Putting Race and Gender Together: A New Approach to Intersectionality

Abstract

European anti-discrimination legislation explicitly calls for member states to consider a legal response to multiple discrimination, either additive (arising from many grounds) or intersectional (a result of an interaction of grounds). In traditional Anglo-American anti-discrimination frameworks the structure of separate statutes forces complainants to choose one ground or another. In Britain, cases such as Nwoke v Government Legal Service indicate a judicial willingness to recognise additive discrimination, while cases such as Bahl highlight the difficulties of dealing with intersectionality. This article suggests that to overcome current difficulties with intersectional discrimination, first the qualitative difference of intersectional claims must be clarified; secondly, the logic of immutability underlying grounds must be replaced by one which accommodates intersectionality; and thirdly, a method is required which enables courts systematically to incorporate social context into judicial decision-making. With these three changes, the qualitative difference of intersectionality can be both understood and activated in the courts.