Introduction
Alizé Larguier
Policy & Legal Trainee
As a queer woman of color, my identity is linked to intersectionality and intersectional discrimination. I am proud to have different layers in my identity and consider them an opportunity. However, this means that I might be discriminated because I am a woman, or because I am queer, or because I am a person of color. Looking at my experience through the intersectional lens allows to recognize that I could be discriminated based on all these grounds at the same time. Using intersectionality as a policy tool and recognizing the existence of intersectional discrimination would not only change realities and perceptions, but also enable us to design adequate policies.
First, I want to discuss the policy and legal framework at the European Level, then the perspective of Civil Society Organizations on their challenges and needs. Finally, I aim to link both aspects with potential roles Equality Bodies could have, outlining good practices. In this blogpost, I will argue in favour of intersectionality and its use as a policy, legal and analytical tool that should be mainstreamed across European policies. This article was inspired by the European Commission Workshop on intersectionality, motivated by my experience as a queer woman of color, and driven by the need to look at experiences of discrimination through the intersectional lens to overcome them.
Defining intersectionality
The word intersectionality was defined by Professor Kimberlé Crenshaw, an Afro-American civil rights advocate and a scholar working on race critical theory. She defines intersectionality as the “overlapping or intersecting social identities and related systems of oppression, domination, or discrimination”, meaning there is a superposition of several grounds of discrimination depending on one’s identity. In her 2016 TED talk, Professor Kimberlé Crenshaw highlighted that intersectional discriminations reinforce oppression, and enhance the violent aspect of discrimination. These discriminations are rooted in systemic injustice and social inequality. Hence, intersectionality should be used as an analytic tool to zoom in on the interconnectedness of various grounds of discrimination such as socio-economic status, sexual orientation, race, gender, disability, and religion. Intersectionality can also be used as a policy and legal tool to approach discrimination and inequalities with a structural perspective and to identify patterns of discrimination to create adequate policies.
Moreover, intersectionality as a whole also should be incorporated in the work of Equality Bodies, Civil Society Organizations, and as prism to understand society. This also means that intersectionality incorporates intersectional discrimination.
Intersectionality in the EU legal and policy framework
On a European Level, the legal and policy framework is progressing towards a clear inclusion of the concept of intersectionality, as it is mentioned in the EU Anti-Racism Action Plan: “In addition to religion or belief, racism can also be combined with discrimination and hatred on other grounds, including gender, sexual orientation, age, and disability or against migrants. This needs to be taken into account through an intersectional approach.”, and other EU Equality Strategies. Moreover, the mainstreaming and advocacy for intersectionality is also present within the European Parliament, who, for instance, adopted a Resolution urging the Commission and Member States to create policies that take into account the intersection of discrimination.
Although intersectionality is not mentioned in the Equality Directives, these directives aim to protect against discrimination linked to multiple grounds, while potentially suggesting the superposition of these grounds. Indeed, Directive 2000/78/EC prohibits discrimination on the grounds of religion or belief, disability, age, or sexual orientation as regards to employment, occupation, and vocational training, while Directive 2004/113/EC prohibits discrimination based on sex in access to and supply of goods and services. The Race Directive (Directive 2000/43/CE) acknowledges in its Recitals that ‘the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination’, however, places no specific requirements on Member States.
The protection of several grounds of discrimination could be an open door to understand discrimination as cumulative, and therefore intersectional. Here, the case-law of the European Court of Human Rights (ECtHR) is relevant. Although the ECtHR hasn’t used the term “intersectional”, the Court has found instances of intersectional discrimination under Article 14. For example, the case of B.S. v. Spain shows the existence of intersectional discrimination. The court held that based on Article 14 of the European Convention on Human Rights, the applicant had been discriminated as a black woman working as a prostitute. Although it is not clearly said, the court therefore implies that the applicant was discriminated on the basis of several grounds: “the Court considers that the decisions made by the domestic courts failed to take account of the applicant’s particular vulnerability inherent in her position as an African woman working as a prostitute. The authorities thus failed to comply with their duty under Article 14”. The case-law participates to the evolution of the interpretation of intersectional discrimination.
Furthermore, we can see through the different European legislative processes, that there is a potential reform of the EU policy and legal framework. Indeed, during the legislative process of the Horizontal Directive, the European Parliament amendment proposals made it to the first legal document that included an express reference to intersectional discrimination. Moreover, in upcoming legislative initiatives, such as the recently adopted Pay Transparency Directive, intersectional discrimination is mentioned (Article 3) and the need for “competent authorities take due account of any situation of disadvantage arising from intersectional discrimination”. Recognizing the existence of intersectional discrimination and its relevance in EU Law, is a step towards possibly reforming the EU legal and policy framework. Reforming the framework would allow to have clear and effective provisions on prohibiting intersectional discrimination and promoting intersectional equality. While also acknowledging intersectional discrimination in all legal systems (European and national).
In January 2023, the European Commission hosted a conference on intersectionality, anti-racism, and social rights. The European Commission and Civil Society Organizations representatives discussed the importance of intersectionality and including it in European and National agendas. During this conference, the Co-Director of Equinet, Tamás Kádár highlighted that many cases in European case-law have been and are in fact intersectional, as they involve several grounds of discrimination. For instance, in the Horváth and Kiss v. Hungary case the European Court of Human Rights has recognized the segregation of Roma pupils while also referring to the disadvantaged socio-economic status of certain groups. Although this case didn’t mention intersectional discrimination, other international case-law has made explicit references to intersectional discrimination. For example, the Court of Justice of the European Union (CJEU) Parrish case, Irish Courts directly asked the CJEU whether the intersection between grounds could be understood to be covered by the EU anti-discrimination legal framework. The Court stated that EU anti-discrimination law is not capable of mixing grounds, which relates to the approach taken by the U.S. case Degraffenreid v. General Motors. Thus, there is an apparent contradiction between the intersectional dimension of some cases and the legal construction of anti-discrimination legislation.
If Equality Bodies are at the forefront of the fight against discrimination, they are limited by their mandate and the national legal framework which prevent them from specifically addressing intersectional discrimination. Although the Directives Proposals on Binding Standards for Equality Bodies don’t mention intersectional discrimination, Article 5 (on prevention, promotion, and awareness) stipulates that Equality Bodies should consider the specific characteristics of different target groups. Furthermore, the proposals highlight in both its memorandum and recitals that Equality Bodies should promote equal treatment and equal opportunities and combat discrimination on all grounds as mentioned in the Equality Directives: “Equality Bodies should pay particular attention to discrimination based on several of the grounds protected by Directives 79/7/EEC, 2000/43/EC, 2000/78/EC and 2004/113/EC.”
The role of Civil Society Organizations in advocating for intersectionality
If the policy and legal framework at the European level is starting to use intersectionality as a reference and as a tool to analyze discrimination comprehensively, there are clear gaps remaining, as highlighted by Civil Society Organizations. The role of Civil Society Organizations brings a critical perspective to policy matters and gives an insight into the reality of European citizens’ struggles and challenges with intersectional discrimination, despite the shortcomings of existing EU Law. The Center for Intersectional Justice (CIJ) published a factsheet on intersectionality, and released a joint report with the European Network against Racism (ENAR) in 2020 on intersectional discrimination. These two papers are good examples of the extensive work of Civil Society Organizations in mainstreaming and advocacy for intersectionality. CIJ and ENAR explain the main challenges faced to mainstream the use of intersectionality in designing European and national policies. These challenges include the lack of data collection, and the disproportionate focus on the individual dimension of discrimination rather than understanding discrimination as structural.
The work of Equinet and Equality Bodies contributing to mainstreaming intersectionality
Equinet promotes equality and non-discrimination through supporting and enabling the work of Equality Bodies. As a pan-European network Equinet releases publications, blogposts and hosts events regarding equality and non-discrimination to promote good practices, raise awareness, share insights about the work and challenges of Equality bodies on a wide array of topics, including intersectionality. Indeed, Equinet’s working groups on Policy Formation and Gender Equality have cooperated to draft a Perspective on Innovating at the Intersections – Equality Bodies Tackling Intersectional Discrimination which stresses the importance of intersectionality in the promotion of Equality and the role of Equality Bodies in doing so. Equinet also published a report on domestic and care workers in Europe: an intersectional issue highlighting that domestic and care work is a gender equality issue that should be understood with a intersectional perspective. In November 2022, Equinet hosted a workshop on racism and discrimination against people of African descent, which emphasized the importance of having an intersectional approach to take into account all the different layers that can be added to discrimination, and hence create even higher barriers, when addressing structural discrimination, while highlighting that Equality Bodies hold an important role in raising awareness and supporting victims of discrimination.
Indeed, Equality Bodies participate to raising awareness, monitoring and reporting on discrimination issues, handling victims’ complaints and including intersectional approach to equality and non-discrimination. They are legally required to do so and play a fundamental role in the non-discrimination architecture of the EU. In spite of the limitations that the current EU anti-discrimination poses given there is no obligation for Member States to include multiple and intersectional discrimination within national anti-discrimination legislation, both Equinet and its members have done extensive work in the area. A few of the main learnings are outlined in the lines that follow:
- There is a paradigm shift: from single-axis to multiples-axis discrimination. Therefore, the ability for Equality Bodies to cover most, or all grounds of discrimination is closely linked to intersectionality and understanding discrimination as an intersection. This is highlighted by the Equinet report on expanding the list of protected grounds within anti-discrimination law in the EU.
- Moreover, if some European States are reluctant to talk about intersectionality and intersectional discrimination, Equality Bodies can play a key role in promoting it and using it in their practice.
- Some Equality Bodies have successfully handled victims’ complaints and cases relating to intersectional discrimination. For example, Unia the Interfederal Centre for Equal Opportunities (one of Belgium’s Equality Bodies), worked a case in 2016 covering discrimination against women who wear headscarves in the workplace. UNIA supported three women, who were threatened to be let go if they refused to remove their headscarves at work. The company policies and procedures forbid any religious symbols, as it considered the workplace should be a “neutral” environment. UNIA argued that the three women were discriminated on different grounds, and therefore faced intersectional discrimination. The Labour Court of Brussels concluded that this work regulation is a disadvantage to people who wear a headscarf, and therefore there is discrimination based on religion and belief and on employment. The Court condemned the company to pay indemnities to the victims for lawyer fees and to quit using discriminatory work regulations.
Following previous events, blogposts and reports, Equinet will host training on intersectionality and multiple discrimination in October 2023.
Looking forward: sharing good practices for intersectional change
In conclusion, there are a few good practices to implement in order to achieve intersectional change:
- First, there is a need for representative disaggregated equality data, to cover all intersecting grounds of discrimination. It would provide further evidence of the existence of intersectional, and structural discrimination and could be used by Member States and European institutions to create adequate policies.
- Thus, as argued by Wadzanai Motsi-Khatai and Miriam Acad, intersectionality should be used as an analytic, legal and policy tool to change institutions, to monitor policies and to provide responses to the need for change. There should be clear and effective provisions on prohibiting intersectional discrimination and promoting intersectional equality. As well as having an EU definition of intersectional discrimination, which would allow to acknowledge intersectional discrimination in all legal systems (European and national).
- There is a need for a clear policy and legal framework, and adequate resources as outlined in the proposals on Standards for Equality Bodies which would allow Equality Bodies to contribute to mainstreaming intersectionality in their practice. They could do so by handling victims’ complaints while taking into account the intersectional dimension of discrimination, by collecting equality data and raising awareness. As they are at the forefront of the fight against discrimination, they could also share their expertise and support Member States to ensure they use intersectionality in their policies against discrimination.
The views on this blog are always the authors’ and they do not necessarily reflect Equinet’s position.