.png)
Human rights refer to those universal fundamental rights that are inherent to every individual. The possession of these rights is not contingent on identities or statuses unique to people like their religion, ethnicity, nationality, sexual orientation, etc. They form a complementary framework of interdependent and non-discriminatory rights. These rights are constructed to safeguard individuals against indignities, devise minimum standards required for everyone to benefit from available opportunities to fully uncover their potential and fulfil common values like fairness, equality, dignity and freedom. Although they are inalienable and indivisible, these rights are within the sphere of regulations and reasonable restrictions. Examples: the right to life and liberty, freedom of speech and the right to equality.
The atrocities and horrors during World War II prompted the necessity and demand for an international bill of rights, after which the United Nation's Declaration of Human Rights was established on 10th December 1948. This bill designed a framework of common standards to be enforced by every country to preserve human rights for everyone. This was a landmark decision since this document transcended national boundaries and could carve out provisions to safeguard fundamental rights on an international level. This globally recognized human rights regime constructed principles that sought to promote international peace and security, good governance, equality, equal opportunities, etc. Although the UDHR is not legally binding, countries strive to devise systems that are compatible with and the guidelines enumerated in the document.
Intersectionality refers to the convergence of diverse identity statuses that co-exist within the same individual. This generates drastically different experiences when contrasted with any of the individual identities. Kimberlé Crenshaw first coined this term in 1989 with the position of black women in the US at the forefront of her theory. The lived experience of black women differs from that of white women. Anti-racist policy discourses in the US tended to direct their attention at black men, whereas feminist campaigns focused on white women. Black women can be victims of both racial and gender discrimination while white women could undergo the latter but also perpetuate and partake in racial discrimination. Taking identities separately into account homogenizes them, rendering people at the intersection of statuses indiscernible. People experience discrimination from various sources of identity markers, including class, caste, gender, sexual orientation, religion, etc. These discriminations cannot be rectified efficiently if looked upon as isolated features and not interwoven prejudices.
Intersectionality pays attention to the historical, social and political context. The redressal framework tends to focus on the discrimination one faces due to the intermingling of identities. It does not fit people into narrow compartments and acknowledges the evolution of discrimination as a multi-layered and institutionalized system of oppression. Highlighting intersectionality is imperative to apprehend and remedy the discrimination faced by those who experience it based on a confluence of grounds.
The human rights regime encompasses the concept of the right to equality. But this right is unobtainable for many. Multiple sources account for perpetuating discrimination, including setting up a system of privileges that give rise to inequalities, prejudices and stereotypes that blemish social relations. This occurs even with the presence of the right to equality as a guaranteed constitutional provision.
The provision of a list of analogous grounds in the human rights regime and right to equality provisions can disadvantage many. Perception of identity is restricted and those who cannot fit themselves into one of these rigid compartments are excluded. For example, article 15 of the Indian constitution prohibits discrimination "on grounds only of religion, caste, race, sex, place of birth, or any of them." The usage of the phrase "grounds only of" could potentially limit the possibility of detecting discrimination on multiple grounds.
The Committee on the Elimination of Discrimination against Women (CEDAW) recognizes the significance of intersectionality to comprehend the duties of the States that are a part of the convention. But the success of this theory still remains to be adequately implemented to honour and fulfil the complexity that it requires.
According to Joanne Conaghan, the concept of intersectionality provided support to the feminist movements, but it seems to have reached the finish line of its theoretical potential. Inequality is a multifaceted phenomenon and intersectionality, embedded within the law, is unable to account for its complicated nature.
The requirement for today is to go beyond the notion of viewing and simplifying the right to equality by saying that the treatment of the like should be alike. This feeds into the false assumption that equality in treatment is always appropriate. This is exhibited in the case of the Dalits. The term refers to "oppressed" or "broken" and was employed to call a group of people as "untouchables." The origins of this word are traced back to the Hindu religion's caste system where Dalits were last in the Varna system and were disallowed from partaking in the religious and social spheres. They were marginalized, pushed to the periphery of society and were made to do only menial jobs that were perceived as polluting. Despite constitutional provisions prohibiting untouchability and the establishment of affirmative action arrangements, this group still faces discrimination.
Dalit women are the victims of gender-based discrimination and have to bear the brunt of existing stigmas of untouchability as well as prejudices based on the religious, social and cultural realms that force them to a low status in the social hierarchy. This increases their vulnerability to abuse and discrimination. Present social norms must be altered to include variations emerging from numerous identities unique to individuals. As Amartya Sen rightly said, "equal consideration for all may demand very unequal treatment in favour of the disadvantaged."
In 2000, there was an expert group meeting held in Zagreb, Croatia, in collaboration with the Office of the High Commissioner for Human Rights. The existence of individual-specific issues and disproportionate problems being experienced by many was recognized and acknowledged. But, these multiple grounds for discrimination were perceived to be mutually exclusive and independent of each other, rather than seeing them in an integrated manner. The fact that those who face discrimination from multiple sources are unable to seek efficient redressal was also recognized. But, it was argued that the UN focused on singular categories rather than employing a holistic strategy. This neglects the intersectional knowledge of oppression, fails to protect those who are disadvantaged by diverse classifications and disregards the matrix framework that accepts the interwoven implications of identities and power. Hence, the consequences of the intersectionality of discrimination could remain ignored by the existing human rights regime.
Larissa Behrendt repudiates the concept of gender essentialism promoted by Catharine MacKinnon. According to her, attributing rigid and innate qualities to women does not indicate a similarity in their experiences. Aboriginal women fall at the intersection of various sources of discrimination and their experiences or the degree of oppression faced by them is qualitatively different from those of white women. If women of colour are sexual assaulted or harassed, then they have to reconstruct their encounter for it to be compatible with one of two legal descriptions of harassment- racial and sexual. In this way, intersectionality reveals deep-rooted flaws within the legal sphere with the right to equality being curtailed to a definition of "like being treated alike."
Intersectionality can be looked at as a theoretical concept of identity that calls attention to the existence of oppression and presents mechanisms to remedy it. By viewing it in the context of identity, the focal point of discrimination laws can be shifted from difference to domination. This facilitates the disintegration of the model of equality where the difference principle is applied, enabling the creation of a model that perceives equality through the lens of power and powerlessness as compared to viewing it in terms of differences and similarities. The legal response can be modified to take into account the historical and social circumstances of oppression, suppression and domination.
Additive discrimination encompasses discrimination on the basis of numerous grounds. These components of discrimination can be addressed separately and impact people either through their interactions or independently. This type of discrimination has a quantitative implication wherein when one experiences it, there is an escalation in size and not nature. The multiplicity of grounds affects people in an accumulative manner and not in a collaborative manner. This hegemonic mechanism is capable of disregarding the disadvantaged who constitute distinct social identities while establishing a homogenised standard for people. On the other hand, intersectional discrimination provides for a novel compounded subject where it is a multidimensional means of oppression experienced synergistically.
In the United Kingdom, the Race Relations Act 1976 and the Sex Discrimination Act 1975 accounted only for individualized identities, leading to homogenization of people. The Equality Act 2010 provided for direct discrimination being viewed as wrong. But, this discrimination was to be looked within the context of a single protected ground. A paper was released in 2009 by the Government Equalities Office during the passage of the Equality Bill to rectify the drawbacks of not including intersectional discrimination within the discrimination laws. The bill was restricted in 2 ways. First, the focal point was only direct discrimination, neglecting the impact of indirect discrimination. Second, it provided for the amalgamation of only two identities.
At times, laws fail to sufficiently fathom the intricate nature of dissimilarities between racial groups. This leads them to establish models that have progressed along separate but parallel tracks. People not belonging to the majority are grouped in the same category of the minority. Everyone receives similar treatments without diverse identities being accounted for. Even similar categories of people do not have the same experiences. Intersectionality focuses on diversity materializing within groups as well. It aids people in negotiating their converging categories to facilitate the application of this in their daily lives.
Although the concept of intersectionality is becoming more widespread and slipping into the common parlance of people, it is still stuck to the "single-axis" mechanisms that produce anti-discrimination laws. This model is severely restricted in acknowledging intra-category diversity and tends to promote the idea of homogenous identities. This prevents appropriate results and leads to underestimating the complicated nature of discrimination in situations that include multiple grounds.
The main objective of intersectionality is not to prove the privilege or how one group experiences more discrimination over the other, but to expose significant dissimilarities and similarities to amend discriminatory behavior and organize conditions that enable everyone to realize their human rights. There is a need for a more holistic approach to law-making which will enable a shift from binary thinking to a more encompassing perception. The interactions that give rise to identities are not predetermined or fixed but are the product of many forces at work and hence, cannot be addressed by a singular formula. The human rights regime and discrimination laws need to accommodate a multitude of identities with a focus on political, social and historical disadvantage to set up an inclusive model capable of understanding distinct identity markers to sufficiently account for the intersectionality of discrimination.
1. Hemla Lutz, Intersectionality as a Method, Journal of Diversity and Gender Studies, 39- 44 (2015).
2. Jennifer C. Nash, Re- Thinking Intersectionality, Feminist Review, 1-15 (2008).
3. Larissa Behrendt, Aboriginal Women and the White Lies of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse, Australian Feminist Law Journal, 27-44 (1993).