Professor Sandra Fredman, Director of the OxHRH has just completed a comprehensive report, Intersectional discrimination in EU gender equality and non-discrimination law, for the European network of legal experts in gender equality and non-discrimination.
It is increasingly recognised that discrimination can occur on the basis of more than one ground. A person who is discriminated against on grounds of her race might also suffer discrimination on grounds of her gender, her sexual orientation, her religion or belief, her age or her disability. Such discrimination can create cumulative disadvantage. Thus ethnic minority women, older women, black women and disabled women are among the most disadvantaged groups in many EU Member States. Similar cumulative disadvantage is experienced by gay or lesbian members of ethnic minorities; disabled black people; younger ethnic minority members or older disabled people.
Chapter 2 of the report deals with the challenges posed by intersectionality. Intersectionality highlights the flaws in discrimination laws which focus on one ground at a time. Chapter 3 of the report consists of a brief exploration of the social context, to give a flavour of some of the problems which an intersectional approach might seek to address.
Chapter 4 of the report analyses the ways in which European states deal with multiple discrimination and intersectionality. It draws on responses by national experts from all the EU member States, as well as the candidate countries. More attention has been given to multiple discrimination by equality bodies, or their equivalent in the States covered in this report. This is particularly important in relation to the research and information being disseminated by these bodies. There is also more data from equality bodies than from courts concerning the numbers of complaints which raise issues in relation to more than one ground of discrimination. There have been decisions by equality bodies in individual disputes which show some recognition of multiple discrimination, but the extent to which multiple discrimination can be fully addressed might depend on whether there is a single equality body or ombud, as against several different ground-specific bodies.
Chapter 5 of the report considers the potential within existing EU anti-discrimination law to incorporate an intersectional approach. Chapter 6 of the report considers whether intersectional experiences can be addressed within EU law. Chapter 7 of the report examines the extent to which existing jurisprudence from the Court of Justice might be understood as reflecting intersectionality. In Chapter 8 of the report, the focus is on positive duties and mainstreaming. The final chapter briefly considers positive action and mainstreaming in EU policies.
The report concludes by reiterating that it is possible to incorporate the perspectives of intersectionality into EU law as it currently stands without requiring new amendments, although, of course, it would be of considerable assistance if the scope and reach of the directives were to be harmonised. Equality bodies and other civil society organisations need to pay specific attention to raising awareness of the issues and to monitor intersectionality through their reports and other investigatory powers they might have.
Mainstreaming and proactive measures which can target the most vulnerable groups are in principle better able to deal with structural issues than litigation. But litigation also plays an important role, first because it gives affected individuals the opportunity to articulate their own claims and, secondly, because there is scope for framing selected strategic litigation, as best practice from the states surveyed showed. Remedies should be effective and dissuasive, both through compensating individuals but equally importantly through addressing structural issues, such as policies and practices which have a particular effect on the most disadvantaged groups. It is hoped that at EU level, active inclusion policies and future strategic plans will more actively include strategies based on the intersectional analysis here, and not just for gender but for intersectionality across all the grounds.