Taxonomies of Inequality: Lawyers, Maps, and the Challenge of Hybridity
| Author | Emily Grabham |
| DOI | 10.1177/0964663906060971 |
| Date | 01 March 2006 |
| Published date | 01 March 2006 |
| Subject Matter | Articles |
TAXONOMIES OF INEQUALITY:
LAWYERS, MAPS, AND THE
CHALLENGE OF HYBRIDITY
EMILY GRABHAM
University of Kent, UK
ABSTRACT
Intersectional discrimination challenges not only the structure of equality law, but
also the techniques that lawyers employ in assessing and arguing discrimination cases.
Client forms, akin to questionnaires, assist lawyers in obtaining a full picture of the
client’s circumstances and in avoiding the omission of any potential legal remedies.
Chronologies of events assist lawyers in mapping discriminatory events and estab-
lishing that the client is within the time limit for submitting a claim to the Employ-
ment Tribunal. These techniques reflect discrimination law’s defensiveness against
lived complexities, which in itself restricts possible intersectional analyses. For
example, through chronologies, each discriminatory event is defined by reference to
only one ‘ground’. Discrimination law therefore links the passing of time itself to the
categories it has produced. In this context, Homi Bhabha’s concept of hybridity
provides a useful way of describing how intersectional subjects relate to their
categorization through law. It shows how legal subjects simultaneously adopt and
resist the grounds that lawyers use to describe their experiences. If discrimination law
is based on enabling legal subjects to speak for themselves, then we should investi-
gate these possibilities for resistance.
KEY WORDS
categories; discrimination; grounds; hybridity; intersectionality; lawyers; mapping
Scientific maps could not be fetishes; fetishes are only for perverts and primi-
tives. Scientific people are committed to clarity; they are not fetishists mired in
error. My gene map is a non-tropic representation of reality, that is, of genes
themselves. (Haraway, 1997: 137)
SOCIAL & LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(1), 5–23
DOI: 10.1177/0964663906060971
6
SOCIAL & LEGAL STUDIES 15(1)
I would call it ‘disauthentication’ through authenticating yourself as an indi-
vidual and as a representative of a minority community. Becoming a subject –
gaining subjectivity through the legal process is a process of personal
disauthentication but generalising about community, stating not only for this
purpose ‘I am this perfectly ordinary woman’ but so is every other trans
woman. (Interview with M, 2004: 2)
INTRODUCTION
ITHASlong been recognized that the current structure of equality law in
the United Kingdom, the United States, the European Union and Canada
cannot readily accommodate claims, and policies, that engage more than
one ‘ground’ of discrimination (Crenshaw, 1989; Duclos, 1993; Fredman,
2001; Hannett, 2003). Scholars have highlighted the ways in which groups
who are defined by reference to more than one characteristic, such as Black
women, fall between the grounds. For example, Kimberlé Crenshaw’s (1989)
work on essentialism within US discrimination law highlighted the tech-
niques used by US courts to exclude Black women from the ambit of race
and sex discrimination laws. Crenshaw used the term ‘intersectionality’ to
describe forms of prejudice and disadvantage that result from complex posi-
tionings. Intersectionality moves beyond the concept of ‘multiple discrimi-
nation’, and its reliance on a notion of cumulative inequalities, to describe
instead new and perhaps unpredictable specificities of experience. To the
extent that ‘intersectionality’, as a term, reflects people’s inherently varied
and unique experiences of inequality, it is more of a flexible and conceptu-
ally productive term than ‘multiple discrimination’.
There are a number of different ways in which UK and European Union
law in effect strangles potential intersectional claims.1 Analysis by Sandra
Fredman (2001) indicates that divergences in the scope of the protection
afforded to the different grounds are instrumental in preventing the develop-
ment of an intersectional approach. Intersectional issues cannot be argued if
one or more of their constituent elements is not currently addressed by legis-
lation. For example, any case involving an element of sexual orientation
discrimination occurring before the UK legislation on this issue came into
force would not be able to engage sexual orientation as a ground.2 But even
if it could, sexual orientation discrimination is not proscribed in all spheres
under UK law. So, unlike the situation with race and ethnicity discrimination,
which is outlawed in the spheres of employment, social security, housing and
the provision of goods and services, sexual orientation discrimination is only
currently outlawed in relation to employment and vocational training. This
means that people experiencing intersectional discrimination on the grounds
of ethnicity and sexual orientation in the provision of housing, for example,
would have to argue their cases on ethnicity alone.
The law therefore contains structural deficits that prevent an intersectional
account of inequalities. However, as well as addressing these deficits, it is
GRABHAM: TAXONOMIES OF INEQUALITY
7
also important to consider how lawyers and clients find themselves impli-
cated in essentializing processes that ‘lose’ the complexities of lived experi-
ences.3 In this sense I am interested in the broader questions of what
intersectionality can say about the relationship between clients and the law,
and what it is about legal practice itself that assists in the organization of
lived experience into distinct legal categories. My analysis takes place against
the background of my own experiences in practice, as a Lesbian Caseworker
at Lesbian and Gay Employment Rights (LAGER).4 One of my aims is to
consider two theoretical accounts of complex discrimination and complex
identification as explanations for intersectionality. The result of this analysis
is a picture of the temporal fluidity of intersectionality, which challenges not
only the overarching structure of equality law, but also the way in which
lawyers construct discrimination cases on behalf of their clients. Using
Donna Haraway’s work on gene fetishism, I develop an account of the way
in which lawyers use cartographic methods, such as chronologies and further
and better particulars, to map, and reduce, their clients’ experiences onto
intelligible legal frameworks. These frameworks require and embed
processes of categorization that leave clients with a sense that they have been
‘disauthenticated’ through their interaction with the law. Such a sense of
‘disauthentication’ goes to the heart of what intersectionality can say about
how we relate to the law: it represents the way in which we are always more
than what the law will say about us. To that extent, it finds useful expression
through Bhabha’s concept of hybridity, and this is examined in the final
section of the article.
M’S CASE: TEMPORAL ASPECTS OF INTERSECTIONALITY
M is an out lesbian, identified as white British, who has a management
position in a large organization in the United Kingdom. A couple of weeks
prior to consulting LAGER for advice, she was subjected to a barrage of
verbal abuse in public by a colleague, who used phrases that referred to her
trans status. She attempted to resolve the situation internally, but was effec-
tively ignored by her line manager. This was the most recent incident in a
history of demeaning comments about M’s gender and trans status from
different senior managers over the past eight years, which she had
attempted, unsuccessfully, to address without formal action. It also
happened against the background of ongoing problems with promotion. M
had applied for a promotion in status within the organization to match both
her skills and her pay grade of the past seven years. After a year’s deliber-
ation, the promotions committee sent a one-paragraph letter to M, inform-
ing her that she had been unsuccessful in her application. When she asked
for reasons, the reply came that the committee did not give reasons for its
decisions. There was enough documentary evidence to consider taking legal
action in M’s case on the intersectional grounds of sex, gender, and sexual
orientation.
8
SOCIAL & LEGAL STUDIES 15(1)
M’s identity is clearly intricately bound up with her ethnicity. In the
aftermath of one of the transphobic harassment incidents, M eventually
made an internal complaint against C, the colleague concerned. C
responded by making an internal complaint of racism against her. This indi-
cates that ethnicity impacted on dynamics of gender and sexual orientation
in the way that C and M related to each other, and it should not therefore
be ignored. However, there is an assumption within discrimination law that
claims should only deal with the apparently ‘non-privileged’ aspects of a
claimant’s identity. The real problem with this assumption, as Nitya Duclos
(1993) has pointed out, is that it ignores the relationships out of which
discriminatory situations arise: ‘The most fundamental error in current
antidiscrimination doctrine lies in its location of difference in the individ-
ual complainant rather than in his or her relationship with others’ (p. 47,
emphasis in the original).
Duclos suggests three bases on which discrimination should be assessed:
(1) how the people involved identify; (2) their relationship; and (3) the social
context in which they are located (p. 48). It is difficult to structure cases with
this degree of context from the outset in UK discrimination law. Ethnicity
did impact on relationships central to M’s case, but as she was not...
LAWYERS, MAPS, AND THE
CHALLENGE OF HYBRIDITY
EMILY GRABHAM
University of Kent, UK
ABSTRACT
Intersectional discrimination challenges not only the structure of equality law, but
also the techniques that lawyers employ in assessing and arguing discrimination cases.
Client forms, akin to questionnaires, assist lawyers in obtaining a full picture of the
client’s circumstances and in avoiding the omission of any potential legal remedies.
Chronologies of events assist lawyers in mapping discriminatory events and estab-
lishing that the client is within the time limit for submitting a claim to the Employ-
ment Tribunal. These techniques reflect discrimination law’s defensiveness against
lived complexities, which in itself restricts possible intersectional analyses. For
example, through chronologies, each discriminatory event is defined by reference to
only one ‘ground’. Discrimination law therefore links the passing of time itself to the
categories it has produced. In this context, Homi Bhabha’s concept of hybridity
provides a useful way of describing how intersectional subjects relate to their
categorization through law. It shows how legal subjects simultaneously adopt and
resist the grounds that lawyers use to describe their experiences. If discrimination law
is based on enabling legal subjects to speak for themselves, then we should investi-
gate these possibilities for resistance.
KEY WORDS
categories; discrimination; grounds; hybridity; intersectionality; lawyers; mapping
Scientific maps could not be fetishes; fetishes are only for perverts and primi-
tives. Scientific people are committed to clarity; they are not fetishists mired in
error. My gene map is a non-tropic representation of reality, that is, of genes
themselves. (Haraway, 1997: 137)
SOCIAL & LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(1), 5–23
DOI: 10.1177/0964663906060971
6
SOCIAL & LEGAL STUDIES 15(1)
I would call it ‘disauthentication’ through authenticating yourself as an indi-
vidual and as a representative of a minority community. Becoming a subject –
gaining subjectivity through the legal process is a process of personal
disauthentication but generalising about community, stating not only for this
purpose ‘I am this perfectly ordinary woman’ but so is every other trans
woman. (Interview with M, 2004: 2)
INTRODUCTION
ITHASlong been recognized that the current structure of equality law in
the United Kingdom, the United States, the European Union and Canada
cannot readily accommodate claims, and policies, that engage more than
one ‘ground’ of discrimination (Crenshaw, 1989; Duclos, 1993; Fredman,
2001; Hannett, 2003). Scholars have highlighted the ways in which groups
who are defined by reference to more than one characteristic, such as Black
women, fall between the grounds. For example, Kimberlé Crenshaw’s (1989)
work on essentialism within US discrimination law highlighted the tech-
niques used by US courts to exclude Black women from the ambit of race
and sex discrimination laws. Crenshaw used the term ‘intersectionality’ to
describe forms of prejudice and disadvantage that result from complex posi-
tionings. Intersectionality moves beyond the concept of ‘multiple discrimi-
nation’, and its reliance on a notion of cumulative inequalities, to describe
instead new and perhaps unpredictable specificities of experience. To the
extent that ‘intersectionality’, as a term, reflects people’s inherently varied
and unique experiences of inequality, it is more of a flexible and conceptu-
ally productive term than ‘multiple discrimination’.
There are a number of different ways in which UK and European Union
law in effect strangles potential intersectional claims.1 Analysis by Sandra
Fredman (2001) indicates that divergences in the scope of the protection
afforded to the different grounds are instrumental in preventing the develop-
ment of an intersectional approach. Intersectional issues cannot be argued if
one or more of their constituent elements is not currently addressed by legis-
lation. For example, any case involving an element of sexual orientation
discrimination occurring before the UK legislation on this issue came into
force would not be able to engage sexual orientation as a ground.2 But even
if it could, sexual orientation discrimination is not proscribed in all spheres
under UK law. So, unlike the situation with race and ethnicity discrimination,
which is outlawed in the spheres of employment, social security, housing and
the provision of goods and services, sexual orientation discrimination is only
currently outlawed in relation to employment and vocational training. This
means that people experiencing intersectional discrimination on the grounds
of ethnicity and sexual orientation in the provision of housing, for example,
would have to argue their cases on ethnicity alone.
The law therefore contains structural deficits that prevent an intersectional
account of inequalities. However, as well as addressing these deficits, it is
GRABHAM: TAXONOMIES OF INEQUALITY
7
also important to consider how lawyers and clients find themselves impli-
cated in essentializing processes that ‘lose’ the complexities of lived experi-
ences.3 In this sense I am interested in the broader questions of what
intersectionality can say about the relationship between clients and the law,
and what it is about legal practice itself that assists in the organization of
lived experience into distinct legal categories. My analysis takes place against
the background of my own experiences in practice, as a Lesbian Caseworker
at Lesbian and Gay Employment Rights (LAGER).4 One of my aims is to
consider two theoretical accounts of complex discrimination and complex
identification as explanations for intersectionality. The result of this analysis
is a picture of the temporal fluidity of intersectionality, which challenges not
only the overarching structure of equality law, but also the way in which
lawyers construct discrimination cases on behalf of their clients. Using
Donna Haraway’s work on gene fetishism, I develop an account of the way
in which lawyers use cartographic methods, such as chronologies and further
and better particulars, to map, and reduce, their clients’ experiences onto
intelligible legal frameworks. These frameworks require and embed
processes of categorization that leave clients with a sense that they have been
‘disauthenticated’ through their interaction with the law. Such a sense of
‘disauthentication’ goes to the heart of what intersectionality can say about
how we relate to the law: it represents the way in which we are always more
than what the law will say about us. To that extent, it finds useful expression
through Bhabha’s concept of hybridity, and this is examined in the final
section of the article.
M’S CASE: TEMPORAL ASPECTS OF INTERSECTIONALITY
M is an out lesbian, identified as white British, who has a management
position in a large organization in the United Kingdom. A couple of weeks
prior to consulting LAGER for advice, she was subjected to a barrage of
verbal abuse in public by a colleague, who used phrases that referred to her
trans status. She attempted to resolve the situation internally, but was effec-
tively ignored by her line manager. This was the most recent incident in a
history of demeaning comments about M’s gender and trans status from
different senior managers over the past eight years, which she had
attempted, unsuccessfully, to address without formal action. It also
happened against the background of ongoing problems with promotion. M
had applied for a promotion in status within the organization to match both
her skills and her pay grade of the past seven years. After a year’s deliber-
ation, the promotions committee sent a one-paragraph letter to M, inform-
ing her that she had been unsuccessful in her application. When she asked
for reasons, the reply came that the committee did not give reasons for its
decisions. There was enough documentary evidence to consider taking legal
action in M’s case on the intersectional grounds of sex, gender, and sexual
orientation.
8
SOCIAL & LEGAL STUDIES 15(1)
M’s identity is clearly intricately bound up with her ethnicity. In the
aftermath of one of the transphobic harassment incidents, M eventually
made an internal complaint against C, the colleague concerned. C
responded by making an internal complaint of racism against her. This indi-
cates that ethnicity impacted on dynamics of gender and sexual orientation
in the way that C and M related to each other, and it should not therefore
be ignored. However, there is an assumption within discrimination law that
claims should only deal with the apparently ‘non-privileged’ aspects of a
claimant’s identity. The real problem with this assumption, as Nitya Duclos
(1993) has pointed out, is that it ignores the relationships out of which
discriminatory situations arise: ‘The most fundamental error in current
antidiscrimination doctrine lies in its location of difference in the individ-
ual complainant rather than in his or her relationship with others’ (p. 47,
emphasis in the original).
Duclos suggests three bases on which discrimination should be assessed:
(1) how the people involved identify; (2) their relationship; and (3) the social
context in which they are located (p. 48). It is difficult to structure cases with
this degree of context from the outset in UK discrimination law. Ethnicity
did impact on relationships central to M’s case, but as she was not...
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