Intersectionality and Beyond

Law, Power and the Politics of Location

Emily Grabham, Davina Cooper, Jane Krishnadas, Didi Herman, Emily Grabham, Davina Cooper, Jane Krishnadas, Didi Herman

• Publisher: Routledge-Cavendish
• Year: 2008
• Print ISBN: 9780415432436
• eBook ISBN: 9781134082216
• Edition: 1
• Topic: Law
• Subtopic: Politics
• Index: Law

This collection addresses the present and the future of the concept of intersectionality within socio-legal studies. Intersectionality provides a metaphorical schema for understanding the interaction of different forms of disadvantage, including race, sexuality, and gender. But it also goes further to provide a particular model of how these aspects of social identity and location converge – whether at the level of subjectivity, everyday life, in culture or in the institutional practices of state and other bodies. Including contributions from a range of international scholars, this book interrogates what has become a key organizing concept across a range of disciplines, most particularly law, political theory, and cultural studies.

Part I
Mapping intersectionalities

Chapter 1
Intersectionality and the feminist project in law

Joanne Conaghan

Introduction

In recent years, the focus of feminist studies has shifted away from the concept of gender as an isolated category of analysis towards a concern with the way in which gender intersects with other categories of identity for purposes of understanding and combating inequality. This shift is in large part spawned by rejection within feminism of ‘essentialist’ invocations of sex and gender and the corresponding collapse of the category ‘woman’ as a core unit of feminist engagement and critique. As such, it may properly be welcomed in its promise to provide more effective ways of tackling the complex and diverse manifestations of inequality which women experience. At the same time, it is arguable that the conceptual and analytical framework generated by ‘intersectional’ approaches has not proved adequate to this challenge and has been dogged by difficulties of application and delivery in the context of feminist theory and strategy.

The object of this chapter is to explore the implications of intersectionality for the feminist project in law. By ‘project’ I do not mean to suggest that feminist engagement with law is reducible to a fixed set of objectives and strategies. Rather, I use the term in the sense articulated by Duncan Kennedy: ‘a project is a continuous goal-oriented practical activity based on an analysis of some kind … but the goals and analysis are not necessarily internally coherent or consistent over time’ (Kennedy 1997: 6). While undoubtedly characterised by divergence in normative, theoretical and strategic approach, feminist legal engagement is, broadly speaking, a practical activity designed to engender, directly or indirectly, socially transformative processes and effects. It follows that part of the value (or otherwise) of intersectionality lies in the possibilities for and effects of its practical deployment. I want to suggest that although intersectionality has been an important dimension of feminist theory and strategy in recent years, it has now reached the limits of its potential. There is nothing more that it can do to advance the feminist project, whether in law, or more broadly. This is not an uncontroversial assertion and it should be emphasised at the outset that it does not imply any rejection of the view that inequality is complex and multifaceted. It is however to suggest that intersectionality does not adequately get at that complex multiplicity; it cannot unpick or unravel the many ways in which inequality is produced and sustained. Part of the problem lies in the fact that, as a frame of reference, intersectionality has its roots in law. Therefore, the limits of law and legal engagement infuse and constrain intersectional approaches. If we are truly to get to grips with the problem of inequality we need to develop more effective analytical and strategic tools. This requires consideration of other perspectives which have engaged with and sought to account for unequal social relations, including approaches which have been overlooked or rendered theoretically ‘suspect’.

The first part of this chapter traces the evolution of intersectionality analysis as a response to perceived limits in feminist theory and politics, highlighting its legal derivation – which accounts in large part for the grid-like aesthetic to which it adheres – and evaluating its deployment as a feminist theoretical tool beyond the narrow confines of legal doctrine. The second part of the chapter excavates earlier efforts to theorise interrelations of gender, race and class within the context of encounters between Marxism and feminism. The section explores the character and contours of materialist feminist debate on gender, race and class to exemplify how intellectual, theoretical and political context can shape the way in which problems are conceived and understood. The chapter concludes with an emphasis on the importance of recognising the contingency of our conceptual and analytical frameworks, arguing that a failure to do so may impede a broader understanding of the issues we address. A focus on alternative ways of thinking about and theorising unequal social relations helps to highlight the limitations of intersectionality as a way of making sense of (gendered) inequality while at the same time providing additional analytical tools in the context of strategic engagements with law.

Intersectionality: a feminist legal story

Origins

The modern roots of intersectionality lie in anti-essentialism although the issues to which intersectionality gives rise have been the focus of feminist theorising for much longer. Anti-essentialism emerged in feminist theory in the late 1980s, producing a cluster of texts which were to become seminal in the feminist legal canon (Fuss 1989; Harris 1990; Spelman 1988). Much of the critique was driven by the concerns of women of colour who argued that mainstream feminist discourse was predicated upon and thereby privileged the experiences of white women. Just as women’s experiences were overlooked through the ‘universalisation’ of men’s, so also were the experiences of women of colour eclipsed by feminist attendance to white women’s interests and concerns: the ‘woman’ of feminism was, for most purposes, white; whiteness was part of the ‘essence’ of womanhood which feminism represented.

The critique of essentialism activated a series of separate but related political and theoretical concerns (Hunter 1996; Conaghan 2000). There emerged a growing recognition of the need to broaden the representational base of feminism to take better account, substantively and strategically, of differences between women. There was also detectable a new willingness among feminists to interrogate their own theories and methodologies, in particular, to problematise the invocation of women’s individual and shared experience as the epistemological base of feminist theoretical knowledge. Finally, there arose a keen suspicion of categories – of categories in general and of the category ‘woman’ in particular (Butler 1990). This was in part because of a desire to avoid importing undesirable essences into feminist theory; but, increasingly also, it entailed the rejection of the idea of essence itself, the eschewal of any notion that categories possessed a pure, incontestable core independent of discursive context. It followed that gender categories had no ‘authentic’ content nor was there a gendered reality which feminist theory could represent. Feminism was without a subject.¹

In some ways, intersectionality constituted a response to the concerns to which anti-essentialism gave expression. In other ways, it was a restatement of those concerns but one perceived to have the potential to move debate beyond the theoretical and political stalemate to which anti-essentialism seemed inexorably to lead. As Rebecca Johnson observes: ‘The point was, as intersectionality theorists reminded, that anti-essentialism for its own purpose was a weak insight … To have any political value, the critique had to be combined with a strategy of anti-subordination. Intersectional theory attempts to do just that’ (2005: 29).

In 1989, in an article by Kimberlé Crenshaw, intersectionality received its inauguration. Speaking about black women’s experience of discrimination, Crenshaw commented:

Consider an analogy to traffic in an intersection, coming and going in all four directions. Discrimination, like traffic through an intersection, may flow in one direction and it may flow in another. If an accident happens at an intersection, it can be caused by cars travelling from any number of directions and, sometimes, from all of them. Similarly, if a black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination.

(Crenshaw 1989: 149)

Crenshaw argued that black women were located at the intersection of racism and sexism. Their experiences were thus the product of both and equivalence of neither. The reliance of anti-discrimination law on a ‘single-axis framework’ (Crenshaw 1989: 139) in which separate claims could be made on the basis of race or sex but not in combination, deprived black women of a legal remedy in relation to their particular experience of discrimination as black women.² At the same time, precisely because that experience was perceived by the courts to be a ‘hybrid’ rather than ‘pure’ form of race or sex discrimination, it rendered black women ineligible class representatives of women or black people for anti-discrimination law purposes,³ their intersectional identity being seen to overwhelm the assumed single identities of anti-discrimination complainants. In these somewhat contradictory ways (Crenshaw 1989: 148–50) black women’s multidimensional experience of discrimination became theoretically and practically erased from the doctrinal framework.

It is worth pausing for a moment to consider the imagery that Crenshaw deploys to support her claims in this context: it is the imagery of lines and planes, crossings, and coordinates. Mathematical and cartographic references are not infrequently deployed in anti-discrimination law discourse. Indeed, it is common legal parlance to talk in terms of ‘axes’ or ‘vectors’ of discrimination while, in the application of equality norms, lawyers make frequent recourse to ‘equations’ of similarity and difference (Stafford 2001: 30). Emily Grabham, among others, argues that cartographic methods are widely deployed in legal discourse, infusing processes of legal categorisation and functioning as techniques for reducing the messiness of people’s’ lives into ‘intelligible legal frameworks’ (Grabham 2006: 7). Similarly, Pierre Schlag, in his analysis of the role of aesthetics in shaping our perception and apprehension of law, highlights the continued grip of what he calls the ‘grid aesthetic’ in legal thought: ‘In the grid aesthetic, law is framed as a field, as a territory, a two-dimensional space that can be mapped and charted’ (Schlag 2002: 1047). While acknowledging the early twentieth century to be the historical high point of this particular aesthetic, manifest in formalist/ ‘scientific’ approaches to law (ibid: 1053), the grid, Schlag insists, continues to leave its mark on modern jurisprudence, encouraging the demarcation of law into bounded legal spaces whose proximity and interrelation can be comprehensively charted and explored.

Intersectionality⁴ is a concept closely entwined with mapping processes, locating points of crossing and charting their significance within a broader legal and theoretical topography. Cartographic imagery therefore cannot help but infuse our thinking around the cluster of issues of which intersectionality discourse is comprised. However, the correspondence with mapping is more than metaphorical. By framing it in this particular way, the problem of intersectionality is ‘brought into being’ (Schlag 2002: 1053) as a problem of representation. Thus, it is no surprise that a primary concern of intersectionality analysis is with how law represents women’s experiences. Indeed, much of the work on intersectionality can be understood as a critique of the ‘map’ of gender inequality offered by law and legal feminism, accompanied by calls for a better representation, a richer topography of women’s lives. This becomes apparent when we consider the development and application of intersectionality discourse by feminist legal scholars.

Development

An immediate concern for Crenshaw was to identify remedial gaps in relation to black women’s experiences of discrimination. This theme has continued to inform doctrinal engagements with intersectionality with a number of scholars taking up and developing Crenshaw’s critique in their own jurisdictions.⁵ However, the problem for Crenshaw went beyond the doctrinal boundaries of anti-discrimination law. The real difficulty, she argued, lay in ‘the tendency to treat race and gender as mutually exclusive categories of experience and analysis’ (Crenshaw 1989: 139). This tendency underpinned anti-discrimination law but also infused feminist theory and politics more generally. By failing to develop an analytical framework which recognised and/or took account of experiences at the intersection, feminism was both conceptually limited and politically distorted. It privileged the concerns of white women, adopted a ‘top-down’ model of subordination (in which the experiences of the least subordinated in the subordinated group – white women – became the measure of subordination overall) and thereby failed to get to grips with the complex ways in which racism and sexism worked through one another to produce forms of subordination with which feminism – and anti-racism – unwittingly conspired.⁶

In a second article, Crenshaw (1991) further developed her critique, focusing on the relationship between intersectionality and identity politics. Noting a tension between negative and positive deployment of identity categories – on the one hand, as a source of powerlessness and subordination, on the other, as a route to social and political empowerment – Crenshaw argued that identity-based political engagement was similarly hampered by a single-axis framework:

The problem with identity politics is not that it fails to transcend difference, as some critics charge, but rather the opposite – that it frequently conflates or ignores intragroup differences.

(Crenshaw 1991: 357)

Crenshaw called for ‘recogni[tion] that identity politics take place at the site where categories intersect’ (ibid: 377) and sought to adapt the framework of identity politics to take better account of experiences which were the product of intersecting identities. She placed this argument in the context of violence against women, showing how intersecting patterns of sex and race-based subordination shaped and informed women’s experiences of violence in ways rarely recognised by the gendered experiential norm (ibid: 359). Crenshaw also highlighted the risk of political conflict between identity groups if intersectional issues were not adequately addressed (ibid: 367–74). The overall thrust of her critique was not the abandonment of categories such as race and sex, nor the rejection of identity politics; rather, her purpose was to develop a theoretical and political framework which was attentive to intersections of subordination, which ‘mapp[ed] the margins’ of identity. Her work was strongly embedded in the practical application of feminist theory and politics and her primary concern was to facilitate more effective strategic engagement with law.

Crenshaw’s deployment of the language of intersectionality soon caught t...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• List of contributors
• Preface
• Acknowledgements
• Introduction
• PART I Mapping intersectionalities
• PART II Confronting law
• PART III Power relations and the state
• PART IV Alternative pathways