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Intersectional discrimination in EU gender equality and non-discrimination law

June 30th 2016

European network of legal experts in gender equality and non-discrimination

This report, prepared by the European network of legal experts in gender equality and non-discrimination, aims to explore the following question: to what extent does existing EU gender equality and non-discrimination law address the notion of intersectional discrimination?

Background

It is increasingly recognised that discrimination can occur on the basis of more than one ground. A person who is discriminated against on grounds of her race might also suffer discrimination on grounds of her gender, her sexual orientation, her religion or belief, her age or her disability. Such discrimination can create cumulative disadvantage. Thus ethnic minority women, older women, black women and disabled women are among the most disadvantaged groups in many EU Member States. Similar cumulative disadvantage is experienced by gay or lesbian members of ethnic minorities; disabled black people; younger ethnic minority members or older disabled people.

Intersectionality

The report begins by briefly defining its terms and setting out the problems the concept of intersectionality aims to address.Generally there are three main ways in which such discrimination may manifest itself. The first is when a person suffers discrimination on different grounds on separate occasions. For the purposes of this report, this type of discrimination will be called ‘sequential multiple discrimination.’ A second manifestation occurs when a person is discriminated against on the same occasion but in two different ways. For example, a gay woman might claim that she has been subject to harassment both because she is a woman and because she is gay. Such discrimination can be said to be ‘additive’, in that each type of discrimination can be proved independently. For the purposes of this report, this type of discrimination will be called ‘additive multiple discrimination.’ The third manifestation is, however, of a different order in that discrimination does not simply consist in the addition of two sources of discrimination; the result is qualitatively different, or, as Crenshaw terms it, ‘synergistic.’ For example, black women may experience discrimination in a way which is qualitatively different from either white women or black men. Black women share some experiences in common with both white women and black men, but they also differ in important respects. Thus while white women may be the victims of sex discrimination, they may also be the beneficiaries and even the perpetrators of racism. Conversely, black men may experience racism but be the beneficiaries and perpetrators of sexism. It is this type of discrimination which is the subject of this thematic report. It is usually referred to as ‘intersectional discrimination’ and it is this terminology which will be used in this report.

Report Overview

Chapter 2 of the report deals with the challenges posed by intersectionality. Intersectionality highlights the flaws in discrimination laws which focus on one ground at a time. Chapter 3 of the report consists of a brief exploration of the social context, to give a flavour of some of the problems which an intersectional approach might seek to address.

Chapter 4 of the report analyses the ways in which European states deal with multiple discrimination and intersectionality. It draws on responses by national experts from all the EU member States, as well as the candidate countries. More attention has been given to multiple discrimination by equality bodies, or their equivalent in the States covered in this report. This is particularly important in relation to the research and information being disseminated by these bodies. There is also more data from equality bodies than from courts concerning the numbers of complaints which raise issues in relation to more than one ground of discrimination. There have been decisions by equality bodies in individual disputes which show some recognition of multiple discrimination, but the extent to which multiple discrimination can be fully addressed might depend on whether there is a single equality body or ombud, as against several different ground-specific bodies.

Chapter 5 of the report considers the potential within existing EU anti-discrimination law to incorporate an intersectional approach. Chapter 6 of the report considers whether intersectional experiences can be addressed within EU law. Chapter 7 of the report examines the extent to which existing jurisprudence from the Court of Justice might be understood as reflecting intersectionality. In Chapter 8 of the report, the focus is on positive duties and mainstreaming. The final chapter briefly considers positive action and mainstreaming in EU policies.

Conclusions

The report concludes by reiterating that it is possible to incorporate the perspectives of intersectionality into EU law as it currently stands without requiring new amendments, although, of course, it would be of considerable assistance if the scope and reach of the directives were to be harmonised. The first step is to generate a greater awareness of and sensitivity to the ways in which cross-currents of different sources of discrimination impact on people in different contexts. This requires equality bodies and other civil society organisations to pay specific attention to raising awareness of the issues and to monitor intersectionality through their reports and other investigatory powers they might have. There are already good examples of such activity in some member states. Once the issues are properly identified, then equality bodies and others are in a position to determine how to tackle them. Mainstreaming and proactive measures which can target the most vulnerable groups are in principle better able to deal with structural issues than litigation. But litigation also plays an important role, first because it gives affected individuals the opportunity to articulate their own claims and, secondly, because there is scope for framing selected strategic litigation, as best practice from the states surveyed showed. Remedies should be effective and dissuasive, both through compensating individuals but equally importantly through addressing structural issues, such as policies and practices which have a particular effect on the most disadvantaged groups. It is hoped that at EU level, active inclusion policies and future strategic plans will more actively include strategies based on the intersectional analysis here, and not just for gender but for intersectionality across all the grounds.

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