A really excellent development in UK law was recently brought to my attention. Under the section defining discrimination, the updated Equality Act of 2010 includes the following guidance for employment law in practice:
3.1 Dual Discrimination
This provision, s. 14, is expected to be implemented in April 2011. It will apply to those who claim that they have been discriminated against on two grounds simultaneously, eg that he is an older Catholic or that she is a black lesbian. It does not permit the combination of more than two characteristics.
The recognition that identity politics intersect, interact, and can exacerbate each other — given the title “intersectionality” by Kimberle Crenshaw in 1989 – has been one of the most transformative concepts of feminist theory (and incidentally, formed the basis of my senior thesis). As echoed by the explanatory notes reproduced above, the idea of intersectionality was initially created to express the discrimination particular to black women, who because of the combination of their race and their gender often suffered more acute disadvantages than either white women or black men. This concept has grown rapidly in popularity, as it provides a means to understand intersecting and overlapping disadvantage and privilege, thereby showing a clearer picture of human experience. It has also been fruitfully used beyond academia in public health interventions among other venues.
To my knowledge, this is the first time that dual discrimination has been recognized in national law, although certainly the concept has been circulating in international and human rights discourse for some time. It has major implications for doubly targeted minority groups (although apparently not triply targeted ones–the government worried that including more factors would introduce undue complications for business). The traditional example, perhaps a nod to intersectionality’s roots, is of a black woman who cannot prove discrimination because women of other ethnicities and black men have not suffered similar mistreatment. Some lawmakers feel that the provision does not go far enough, particularly from a technical standpoint, where as it currently stands, combined indirect discrimination and harassment would be difficult if not impossible to prove. However, it is estimated that %7.5 of discrimination cases will make use of the new provision in the coming year and the addition has generated some excitement in the legal community.
The UK System, for those who are unfamiliar, collects all debates over legislation in Hansard. Bills are debated point by point (welcome conscientiousness compared to the flabby American system), allowing a clear understanding of the justifications and concerns of each Act. For the dual discrimination provision, these discussions did not include direct reference to intersectional theory, but repeatedly, advocates of the section shared the sentiments expressed by Baroness Howe of Illcote: “the combined discrimination provision is important in order to recognise and accept the many facets of an individual’s identity.” This apparently mundane observation of human complexity actually marks a huge departure from the cut and dried “rational man” standards that have pervaded Western legal systems for centuries. The emergence of an intersectionality framework in discrimination law provides a valuable entry point for moving the theory into practice, where it has already been demonstrated to have powerful positive effects, and hopefully the good example of this provision can be extended to other areas of law.
This article is cross posted at The Rhodes Project Blog.