Strong equality legislation at EU level should include…a strong focus on intersectionality.
Intersectionality is not only about individuals’ identities: it’s about the systems that drive inequality and discrimination based on certain prevailing hierarchies.
The opposite of intersectionality is to see a person as a single thing. For undocumented people, in the eyes of the authorities and media, they are seen only or primarily through the lens of their status, and defined in negative, often dehumanising terms.
Even if equality bodies do not explicitly cover migration status as a discrimination ground, they have the power to assist any victim of discrimination, regardless of their nationality or migration status. And we see that they do. Equality bodies address cases of discrimination against migrants on the grounds of nationality, religion and belief, race and ethnicity, disability and gender; and play a critical role in raising awareness of forms of discrimination experienced by migrants and making recommendations that promote greater inclusion.
One example of the important function and perspective of equality bodies is the December 2019 decision of the Paris Labour Relations Tribunal (Conseil Prud’homme de Paris) in favour of 25 undocumented workers of Malian nationality who worked in unsafe conditions on a demolition site. The tribunal recognised “systematic discrimination” against undocumented workers by their employer based on their nationality and origin. It accepted the opinion of the Defender of Rights denouncing a “pyramidal hierarchical system according to the origin of the workers within the site” that predestined workers based not on skills but on their nationality to certain tasks, and describing an “organised system of racist domination.”
In 2019, the Spanish Ombudsman. Francisco Fernández Marugán also weighed in on systemic exclusion of undocumented people, in that case from the protection of Spain’s justice system. The Ombudsman recommended to the Ministry of the Interior that undocumented people who had been victims of crime be able to file a complaint, without this resulting in a procedure to remove them from the country. This echoes a recommendation already by made this office in 2004, which was partially accepted five years later when Organic Law 2/2009 incorporated into the immigration law a provision that grants legal status to the protection of foreign women victims of gender violence. The Ombudsman reports receives constant complaints from foreign nationals who report having been victims of crime and leave the police station having received an order to leave the territory because of their status.
We are encouraged that the EU’s Equality Task Force has taken an explicitly intersectional approach, as had the EU’s new gender equality strategy. This approach, which must go beyond a focus on individualised acts of discrimination to systematic drivers of inequality, should be reflected in the EU’s equality legislation and its implementation at the national level.