Intersectional Discrimination

Abstract

Abstract Why has intersectionality fallen by the wayside of discrimination law? Thirty years after Kimberlé Crenshaw coined the term ‘intersectionality’, discrimination lawyers continue to be plagued by this question across a range of jurisdictions, including the US, UK, South Africa, India, Canada, as well as the UN treaty body jurisprudence and the jurisprudence of the EU and the ECHR. Claimants continue to struggle to establish intersectional claims based on more than one ground of discrimination. This book renews the bid for realizing intersectionality in comparative discrimination law. It presents a juridical account of intersectional discrimination as a category of discrimination inspired by intersectionality theory, and distinct from other categories of thinking about discrimination including strict, substantial, capacious, and contextual forms of single-axis discrimination, multiple discrimination, additive discrimination as in combination or compound discrimination, and embedded discrimination. Intersectional discrimination, defined in these theoretical and categorial terms, then needs to be translated into doctrine, recalibrating each of the central concepts and tools of discrimination law to respond to it—including the text of non-discrimination guarantees, the idea of grounds, the test for analogous grounds, the distinction between direct and indirect discrimination, the substantive meaning of discrimination, the use of comparators, the justification analysis and standard of review, the burden of proof between parties, and the range of remedies available. With this, the book presents a granular account of intersectional discrimination in theoretical, conceptual, and doctrinal terms, and aims to transform discrimination law in the process of realizing intersectionality within its discourse.

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