From critical theory to litigation strategy: Can intersectionality transform EU equality law?

Abstract

While legal scholarship has consistently lamented the lack of recognition of intersectional discrimination in courts, the question of whether intersectionality features in lawyers' litigation strategies remains in a blind spot. Although a growing body of interdisciplinary scholarship probes how legal mobilisation shapes the construction of EU law, the role of critical theory in EU legal entrepreneurship has attracted relatively little attention. This article thus displaces the focus from the judicial reception to the litigation of intersectionality. Through a series of interviews and doctrinal analysis, it examines the mobilisation of critical epistemologies in the framing and litigation strategies of norm entrepreneurs in the field of EU equality law. It explores how intersectionality is seized by legal practitioners, transformed as it enters the repertoire of law and rights, and incorporated in litigation strategies to contest, transform and construct non-discrimination law before the Court of Justice of the EU.