Tackling intersectional discrimination in EU law
On 25 May 2023 Iyiola Solanke, Jacques Delors Professor of European Union Law at the University of Oxford and a Fellow of Somerville College delivered a lecture titled “Centering Black women in EU anti-discrimination law” as part of the CIVICA Research Excellence Tours at the Hertie School. This marked a return for the Professor to Berlin and the Hertie School, as she was one of the inaugural fellows at the Berliner Kolleg, founded by the Hertie Stiftung in 2004, after spending a year in Germany as a DAAD scholar.
The lecture was followed by a discussion that included Awet Tesfaiesus, member of the German Bundestag (Green Party), its first Black woman member; Elisabeth Kaneza, a legal and political scholar at The German Centre for Integration and Migration Research (DeZIM) and Mark Dawson, Professor of European law and governance at the Hertie School.
The discussion was chaired by Cathryn Costello, Professor of fundamental rights at the Hertie School and co-director of its Centre for Fundamental Rights.
Approaching discrimination through an intersectional lens in Europe
Prof. Solanke opened her talk by contrasting the concepts of ‘intersectionality’, ‘multiple discrimination’ and ‘intersectional discrimination’. She noted that Professor Kimberlé Crenshaw’s ground-breaking contribution in 2019 was to capture the distinctiveness of intersectional discrimination. While multiple discrimination, as used in law, refers to a scenario where an individual facing both race discrimination and gender discrimination must establish the existence of each distinct form of discrimination separately, intersectional discrimination emphasises the synergy between different characteristics protected under anti-discrimination law. A Black woman’s experience of discrimination is not the sum of a white woman and a Black man’s experience of discrimination. Rather, the social meanings given to these attributes intersect. “Intersectional discrimination seeks to highlight the structural embeddedness of discrimination” she emphasised. “What’s problematic, [in Europe] gender overshadows race. This was inevitable because across mainland Europe, there is still a reluctance to take race seriously” explains Professor Solanke. The need to address this issue ultimately led to her choosing to focus her work on intersectional discrimination.
Elisabeth Kaneza added, “if we were to ask if women who are Black are protected against discrimination, the answer would be ‘yes’. If we were to ask if a Black person who happens to be a woman is protected against discrimination, the answer would also be ‘yes’. If we were to ask if Black women as subjects are protected against intersectional discrimination, I’m afraid that the answer will be ‘not yet’.”
Without recognition of race, intersectional discrimination fails to protect the group for which it was created, says Professor Solanke. In various countries across Europe, including Germany, legislators are working to remove the word “race” from law. Professor Solanke argued that, if successful, this would create a situation in which Black women and individuals of colour no longer have the necessary vocabulary to talk about their experiences, silencing their struggles in law and politics. “We would have racism without race,” Elisabeth Kaneza pointed out.
MdB Awet Tesfaiesus, member of the German Parliament’s Legal Committee, offered her unique insights into the current debate to remove the term “Rasse” from the German constitution. She explained that the term “Rasse” in German had different connotations than the English term “race”, being associated with biological racism. However, the discussion also questions whether deleting “Rasse” from Art. 3 of the German Basic Law to replace it with rassistisch (racist) could further sideline concerns about racism in Germany.
For Professor Solanke, it is important to ensure that the qualitative difference made by intersectional discrimination is recognised in equality law. Her goal moving forward is to stress the intellectual legacy within which intersectional discrimination is anchored and to highlight the intellectual heritage of enslaved Black women and Black women post-slavery.
Re-centring Black women in anti-discrimination law
In her lecture, Professor Solanke offered an answer to the question: How do we re-centre Black women in intersectional discrimination and EU law? Among other steps, she suggests redesigning the idea of anti-discrimination law around her theory of “discrimination as stigma”. Traditionally, categories of discrimination that are banned in legal spaces are characteristics that society tends to see as “cannot be changed” or “immutable”, explains Professor Solanke. This is problematic and limiting. A focus on stigma, on the other hand, emphasises the meaning given to the attribute rather than the attribute itself. Focussing on qualitative experiences allows us to think about different ways in which stigmas exist and operate. Multiple attributes can create a stigma, which would allow for a better definition of discrimination against Black women than adding together the categories of ‘Black’ and ‘woman’. This way, anti-discrimination law can incorporate the synergy of different characteristics.
Furthermore, Professor Solanke suggests taking a broader approach to anti-discrimination law. Rather than thinking of it as individuals seeking justice for themselves in court, a process that is draining and often a financial burden, we can think of discrimination being more like a public health issue. Therefore, all of society has a responsibility to tackle the issue, and it can be tackled from multiple angles.
By re-positioning and taking a broader approach to anti-discrimination law, we can remove the burden from Black women and share the responsibility for ending discrimination, an approach that ultimately would be more effective.
Her aspirations, however, go beyond the discrimination experienced by Black women. “By centring Black women, my hope is to improve the vision and impact of anti-discrimination law to make it more effective in securing substantive equality for everyone.”
This event was part of the CIVICA Research Excellence Tours which has received funding from the European Union’s Horizon 2020 research and innovation programme under grant agreement No. 101017201. It was part of the Distinguished Lectures event series hosted by the Centre for Fundamental Rights and was co-hosted with the Hertie School's Jacques Delors Centre.
Watch the full recording of the event here
Written by Dania Abu-Sharkh (CIVICA Communications team).
Photo credits: Mosch (Hertie School).