On uses, mis-uses and non-uses of intersectionality before the Court of Justice (EU)
| Author | Dagmar Schiek |
| Date | 01 June 2018 |
| Published date | 01 June 2018 |
| DOI | 10.1177/1358229118799232 |
| Subject Matter | Articles |
Article
On uses, mis-uses
and non-uses of
intersectionality before
the Court of Justice (EU)
Dagmar Schiek
Abstract
Intersectionality, frequently used by political scientists, sociologists and anthropologists
as a highly abstract concept, originated as the socio-legal critique, by Kimberle
´Cren-
shaw, of US courts’ ignorance of discrimination against Black Women specifically. That
ignorance emerged in cases such as DeGraffenreid, in which the claimants challenged a
collective redundancy scheme resulting in dismissing all Black Women on grounds of
indirect discrimination. The court refused to recognise Black Women as a category of
relevance and did not find any discrimination because the scheme did not impact dis-
proportionally on White Women or Black Men. As regards EU law, some socio-legal
scholars of today doubt that intersectionality has any value as a practically relevant
concept. This article discusses the question whether and how intersectionality can and
should be used in applying EU non-discrimination law through a critical analysis of three
ECJ rulings delivered between 24 November 2016 and 14 March 2017. The Parris case
concerning the pension claims of two white homosexual Men can be qualified as the
Court’s “DeGraffenreid moment” because it refused to recognise discrimination in a
case where the intersection of being over 63 and homosexual was the basis of excluding
the Men from a survivor’s pension. The Court refused to recognise combined dis-
crimination and found that neither age nor sexual orientation in isolation were the
reason of that exclusion. The more recent Achbita and Bougnaoui cases seem to
School of Law, Centre for European and Transnational Studies, Queen’s University Belfast, Belfast,
UK
Corresponding author:
Dagmar Schiek, School of Law, Centre for European and Transnational Studies, Queen’s
University Belfast, Belfast, UK.
Email: d.schiek@qub.ac.uk
International Journalof
Discrimination and theLaw
2018, Vol. 18(2-3) 82–103
ªThe Author(s) 2018
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DOI: 10.1177/1358229118799232
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constitute instances of surprising ignorance of racializing Muslim Women through
penalising them for wearing a headscarf: The Court, following its Avocates Ge
´ne
´rales,
refused to protect Women against dismissal on grounds of that garment on the basis of
extensive justifications for religious discrimination, thus ignoring a pervasive exclusion on
the intersection of gender and ascribed race. The article criticises all three rulings with a
twofold argument. First, it is submitted that anti-discrimination law should and can
recognise intersectional discrimination without losing its focus by a reconceptualization
around the nodes gender, race and disability. Second, it is argued that EU anti-dis-
crimination law can be interpreted to encompass this concept by using a purposive
interpretation.
Keywords
Intersectional discriminat ion, exclusion of Muslims as race d iscrimination, functional
interpretation
Introduction
Does the European Court of Justice (ECJ
1
) recognize and acknowledge intersectional
discrimination if and when confronted with it? That question was tested three cases
decided between November 2016 and March 2017, the trio of Parris (David L. Parris
v. Trinity College Dublin and Others, C-443/15 European Union (EU): C:2016:897),
Achbita (Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebes-
trijding v. G4S Secure Solutions NV, C-157/15 EU: C:2017:203) and Bougnaoui (Asma
Bougnaoui and ADDH v. Micropole SA, C-188/15 EU: C:2017:204). As a novelty for the
ECJ,
2
the trio required acknowledging intersectionality, should the underlying discrim-
ination be fully recognized (for a different and complementary perspective on these
cases see Howard, 2018).
Briefly, intersectional discrimination can be characterized as discrimination on more
than one ground where either the specific contribution of any one of these grounds is
indiscernible or the full extent of discrimination is only recognizable by acknowledging
the combination of two or more grounds (Makkonen, 2002, pp. 9–14; Schiek, 2009, pp.
4–6). It thus constitutes a specific subsection of discrimination on more than one ground.
The factual background of those cases, all three emerging as references from national
courts, are fascinating illustrations of how the concept of intersectional discrimination
can be used erratically, and thus may augment inequalities that discrimination law should
address. The Irish Parris case concerned the refusal of a university superannuation
scheme to provide a survivor pension to an employee’s same sex partner. Th is was
based on a general rule preventing access to a survivor pension for couples legalizing
their relationship after the policy holder’s 60th birthday. In Ireland, registered partner-
ships for same sex couples only became available in 2011, resulting in excluding homo-
sexuals born before 1951 from access to a survivor pension. The Belgian (Achbita) and
French (Bougnaoui) cases concerned the dismissal of Women whose names indicate
‘Non-Western’ descent because they wore a headscarf motivated by their Muslim creed.
Schiek 83
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