
victims existing at the intersections. In doing so, intersectionality exposes the
blind-spot and informs what solutions may be offered to remedy it.
The second section uses intersectionality as a device to analyse the British
intersectional discrimination jurisprudence to prove the prevalence of the blind-
spot. An intersectional lens is utilised to analyse the judicial approach to
discrimination claims in Lewis,11 Mackie,12 O’Reilly,13 and Hewage.14 However, the
majority of the section focuses on the seminal case of Bahl,15 which rejected the
recognition of intersectional discrimination under the framework. Moreover, this
section addresses the comparator requirement and its strict judicial application as
a means to impeding intersectional discrimination. The collective result of the
above arguments proves this paper’s thesis that the current framework fails to
protect victims against intersectional discrimination.
11 Lewis v Tabard Gardens TMC Ltd [2005] ET/2303327/04.
12 Mackie v G & N Car Sales Ltd t/a Britannia Motor Co. Case 1806128/03.
13 O’Reilly v BBC (unreported, 20102200423/2010 19 November 2010 ET).
14 Hewage v Grampian Health Board [2012] IRLR 870 SC.
15 Bahl v Law Society [2004] IRLR 799, [2004] EWCA Civ 1070.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT