Recuperating the Intersectional Promise of Equalities Law

From: Bi, S. (2021) Equality Act Review 10 Years On. Equality Act Review.

Dr. Suhraiya Jivraj, Reader in Law and Social Justice, Kent Law School & Centre for Sexuality, Race & Gender Justice (SeRGJ), University of Kent.

Globally, feminists led the way, highlighting the need for law to acknowledge the specific lived experiences of women of colour and developing intersectional theory and practice to address legal gaps. However, ten years later, section 14 of the Act, which would enable individuals to bring ‘dual’ discrimination claims based on two protected characteristics is still not in force. This means that claimants still need to establish that the discrimination in respect of each protected characteristic would be successful if pursued separately (see for example the case of Nwoke v Government Legal Service (1996) 28 Equal Opportunities Review 6).

In this case the Tribunal found that Nwoke had suffered both race and sex discrimination but independently of each other. In the relatively few other cases brought on dual or multiple discrimination judges highlight the need to identify the specific ground on which discrimination has occurred rather than accepting that it is specific to two grounds such as race and sex intersecting (See Bahl v Law Society [2004] EWCA Civ 1070.) This is even though the EHRC’s measurement Framework for Equality and Human Rights (Oct 2017) includes intersectionality as one of its theoretical foundations defining it as identifying “distinct forms of harm, abuse, discrimination and disadvantage that could not be detected using an individual category”. The framework includes the specific examples of such harms and discrimination encompassing low employment rates for Black, Bangladeshi and mixed ethnicity women and social exclusion of older lesbians and gay men in care homes.

As well as being evidenced at the time by the work of the Equality and Diversity Forum, there is also more recent strong evidence of the role played by intersecting inequalities in Britain (Women’s Budget Group and Runnymede Trust Report, 2017). The Fawcett Society and Young Women’s Trust have also identified lack of enforcement of s.14 of the Act as a significant gap in the law’s ability to protect women from the impacts of multiple discrimination in their evidence to the All Party Parliamentary Group (APPG) on Sex Equality in 2016 (Invisible Women Report, 2018). In response, the APPG report stated:

“The government must recognise that multiple discrimination of protected characteristics can be intersectional and/or additive and make these unlawful to offer full protection to women.” (ibid).

The APPG’s recommendation is potentially far reaching. It recognises that discrimination can be experienced based on characteristics that are intersectional, namely mutually constitutive and not separable. For example, it would enable a claimant who is a Black Muslim woman to bring a dual discrimination case without having to prove whether discrimination resulted specifically from her skin colour (race), her sex or her religious identity. However, the current case law demonstrates that there is little understanding amongst the judiciary of how to implement dual discrimination which makes the need to bring s.14 into force even more urgent. This is not only to augment protection on grounds of race and gender but also to promote understanding of how other grounds can and do intersect such as sexual orientation, race and religion.

In fact, these grounds have generated a significant body of case law perpetuating the public notion that they exist in conflict with each other, or that there is a trade-off between them. This situation is compounded further in situations involving minority religion, intensifying fraught debates on integration, community cohesion, and immigration, as seen in the 2019 controversy in the UK surrounding protests by Muslim parents outside a Birmingham school against their LGBT equality lessons. These debates are replicated elsewhere across Europe and beyond. In this polarised context tackling the inter-relationalities of homophobia and Islamophobia/racism together, becomes practically impossible (Jivraj, 2016).

References

Jivraj, S. (2016) “Stopping a Racist March—Activism Beyond the Incommensurability of (Homo)Sexuality and Religion”, in Jivraj, S., Bakshi, S., and Posocco, S. (eds.) Decolonizing Sexualities: Trans-national Perspectives, and Critical Interventions. Counter Press. Available at: http://counterpress.org.uk/publications/decolonizing-sexualities/.