WHY INTERSECTIONALITY MATTERS IN LAW
Intersectional analysis asserts that race, class, sexuality, age, ability, and gender are interlocking yet independent sites of possible oppression that are simultaneously experienced. A lack of intersectionality continues to minimize the experiences of marginalized folk and creates injustices within the legal system. The concept of intersectionality should be crucial within law as it allows us to examine how our multiple identities simultaneously create our whole selves. Hence, when working with certain populations, it is important to be mindful in understanding how dominant culture impacts their lives based on their identities.
Time and time again we have been witnessing how law has failed in addressing cases regarding racism. Some of these cases include police brutality, where there has been a pattern of non-indictments against white police officers. We have seen this with the deaths of Eric Garner, Michael Brown, Sandra Bland, and countless others. We can see with cases of sexual assault and domestic violence against women of colour that race is not even discussed when examining power dynamics. Kimberlé Crenshaw, a legal scholar who is specifically credited for raising the importance of intersectionality in law, discusses how women of colour are often reluctant to call the police or be involved in the legal system when they experience violence. They are reluctant due to their private lives being scrutinized and due to a control of the police force and legal system that is often hostile.1 In many cases, individual cases of violence are also taken as a “cultural” or a “community” problem.
Law is still rooted in patriarchal and white supremacist values. For example, when it comes to cases of rape, women are still seen as property and blamed for the violence that has happened to them. Crenshaw discusses how women are put on trial to see if “they are innocent victims [or were] asking for it.”2In many cases, a woman’s sexual history is also examined when it comes to cases regarding sexual assault even though this is not required according to the Criminal Code. This creates an environment of victim blaming, which not only impacts the field of law, but also the society as a whole. Women of colour are also oftentimes portrayed as more sexual beings. By intersecting race with norms of women’s sexuality, we can see how stereotypes and misconceptions about women of colour are framed within the law.3 This is just one example of how intersectionality matters in law.
Although this article addresses the lack of intersectionality in law, I think it is also important to address why intersectionality is not talked about as much by legal professionals. A big part of this falls on law schools. We learn law from a Western perspective, where the majority of the authors that we read are white males. Intersectionality needs to be taught at law schools through works by people of colour, including Indigenous people. As intersectionality is a term coined by a black woman based on black women’s experiences, we should be learning texts that are by them versus a white male’s interpretation of what intersectionality looks like. Learning about intersectionality will not only strengthen a student’s understanding of law, but it will also provide law students with an idea of how their work impacts different populations and how they can advocate for their clients better. For example, addressing intersectionality would mean having a discussion on how law often fails and how that impacts people from marginalized communities. Further, in classrooms, addressing intersectionality would mean that when exploring concepts of Islamic law, discussions on terrorism do not take up most of the lecture. It would be important to be aware of how these discussions impact Muslim students and students of colour, as well as how people understand Islamic law.
Another example would be, when talking about Aboriginal peoples and constitutional law, Aboriginal peoples’ experiences and autonomy should be discussed rather than the current practice of simply analyzing which section of the Constitution their claims fall under. Looking at different perspectives from the right sources would challenge us to think critically and examine situations through different lenses. It would also align with law schools’ goals in terms of access to justice.
One reason for the lack of intersectionality is that many lawyers do not have an awareness of this concept. Since it is not discussed in their education, people do not question many of the injustices that happen or how these injustices impact those around them. For example, in 2014, an article published in the Toronto Star featured 10 citizens who expressed their experiences of the legal system. They were unable to access lawyers, unable to afford legal services, and many had to represent themselves.4 Many of the citizens who addressed these issues were racialized individuals living in poverty. Taking an intersectional approach in this situation would be really important in understanding their experiences and how your work affects them. Intersectionality should be part of the groundwork in legal education, so that students graduating will be more reflective and aware of their actions in the future as practice lawyers working with diverse clients.
(1) Kimberlé Crenshaw, “Mapping the margins: Intersectionality, Identity Politics, and Violence against Women of Colour” (1993) 43:1241 Stan L Rev 1253.
(2) Ibid at 1246.
(4) Carol Goar, “Stinging Message to Canada’s Judges”, Toronto Star (21 September 2014), online <http://www.thestar.com/opinion/commentary/2014/09/21/stinging_message_to_canadas_lawyers_goar.html>