How Can an Intersectional Analysis Contribute to Feminist Legal Theory and Activism?

French philospher and writer Jean-Paul Sartre and feminist writer and philosopher Simone de Beauvoir attend a protest, Paris, France, January 11, 1961. (Photo by Pictorial Parade/Agence France Presse)

Tanvi Wadhwa, University of Kent

Intersectionality was first used in the context of feminism by Kimberlé Crenshaw, a professor of law and a legal scholar, in her paper on how antidiscrimination theory sometimes fails Black women[1]. Crenshaw uses a literal intersection to explain what she deems the definition of intersectionality is, when used in the context of feminism:

“Discrimination, like traffic through an intersection, may flow in [many] direction[s] … If an accident happens in an intersection, it can be caused by cars traveling from any number of directions … if a Black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination.”[2]

Over time, other academics went on to use this term, not only to consider Black women’s experiences, but also to consider other experiences across all races. After the historic Women’s March on Washington in 2017, ‘intersectionality’ became a much more commonly used word. But with its popularity, came the eventual downfall: the confusion surrounding the very definition of ‘intersectionality’. It was considered to be vague. This vagueness, along with the open-endedness of intersectionality however; is seen by Davis as the reason why intersectionality is such a success[3]. But it is also true that such ambiguity can lead to difficulties when conceptualizing the usage and application of intersectionality as a way to analyze feminist legal theory and activism.

Through this paper, I am going to critically analyze the contributions intersectional analyses can make to feminist legal theory and activism. I will begin by drawing upon all the ways an intersectional analysis can positively contribute to feminist legal theory and activism. I submit that intersectionality provides four specific benefits: simultaneity; complexity; irreducibility; and inclusivity. Although there is confusion and ambiguity surrounding the concept, along with a cloudy definition of the notion, I will argue that the ambiguity of intersectionality is exactly what makes it so successful and popular amongst legal scholars.

Advantages of Using an Intersectional Analysis

One of the positive contributions of an intersectional lens is that it offers a level of simultaneity: all categories of mistreatment of women are read simultaneously. Without this contribution, the fragmentation of different types of oppression continues to benefit the relatively privileged members of each oppressed group. This separability then goes on to compare different types of oppression and rank them. “The assumption [is] that categories of race and class have to be invisible for gender to be visible”[4]. But the use of an intersectional analysis allows for the overlap of multiple oppressions and makes all these visible at the same time so as to avoid excluding any types of oppression, which Patricia Hill Collins claims we all do naturally: “each group identifies the type of oppression with which it feels most comfortable as being fundamental and classifies all other types as being of lesser importance.”[5]

Another way intersectional analyses contribute positively to feminist legal theory and activism is the appreciation of complicated social structures and individual subjective experiences. Something monistic policy approaches routinely fail to do. Monistic approaches reduce complex experiences of simultaneous oppressions into unitary categories which, it can be argued, the law sometimes does: Crenshaw observed that anti-discrimination law is dominated by a “single-axis framework”[6]. For example, in the case DeGraffenreid v General Motors, a case was brought by five Black women, as it was revealed that General Motors did not hire Black women before 1964. The majority of the Black women who were hired were removed from service soon after. However, the court responded to the attempt at bringing the suit specifically on behalf of black women, with: “this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.”[7] This kind of monistic or ‘single-axis’ approach reduces the experiences of Black women and other disproportionately affected victims, into categories of either sex discrimination or race discrimination. Furthermore, the fact that these women also went on to lose the case shows that, without an intersectional view of antidiscrimination law, the court failed to take into account the complexity inherent to the claimants’ simultaneous oppressions and individual experiences as both a woman and a Black person.

Additionally, an intersectional view brings about irreducibility in victim testimonies. Intersectionality asserts that oppression is the result of the interaction of various social divisions and, therefore, neither “a process of accretion (in the sense of adding one on to the other, thereby reducing them to the sum of their parts)”[8] nor a process of reduction is as efficient. Instead of ‘ranking’ the different categories of oppression in order of importance, intersectionality allows the consideration of all different categories of oppression at an equal level, because discrimination comes about through the interaction of ‘simultaneous’ oppressions. For instance, Marxists feminists tend to rank class oppression higher than other oppressions; white feminists tend to rank gender oppression higher than other oppressions; and political lesbians tend to rank oppression as a result of the patriarchal structure higher than other oppressions. This is eloquently put by Yuval-Davis, who claims that each division “prioritizes different spheres of social relations”[9]. By doing this, each of these feminist groups are stereotyping, reducing and fragmenting people based on “differences and commonalities”[10], but by considering feminist legal theory with an intersectional lens, such narrow, reductive narratives of oppressed groups can be avoided.

The final benefit is inclusivity. One of the ‘hallmarks’ of intersectionality and also Black feminist thought is “the necessity of addressing all oppressions”[11]. Crenshaw claims that, for Black women, the value of feminist theory without intersectional analyses is diminished, as “their exclusion is reinforced when white women speak for and as women.[12] Crenshaw’s claim shows that, without the inclusivity intersectionality brings, people are excluded from oppressed groups by those who are the most privileged in each group. By centering the experiences of certain people, those who are excluded from oppressed groups can be highlighted by intersectional theorists.

Disadvantages of Using an Intersectional Analysis

Intersectionality can be difficult to put into practice when researching. Although it is claimed that intersectional analyses can maintain the complexity of social structures and subjective experiences without reducing or fragmenting simultaneous oppressions, it is extremely difficult to research, as a paradox is created: in order to understand intersectional analyses, it is necessary to isolate each category of oppression beforehand, thereby creating unitary analytical categories, like ‘ethnic minorities’ or ‘women’. Like Jean Ait Belkhir and Bernice McNair Barnett claim: “Despite the warning of … scholars to not isolate race, class, or gender, this is a necessary analytic step to understand the intersectionality in the end.”[13] Moreover, this approach could also reduce these simultaneous oppressions through the process of ‘accretion’, as previously mentioned, so that the different categories of oppression are simply reduced “to the sum of their parts.”[14] Van Witteloostuijn also finds the role of a researcher to be an issue when she poses the question: “How do I account for my role as a researcher?”[15] The ambiguity of intersectionality is indeed what makes the concept a success, but it is also what holds the concept back from being as useful as it can be in feminist legal theory and activism. However, in light of these criticisms, it can be understood that perhaps intersectionality is not to be used as a research method per se, but “more as a heuristic to interpret results of quantitative or qualitative research.”[16] With this in mind, it can be argued that the burden of ensuring that simultaneous oppressions are not reduced, is on the researcher and not on intersectionality as a concept. Furthermore, a researcher’s findings can be generated through the use of unitary analytical categories, but this is irrelevant, as it is up to the researcher, yet again, to apply the intersectional analysis to the research, to aid the researcher’s findings, and come out with a conclusion that does not isolate each category of oppression. I think that it is possible to use an intersectional approach when conducting feminist legal research, no matter which method of research is used by the researcher.

Another criticism is from a Marxist perspective from Shah and Lerche. They claim that intersectional theories are inadequate in explaining the “the inextricability of the ways class relations and identity shape each other”[17]. They claim that Bourgois’s concept of conjugated oppression (the co-constitution of class-based relations and oppression along the lines of race, ethnicity, gender and, in India, caste and tribe[18]), which is similar to the concept of intersectionality, instead shows the differences within the labour force and is therefore “entrenching Dalits and Adivasis at the bottom of social and economic hierarchies in India”[19] (Dalits and Adivasis are “historically… vulnerable and marginalized”[20] communities). This critique of intersectionality is, however, not very strong, as Supurna Banerjee and Nandini Ghosh claim that “[Shah and Lerche] hold it to treat different social markers as discrete entities”[21], or in other words, Shah and Lerche treat the social markers that people are identified by, like clothes and dialect, in isolation to other forms of oppression, which negates the purpose of intersectionality.

Helen Pluckrose[22] offers yet another negation. She alleges that intersectionality undervalues “shared human experience and rights” and also “personal autonomy and distinctiveness”, or ‘universality’ and ‘individuality’, respectively. She claims that, as a result of this, and also a heavy focus on “group identity”, individuals are then put into a “collectivist” position, in which the group takes priority over the individual. Although it is true that this focus on “group identity” should not come at the cost of the welfare of the individual, I do not think that intersectionality subscribes to the notion of collectivism, nor does it disallow individuals the right to “hold any [identity]” they want to. Through intersectionality’s inclusivity, each individual’s oppressions are addressed, and those who may be excluded from having their oppressions addressed are included through intersectional approaches, which goes against the notion of collectivism completely. Moreover, due to all the benefits intersectional analyses bring, as outlined and analyzed in this essay, individuals are allowed to choose their identity, because their simultaneous and complex struggles are recognized, and not reduced.

A further criticism of the contribution an intersectional analysis can make to feminist legal theory and activism is offered by Toni Williams[23]. She focuses on the effects of intersectionality when considered in the sentencing of Aboriginal women in Canada. Following the decision in the case of R v Gladue[24], in which the judges elaborated the purpose of a newly reformed provision, which requires “particular attention to the circumstances of aboriginal offenders”[25], the judges engaged well with the intersectional analysis that was required of them, and it seemed that the provision’s aim to reduce the imprisonment of Aboriginal women through the use of an intersectional analysis, would work. However, Williams argues that this attempt to sentence Aboriginal people differently has fed into the stereotypes of Aboriginal women and the criminality that is associated with them. She believes that it is because of this reason that there had been an increase in prison sentences (Aboriginal women used to represent 21% of the federal female prison population in 1996, before the provision was put into place, but as of 2006, they represent 31% of the federal female prison population. What’s more, Canada’s overall incarceration rate has dropped since 1995[26]) but the intersectionality claims that were intended to support Aboriginal women who commit a crime, now seem to be justifying “assigning the defendant to carceral space.”[27] I agree with Williams’ view that intersectionality can be employed to identify the differences between women, especially in the context of crime, but a difficulty arises when one tries to employ the same intersectional analysis to remedy those differences.

Therefore, perhaps the contribution intersectionality can make to feminist legal theory is useful in some sense, but this contribution is limited to an extent. However, coming back to the point concerning intersectionality being used as a ‘heuristic’, as opposed to a ‘research method’, it can be argued that, in the context of the overrepresentation of Aboriginal women in Canadian prisons, the use of intersectionality backfired. As suggested above, the burden of using intersectionality in a way that considers the simultaneous and complex oppressions one faces without reducing these oppressions or excluding any oppressed groups is on the user. On this occasion, the contribution intersectionality had on feminist activism was a negative one, but it is important to keep in mind that intersectionality stayed the same and it was the user of that idea that changed its value.

Conclusion

Intersectionality has indeed come a long way from when Crenshaw first defined it, but it is important when using intersectionality today to understand Crenshaw’s original purpose when she defined the term, and to also keep in mind the challenges that intersectionality as a notion faces today, and how these can be dealt with.

Throughout this paper, I have argued that the contribution an intersectional analysis can make to feminist legal theory and activism is a positive one, but the burden of ensuring that the contribution remains positive, rests largely with the person using it. This, I feel, is the biggest issue with intersectionality: it is not a fool proof concept.

McCall[28] offers three different approaches to simplify the way intersectionality can be used: anticategorical complexity; intercategorical complexity; intracategorical complexity. These suggestions exemplify exactly what is needed for a positive interaction between intersectionality and feminist legal theory and activism. Users of the intersectional method would have a set of “stringent methodological guidelines concerning where, how, and to what end it could – or should – be used in feminist inquiry.”[29] Similarly, when considering feminist activism, it depends on the individual: will they look at the oppression in front of them through an intersectional lens, and if so, how will they apply this intersectional analysis to the situation? I agree with Van Witteloostuijn’s findings that it is the flexibility of the use of the intersectional lens “that creates endless possibilities for its use.”[30] Intersectionality successfully captures how multiple oppressions are experienced by individuals simultaneously. It also successfully understands the overlaps within and between the different categories of oppression.


Tanvi Wadhwa is a student at University of Kent. You can find her on LinkedIn.


Photo Credits: Pictorial Parade/Agence France Presse

Notes:

[1] Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ [1989] 1989 (1) University of Chicago Legal Forum 139-167

[2] Ibid

[3] Kathy Davis, ‘Intersectionality as buzzword: A sociology of science perspective on what makes a feminist theory successful’ [2008] 9 (1) Feminist Theory

[4] Chandra Talpade Mohanty, Feminism without Borders: Decolonizing Theory, Practicing Solidarity (Duke University Press 2003) 107

[5] Patricia Hill Collins, ‘Toward a New Vision: Race, Class, and Gender as Categories of Analysis and Connection’ [1993] 1 (1) Race, Sex & Class

[6] Crenshaw (n 1)

[7] DeGraffenreid v. GENERAL MOTORS ASSEMBLY DIV., ETC., 413 F. Supp. 142 (E.D. Mo. 1976) (United State Court of Appeal)

[8] Floya Anthias, ‘Intersectional what? Social divisions, intersectionality and levels of analysis’ [2012] 13 (1) Ethnicities 6

[9] Nira Yuval-Davis, ‘Intersectionality and Feminist Politics’ [2006] 13 (3) European Journal of Women’s Studies 201

[10] Hill Collins (n 6)

[11] Deborah King, ‘Multiple Jeopardy, Multiple Consciousness: The Context of a Black Feminist Ideology’ [1988] 14 (1) The University of Chicago Press

[12] Crenshaw (n 1)

[13] Jean Ait Belkhir and Bernice McNair Barnett, ‘Race, Gender and Class Intersectionality’ [2001] 8 (3) Race, Gender & Class

[14] Anthias (n 9)

[15] Amber Ottilie van Witteloostuijn ‘Applying intersectionality as a method’ (Master thesis, Utrecht University 2018)

[16] Anna Carastathis, ‘The Concept of Intersectionality in Feminist Theory’ [2014] 9 (5) Philosophy Compass

[17] Alpa Shah and Jens Lerche, ‘Preface’ in Alpa Shan and others, Ground Down by Growth: Tribe, Caste, Class and Inequality in 21st Century India (Pluto Press 2017)

[18] Jens Lerche and Alpa Shah, ‘Conjugated oppression under contemporary capitalism: class relations, social oppression and agrarian change in India’ [2018] 45 (5-6) Journal of Peasant Studies 927-949

[19] Ibid

[20] Act No. 33 of 1989, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (IN)

[21] Supurna Banerjee and Nandini Ghosh, ‘Introduction Debating Intersectionalities: Challenges for a Methodological Framework’ [2018] 1 (19) South Asia Multidisciplinary Academic Journal

[22] Helen Pluckrose, ‘The Problem with Intersectional Feminism’ (Areo, 15th February) <https://areomagazine.com/2017/02/15/the-problem-with-intersectional-feminism/> accessed 7 March 2019

[23] Toni Williams, Intersectionality analysis in the sentencing of Aboriginal women in Canada. in, Intersectionality and Beyond: Law, Power and the Politics of Location (Taylor & Francis Group 2008)

[24] R. v. Gladue, [1999] 1 S.C.R. 688 (Supreme Court of Canada)

[25] Criminal Code, RSC 1985, c. C – 46. S 718.2 (e) (CA)

[26] Williams (n 23)

[27] Ibid

[28] Leslie Mccall, ‘The Complexity of Intersectionality’ [2005] 30 (3) The University of Chicago Press

[29] Davis (n 3)

[30] Ibid

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