Putting Race and Gender Together: A New Approach To Intersectionality

AuthorIyiola Solanke
Publication Date01 September 2009
Putting Race and Ge nderTogether: A New ApproachTo
Iyiola Solanke
European anti-discrimination legislation explicitly calls for member states to consider a legal
response to multiple discrimination, either additive (arising from many grounds) or intersec-
tional (a result of an interaction of grounds). In traditional Anglo-American anti-discrimination
frameworks the structure of separate statutes forces complainants to choose one ground or
another. In Britain, cases such as Nwoke vGovernment LegalService indicate a judicial willingness
to recognise additive discrimination, while cases such as Bahl highlight the di⁄culties of deali ng
with intersectionality.Th is article suggests that to overcome current di⁄culties with intersec-
tional discrimination, ¢rst the qualitative di¡erence of intersectional claims must be clari¢ed;
secondly, the logic of immutability underlying grounds must be replaced byone which accom-
modates intersectionality; and thirdly, a method is required which enables courts systematically
to incorporate social context into judicial decision-making.With these three changes, the quali-
tativedi ¡erenceof i ntersectionalitycan be both understood and activated in the courts.
There is no inherent reason whylegal protectionfrom discrimination is organised
on the basis of categories.Whether closed or non-exhaustive, categorisation has
been the preferred method for the provision of legal protection fromdiscrimina-
tion. In Britain and the USA, the enumerated categories are exhaustive.
By con-
trast, the Canadian Charteron Rights provides a non-exhaustive list ofgrounds
of discrimination,
as does the European Convention on Human Rights
(ECHR). Within Europe, many EU member states (Finland, Hungary, Latvia,
Poland and Slovenia) have used non-exhaustive lists to implement EU anti-dis-
Categorisation is therefore notpreordained,
but mayhave been
inevitable given the nature of political campaigns fordiscrimination law.
Campaigns for discrimination lawdid not occur in avacuum: forexample, the
Su¡ragettes did not include voting rights for black or poor women ^ black
women were conspicuously absent at the Seneca Falls Anti-Slavery Convention
School of Law, Universityof East Anglia, Norwich. Mytha nks tothe anonymous reviewers at the
ModernLaw Reviewfor their comments and corrections, and participants at the Second European Con-
ference on Multidimensional Equality Lawi n Leeds 2009 for their input.
1 The Sex Di scrimination Act 1975, The Race Relations Act 1976, The Disability Discrimination
Act 1995, The Employment (Sexual Orientation) Regulations 2003, The Employment (Reli-
gion/Belief ) Regulations 2003,The Employment(Age) Regulations 2006.
2 O. M. Arnardottir,‘Multidimensional Equality FromWithin: Themes From the European Con-
vention on Human Rights’in D.Schiek and V. Chege (eds),EuropeanUnion NondiscriminationLaw:
Comparative Perspectives on Multi-Dimensional Equality Law (Abingdon: Routledge-Cavendish,
3 S. Fredman,‘PositiveRights and Positive Duties: AddressingIntersectionality’ in D. Schiek andV.
Chege, ibid.
4 A. McColgan,‘Recon¢guring Discrimination Law’(2007) 74 PL 80.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(5) 723^749
of 1848 where mainly middle class white delegates debated the motion for
women’s su¡rage.
As noted byAnna Julia Cooper:‘the white woman could at
least plead for her own emancipation; the black woman, doubly enslaved, could
but su¡er and struggle and be silent.
Likewise, campaigns for racial equality did
not take gender into account: black women disappeared into a vacuum.
Throughout history, campaigns for racial and gender equality each incorporated
a blindness ^ strategic or unconscious ^ to the other. Consequently, as Crenshaw
concluded, feminists, civil rights activists and courts have shared ablind spot.
Not only courts but feminists and civil rights thi nkers have treated Black women in
ways thatde nyboth the unique compoundedness of their situation and the central-
ity of their experiences to the largerclasses of women and Blacks. Black women are
regarded either as too much like women or Blacks and the compounded nature of
their experience is absorbed into the collective experiences of either group or as too
di¡erent, in which case Black women’s Blackness or femaleness sometimes has
placed their needs and perspectives at the margin of the feminist and Black libera-
tionist agendas.
In the late 1970s political projects emerged which sought to address this lack of
coalition in reform movements. For example, the Combahee River Collective, a
black lesbian feminist organisation spoke in 1977 of the ‘futility of privileging a
single dimension of experience as if it constituted the whole of life’ advocating
instead an integrated analysis and practice in recognition that racial, sexual, het-
erosexual and class oppression were interlocking rather than independent
Categorisation and limitation of grounds can therefore be explained as a con-
sequence of political activism, but also may be due to legal pragmatism.The sin-
gle-issue focus did have an important advantage ^ it facilitated the creation of
speci¢c remedies which could to some extent be tailored to each bias. Gender
discrimination is not analogical to racial discrimination and neither of these may
be similar to disability discrimination. In order for law to provide an e¡ective
remedy for persons who su¡ered detriment due to aparticular characteristic, that
characteristic had tobe isolated and magni¢ed,bracketed from all otheraspects of
identity.These totems are the e ntrenched ‘grounds’ upon which discrimination is
unlawful. Bracketing was an e¡ective method to foreground characteristics oper-
ating in the dark
and thereby provide a remedy in law.Targeting protection to
the speci¢c injustice also a¡ected the reach of the law: for example, the use of the
5 A. Brah and A. Phoenix,‘Ain’tI A Woman? Revisiting Intersectionality’ (2004) 5 JournalofInter-
nationalWomen’s Studies 3, 76.
6 A. J. Cooper,A Voice Fromthe South:ByA WomanFromthe South (1892,NewYork:Oxford Univer-
sity Press,1988).
7 G. T. Hull, P. Bell Scott and B.Smith, But Some of Us Are Brave:All the Women AreWhite, Allthe
BlacksAre Men:BlackWomens Studies(New York:The Feminist Press,1982).
8 K. Crenshaw,‘Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory a nd Antiracial Politics’ [1989] Universityof Chicago
Legal Forum139, 15 0.
9 See n 6 a nd n 8 above.
10 T.Morrison, Playing in theDark:Whitenessand the LiteraryImagination (London: Picador,1993).
Putting Race and Gender Together
724 r2009 The Author.Journal Compilation r2009 The Modern Law Review Limited.
(2009) 72(5) 723^749

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