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«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»

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Terms that have been used include additive discrimination, compound discrimination and intersectional discrimination. Reference is also made to intersectional inequalities, intersectional disadvantage and disadvantages compound, to name only a few.10 Each of these indicates a particular stance. ‘Intersectionality’ has been the notion through which scholars aimed at introducing new orientations into non-discrimination law and equality politics (Crenshaw 1989). Within intersectionality theory, diverse notions are used. It is common to distinguish between ‘additive’ (or ‘compound’) and ‘intersectional’ discrimination (Schiek 2009: 12-13, Makkonen 2002: 10-11). ‘Additive’ or ‘compound’ discrimination would signify instances of discrimination against women on more than one ground, where the role of the different grounds can still be distinguished. ‘Intersectional’ discrimination would refer to such discrimination against women where the influence of various grounds cannot be disentangled, e.g. discrimination through denying ethnic minority women or women with disabilities the right to bear children. Those using the term ‘intersectional disadvantage’ often indicate a wish to move beyond intersectionality (Hunter & Simone de 2009).

Within this minefield, the search for a neutral terminology should best start with documents that have been widely, or even globally, agreed. The Beijing platform for Action for Equality, Development and Peace, issued by the United Nations Fourth World Conference on Women, comes to mind. The governments affirm their determination ‘to intensify efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their race, age, language, ethnicity, culture, religion or disability or because they are indigenous people.’ (United Nations 1995) For a more comprehensive list, with references, see Makkonen (2002) at p. 10.

Multiple Discrimination in EU Law 3 This document refers to multiplying of barriers. Similarly, the term ‘multiple discrimination’ is used in EU policy documents and even EU legislation.11 There is no indication that the term ‘multiple’ is meant to refer to any specific form of connection between the different strands of disadvantage. Rather, we can safely assume that international and European organisations use the term ‘multiple discrimination’ as the overarching notion. Surely the notion can be criticised, for example for the mathematical notion that may be conjured by multiplying (Conaghan 2009: 24) or for the tendency of assuming a separateness of strands of discrimination, which in reality intersect (Yuval-Davis 2007: 565). However, the wide usage of multiple discrimination in international and supranational instruments seems to imply that it is the most obvious ‘neutral’ term.

This report, therefore, uses the term ‘multiple discrimination’ as overarching, neutral notion for all instances of discrimination on several of the discrimination grounds contained in Article 13 EC and in other instruments. The term ‘multiple discrimination of women’ is used to refer to any discrimination against a woman which does not only involve gender.

2.2. The intersectionality debate and its relevance for (EU) legal discourse Not only in the US and Australia, (European Commission 2007: 19) but in socio-legal theory generally, discrimination against women on more than one ground has been widely debated under the notion of ‘intersectionality’.

The term was first used in this context by legal researcher Kimberlé Crenshaw in a 1989 article focusing on the experiences of black women. She used the picture of an intersection of streets.

‘Discrimination, like traffic through an intersection, may flow into one direction and it may flow into another. If an accident happens at an intersection, it can be caused by cars travelling from any number of directions, and, sometimes, form all of them. Similarly, if a black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination.’ (Crenshaw1989, 145) This picture should, of course, imply that damage done by intersectional discrimination is likely to be more severe, just as an accident caused by cars from all directions leads to more damage. The term intersectionality also refers to specific situation of black women (or others situated at the disadvantageous end of two or more characteristics), which can neither be compared to that of black men, nor to that of white women. Crenshaw criticised both feminist and anti-racist politics, the one for neglecting black women’s colour, the other for neglecting their gender. Her concern has been understood as avoiding identity politics (Verloo 2006: 212).

Even before Crenshaw coined the term intersectionality, similar phenomena had been debated in Europe under different headings (Vieten 2009: 95-7). The common notion was that gender, race and class (Yuval Davies 2006: 201) were the central vectors around which inequalities evolved.

Although the intersectionality debate had its origin in legal discourse, it rapidly developed into a notion used more generally within women’s studies, an interdisciplinary field integrating sociology, cultural studies, political and economic science together with the odd legal scholar. The notion may have been first used in See further below under 2.3. b) and 2.3. c).





4 Multiple Discrimination in EU Law order to develop better law and politics. It soon took on other missions. For example, it was used to criticise the capacity of law to mirror any social reality adequately. In the wake of ‘post-modern’ social theory, the notion of intersectionality was increasingly used to theorise identities, rather than to move away from identity politics. Sociological quests into law as a practice that was generally ill-suited to establish change became a dominant feature of some intersectionality research.

‘Modern’ intersectionality theory was criticised because it mainly reflected on law as a medium of performing identities, instead of exploring the potential of equality law to contribute to overcoming disadvantage (Conaghan 2009: 39).

20 years after its official recognition, the concept of intersectionality does not remain uncontested. The emergence of a socio-legal edited collection entitled ‘Intersectionality and Beyond’ symbolises this change. The concept has been criticised as being too complex as to offer any guidance in practical matters (Squires 2008: 55) or as being too rooted in the Anglo-Saxon discourse to be of use in Continental contexts (Rey Martinez 2008: IV). From feminist perspectives, especially in the EU context, the critique has focused on the lack of concern for structural inequality (Verloo 2006: 214-216) and on the danger to submerging the aim of achieving gender equality in other aims (Squires 2008: 55). This latter danger is said to be inherent in the specific way in which the European Union has embarked upon the agenda of multiplying grounds on which discrimination is prohibited (Holzleithner 2005). The specific strategy of the EU involves pursuing a nominal agenda of equality of grounds with a hidden practice of establishing hierarchies (Verloo 2006). This does not seem to be linked to acknowledging multiple, including intersectional discrimination. On the contrary, acknowledging multiplicity and intersectionality has the potential to strengthen the issue of gender equality, given the fact that most people disadvantaged by intersectional discrimination are female (Schiek 2005).

It has been questioned whether a notion as contested as intersectionality can be of use for legal discourse or even practice. Some authors propose to acknowledge the minor role any legal discourse can have in achieving societal change (Conaghan 2009). Others stress that advocacy remains an important element in bringing neglected issues into the public mind, and that advocacy is capable of developing strategies in relation to intersectional discrimination (Goldberg 2009). There is evidence that cases of multiple discrimination can be adequately dealt with by courts (Gerards 2007: 172-180, see also below 3.2. c)). There is also evidence that the position of intersectional discrimination involving gender is presently underdeveloped in EU juridical discourse (Nielsen 2009). Accordingly, much remains to do for sociolegal research at an academic level in this field.

The lack of research is partly addressed by Commission funded projects. The largest of these is the GENDERRACE project, funded via the 7th Framework programme with just under 1 million EUR. Under the long title ‘The use of racial anti-discrimination laws: gender and citizenship in a multicultural context’, legal and sociological researchers from 5 universities and one research centre investigate 2 hypotheses: 1) that women and men will use race equality law differently, and 2) that intersectional experience of discrimination based on race and gender is not recognised properly in legal frameworks based on a single ground approach. The project will cover 6 Member States (Bulgaria, France, Germany, Spain, Sweden and the UK). The researchers aim to examine almost 1000 case law and complaint files and to conduct around 200 interviews of foreign nationals and members of ethnic minorities (women and men) and 70 interviews of stakeholders (in this case excluding national institutions). The project started in February 2008 and will finish in July 2010. Further Multiple Discrimination in EU Law 5 projects funded by the EC Commission include the study ‘Economic Aspects of the Condition of Roma Women’ (project number IP/C/FEMM/2005-09) financed by EC DG of Internal Policies and implemented by an international team co-ordinated by Berliner Institut für Vergleichende Sozialforschung (BIVS).

These projects only cover a fraction of the EU Member States, which makes further research desirable (see below under 4).

2.3. Reflections of these developments in EU law Against this background, we can now briefly map the development of the discussion at EU level, of course focused on a gender perspective.

a) General problems of EU equality law and multiple discrimination Some problems perceived in the field of multiple discrimination may not be due to the problems with this specific field, but rather stem from general problems encountered by EU equality law. Only two aspects shall be highlighted here.

First, EU equality law generally has to be assessed against the background of governance through law in a multilevel polity. Especially when European legal integration relies on secondary law – as is the case with the younger equality provisions – the problems of implementing legislation are multiplied by the divergences between national legal orders. In any field of law, EU legislation is likely to involve some degree of transplanting legal concepts.12 However, the field of equality law has been highlighted as a ‘remarkable example of direct transplantation’, (Hepple (2004: 3),13 mainly based on UK law, but also on Dutch models. (Schiek et al. 2007: 14-5). Especially in a field where law aims at moulding society, transplanting models from any particular background may be problematic. In addition, there may be specific drawbacks with rooting EU equality law mainly in a common law culture. While the ability to take a pin-point approach to law reform in this legal culture can be very positive, it also has the detriment of resulting at times in less than systemically structured fields. The contradictions inherent in EU equality law are likely to result in its rejection by legal cultures that praise themselves for their systemic approaches. Accordingly, EU legislation in the field, as well as the supervision of implementation processes, will be most successful if it does not insist on pin-point transplantation of specific national models. Directives should instead allow a flexible approach on the mode of achieving a substantively equal system of redress against discrimination in 27 Member States and 3 EEA states (Schiek et al.

2007: 25).

Second, EU equality law has traditionally been informed by different intrinsic paradigms, stemming from the logic of the EU integration process. The development from a market unifier towards a human rights approach and an autonomous field of law has been described so often that a repetition is not necessary here.14 The See generally on the limits of transplanting legal concepts from one system to another Cotterell, Roger, ‘Is it so bad to be different? Comparative Law and the Appreciation of Diversity’ in: Nelken & Örücü (eds.) Comparative Law. A Handbook pp. 133-154 Oxford and Portland 2007, M. Graziadei ‘Comparative Law and the Study of Transplants and Receptions’ in: Reimann & Zimmermann (eds.) The Oxford Handbook of Comparative Law pp. 441-476 Oxford 2008, recommending a critical approach to the (limited) possibilities of transplants at pp. 474-476.

Referring to Directive 2000/43/EC, and, in the remainder of the article criticising that this Directive transplants models to combat racism from the UK to the EU which have been recognised as partly dysfunctional in their home country.

For a recent summary with numerous references see Meenan (2007: 12-17), see also Nielsen (2009:

38-39).

6 Multiple Discrimination in EU Law incremental development of EU non-discrimination law on the basis of all these values has resulted in a field of law consisting of different conceptual layers. The values informing these layers include enhancing transnational competition between individuals, supporting individual mobility and engendering European employment markets, protecting against social exclusion, furthering group identities and numerous others. Contradictory values will sometimes lead to clashes of norms within the field.



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