9 minute read
Intersectionality Revisited
Intersectionality
Intersectionality Revisited
In the May issue, I spoke to 5 women who reflected on their personal experience in relation to the protected categories they identified with as set out in s 14 of the Equality Act, 2010; protected categories such as age disability, gender, reassignment, marriage and civil partnerships, pregnancy and maternity, race, ethnicity, religion or belief, sex, and sexual orientation. Here, I invite reflection from four legal women on the reach of Intersectionality as policy and practice across the jurisdictions of the UK.
As a legal concept, Kimberley Crenshaw conceived intersectionality as a way of improving anti-discrimination law for Black women 30 years ago. She argued that feminist theory and anti-racist theory had failed to recognise the ways in which multiple forms of disadvantage sometimes compound themselves and create obstacles that cannot be understood within the conventional ways of thinking about feminism and anti-racism. She argued against a single-axis framework in the courts for thinking about dis/advantage in terms of race or gender, as people’s lives are complex and shaped by many axes which influence each other. She and other black feminists, academics, and legal professionals today, propose ‘Intersectionality’ as a lens on the way these multiple social identities or various forms of inequality intersect within systems of power that breed discrimination.
Intersectionality is not then, about adding these categories together, as a list of harms, but about the overlap of these categories as they are acted upon by systems of power. Put simply, Crenshaw says “it is about how certain aspects of who you are will increase your access to the good things or your exposure to the bad things in life”.
Sally Brett, is head of Diversity and Inclusion at the Law Society of England. She gives a trajectory of the way in which she sees the key notion of inequity, that informs the intersectionality discourse, has been received by the profession:
SB: So, I think (with) law firms, like many organizations, their work on diversity and inclusion has often begun with a focus on a single characteristic or a number of single characteristic groups. I think typically for example, we’ve seen organizations begin, a number of years ago, with concerns about gender equality …and how they could retain and progress those skilled professional women (when) they realized that there were systemic barriers or practices that made it hard for women to participate and progress in the way men had.
Then organizations often began to look at race or ethnicity, then moved on to look at LGBT, religion or belief. In the last couple of decades, as discrimination law expanded and more characteristics were added, and we got the equality act to bring it all together, so people tended to develop an approach that covered all of the protected characteristics, but in separate ways. Large organizations, in particular would set up networks, for example, for different groups based on those single characteristics and programmes of work, to try and ensure that they were addressing the systemic barriers linked to those characteristics.
As time has gone on, and particularly in recent years, people have talked more and more about intersectionality, And I think that’s really helped deepen people’s understanding, or develop a more nuanced understanding of systemic disadvantage, discrimination issues and how we build greater inclusivity.
In this sense, Sally understands intersectionality as a kind of analytic tool to argue for a set of standards for equality diversity and inclusion.
As a concept and practice, however, the reception of Intersectionality is contested in academia by activists and in the legal profession. Part of the contestation in circulation, is to do with the way in which it relies on identity categories, that appear to serve as a means of designating people to categories according to aspects of their physical, sexual or social attributes; a kind of sorting mechanism. This ‘sorting mechanism’ notion is perceived in turn as a human resource tool for managing ‘diversity’, another much contested term, after ‘BAME’. Such terms can serve to place people into whole groups in ways that effectively cover over their differences rather than signify them; a form of governance. In this sense, there is an increasing scepticism towards terms such as ‘intersectionality’, ‘diversity’ and ‘BAME’.
Also contested, is the idea that, by focusing on one group’s, any group’s disadvantage in comparison to another’s, it can divert attention away from a wider baseline approach to social provision, or away from a broader conversation about social issues that can be addressed through a minimum standard of provision applied across society so as to ensure greater inclusivity. Here, the feeling is, that what gets lost with an intersectionality focus on social or cultural identity categories may be “the breadth of conversation” that would address a wider “level of equity”. Amanda Millar, who was the first LGTBQ+ President of Scotland’s Law Society, identifies a shift in the traditional priorities that law firms are being obliged to consider in response to these discussions,
AM: Some of the thought processes in relation to targets is hopefully changing, because the bigger organizations are looking at the advantages of inclusivity, work/ life balance, all of those kind of things. Some big businesses, I know have been involved in setting up the good business and mindfulness charter, and various other things. And helping people understand that this perpetual drive for target driving in the long run will ultimately become unsustainable…but it does bring its own challenges, and I do think we are, generationally, people are becoming more focused on, ‘well, I don’t necessarily want to become a partner, I’m quite happy, earning reasonably well as an associate thanks very much. Because that allows me to get home to my kids or go to yoga at six o’clock or, you know, whatever that might be’.
Brigid Napier, is President of the Law Society of Northern Ireland and she took the opportunity to reflect on the data from the Society’s recently commissioned equality and diversity survey.
BN: One of the interesting findings from our survey is the change in terms of gender and age. Our survey results reveal that that there are more women coming into the solicitor profession in Northern Ireland than ever before. However, our survey data also indicates that whilst more are coming into the profession more women solicitors over the age of 30 are choosing to leave the profession. The survey results indicate that some of the reasons cited include a lack of maternity and equal pay or career progression with only three out of every ten partners are women. Our response has been to be introduce a series of initiatives to support women within the solicitor profession in Northern Ireland. This includes a new Senior Leadership and Mentoring programme which will address the issues of inequality and diversity as well as equal pay.
Brigid’s conversation with the many small firms that characterises Northern Ireland as well as the large firms is about their joint need to comply with the new ethos of equity that intersectionality inscribes.
In practice, or in terms of the tangibility of law reform, there is as yet little reform discernible, notes Blair Wassman, Senior Associate at Brahams Dutt Badrick French LLP. Blair reflects, that where the nuance of Intersectionality may most visibly be playing out, is in relation to high profile cases of senior executives working in the city, who want to argue discrimination in relation to dismissal claims. One senior woman she has worked with claimed on both grounds of sex, and race discrimination, and was therefore able to give more substance to her case, by showing a complex discriminatory attitude so that the Judge could have better insight into the kind of behaviour that was being complained about.
Blair signposts another recent high-profile case of sex discrimination at an employment tribunal with BNP Paribas, as key to raising awareness about the gender pay gap.
BW: I think that’s what is making employers be a little more thoughtful about what they are doing. We certainly find that when these types of issues are raised, employer clients come to us a lot sooner to try to get them resolved before things get really ugly.
However, she emphasizes, in employment law, it remains difficult for people with intersecting experiences of systemic discrimination to demonstrate their case, given the single axis tradition of our legal system, where race discrimination and sex discrimination tend to be treated differently, and not as combined categories.
Where intersectionality may have more impact, might be in Immigration and Refugee Law, as claimants are asked to demonstrate fear of persecution in relation to some of the protected categories that section 14 of the Equality Act 2010, identifies. Similarly, Human Rights law is an area where the conceptual language of intersectional identities, and the privileges and dis-privileges attached to them, may be more familiar to the courts.
One such case, is that of JD and A v UK (2019) that concerns the austerity measures of the housing benefits of women who had been victims of domestic violence. The judgement concluded that the UK had been in breach of art 14 ECHR in its deducting of these benefits. The Court recognised “overlapping” forms of disadvantage in the claimant’s status as a survivor of domestic violence and dependent on benefits. The case highlights how intersecting forms of structural inequalities rendered the claimant vulnerable in the context of a “group vulnerability”.
In terms of substantial legal reform, it must be noted, that the combined discrimination provisions of Section 14 of the UK Equality Act 2010 have not yet been brought into effect, as the necessary ministerial authorization has still not been given. What is clear from the conversation above however, is that the legal profession is increasingly aware of the complexity of discrimination. It manifests a desire to incorporate intersectionality into its work, not only to folding the protected characteristics into its policy statements, but also ‘embedding it’ as Sally says, into its structures and practice.
– Sally Brett
Molly Bellamy
Features Editor & Academic
