Toward the Implementation of Intersectionality in the European Multilevel Legal Praxis: B. S. V. Spain

By La Barbera, MariaCaterina; López, Marta Cruells | Law & Society Review, January 1, 2019 | Go to article overview

Toward the Implementation of Intersectionality in the European Multilevel Legal Praxis: B. S. V. Spain


La Barbera, MariaCaterina, López, Marta Cruells, Law & Society Review


1.Introduction

Within feminist scholarship and activism, the debate on how multiple and interlocking systems of power shape gender discrimination has been a contentious and an intense one that dates back to the late 1970s (Combahee River Collective 1981; Lorde 1982; Spelman 1988). Introduced by Black Feminism during the 1980s, the debate was revitalized in 1989, when the African-American legal scholar Kimberle Crenshaw coined the term "intersectionality" (Crenshaw 1989). She pointed at the intersection of race and gender structures, policies, and representations to refer to the distinctive structural inequalities that shape African-American women's lives. Crenshaw argued that by segmenting the dimensions of discrimination, both feminist and antiracist policies paradoxically ended up reinforcing the subordination of African-American women (Crenshaw 1991: 1252). Although Crenshaw proposed the concept as a specifically legal tool-as an interpretative criterion to be used in courts (Columbia Law School 2018)- thanks to the work of sociologist Hill Collins (1990), the concept of intersectionality traveled from law to sociology and across all disciplines in the social sciences. Intersectionality entails "a way of thinking about identity and its relationship to power" (Crenshaw 2015) that has continuously gained currency within the English-speaking social sciences (Davis 2008). Today, it is considered a specific field of research (Cho etal. 2013).

The legal debate over intersectionality draws on broader discussions on equality, nondiscrimination, and the legal tools needed to overcome structural vulnerabilities. Intersectionality highlights the substantive dimension of equality. It considers discrimination as a structural issue, rather than a collection of individual behaviors, requiring a systematic response to social inequalities (Hannett 2003; Radacic 2008; Young 2009; Barrere & Morondo 2011). Understanding inequality in its structural dimension has always been a fundamental strand of feminist legal theory. Feminist legal theorists tirelessly warned about the need to overcome the systems of subordination that systematically expose members of historically disadvantaged groups, such as women, to discrimination (Bartlett et al. 2002; Chamallas 2003; Fineman 2008; Hunter 2013; Bonthuys 2013). Canadian feminist legal scholars famously criticized the prevailing ideology in antidiscrimination law that leads law practitioners to interpret discrimination as a problem of unequal treatment and to reduce inequality to its formal dimension (Iyer 1993; Razack 1998; McIntyre 2009; Young 2010).

With the adoption of the Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979, it has become evident that gender equality could not be reached by simply recognizing equality before the law (art. 7 of the Universal Declaration of Human Rights) and by removing formal obstacles to enjoying equal opportunities. Gender equality requires overcoming the substantive dimension of discrimination and addressing the social structures that impair equality. This requires imposing positive institutional obligations to transform society (arts. 4 and 5 of the CEDAW). The dismantling of the structures that systematically produce discrimination entails the recognition of equality in its substantive dimension as a transformative project (Cook & Cusack 2011). Substantive equality entails "a commitment to redistributive justice and radical inclusion [...] opening space for difference" (Lessard 2010: 243). Paying attention to the substantive dimension of inequalities requires recognizing power relations, analyzing the lived effects of the law, and contextualizing individual circumstances within group-based social structures (Young 2010: 195-196). Considering the intersectional feature of discrimination "is part of such a contextualization of the claim to equality" (Young 2010: 196).

The intersectional perspective adds a further layer by emphasizing that the causes of subordination do not stand alone, instead they are intermeshed and mutually constituted. …

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