Intersectionality in International Human Rights Law

In an earlier contribution, I analysed the European Court of Human Rights’ (ECtHR) usage of the concept of intersectionality to address claims of multidimensional discrimination. The main conclusion of that post was that intersectionality might be gaining ground in international human rights law. Testing this assumption, in this article, I will examine whether other regional human rights courts and relevant United Nations (UN) treaty bodies use and operationalise intersectionality in their practice.

Some remarks are necessary. Conceptually, I advocate for intersectionality as a methodological tool for explaining how different grounds of discrimination render a person more vulnerable to human rights abuses. This understanding differs from a more traditional approach, under which it is used to stack various discrimination grounds upon each other without disclosing how the dynamics of their interaction aggravate a victim’s situation. Methodologically, this contribution builds on an extensive analysis of the practice of the Committee on the Elimination of All Forms of Discrimination against Women (CtEDAW), the Committee on the Elimination of All Forms of Discrimination (CERD), the Committee on the Rights of Persons with Disabilities (CtRPD), the African Court on Human and People’s Rights (ACtHPR), and the Inter-American Court of Human Rights (IACtHR).

Intersectionality in the CtEDAW’s Practice

At first, the CtEDAW’s practice did not include intersectionality as a tool for analysing individual complaints alleging discrimination based on more than one ground. The most problematic example from its early days is the 2004 A.S. v. Hungary decision, where the Committee failed to acknowledge the full extent of a racially motivated effort to decrease birth rates in Roma communities, which disproportionately affected Roma women. A.S. was represented by the European Roma Rights Centre, an NGO that would later represent almost all applicants in the Slovak Roma women cases before the ECtHR and emphasise the intersectional nature of the allegedly discriminatory policies. Despite the applicant’s insistence on her ‘extremely vulnerable situation’ as a woman from a marginalised social group, the Committee did not pay attention to this aspect of her claim. The outcome was even more difficult to comprehend, considering that by the time this decision was issued, there were multiple reports produced by international organisations about racial discrimination against Roma women. As academics have pointed out, none of the recommendations issued by the Committee in that case, despite sufficient empirical evidence of a widespread discriminatory policy against Roma women, were aimed at rectifying their specific situation.

Although the post-A.S. practice of this Committee includes several other decisions where one could argue that an intersectional approach could have been used, some positive developments occurred in 2010. The CtEDAW issued General Recommendation No. 28, in which intersectionality was described as ‘a basic concept for understanding the scope of the general obligations of States parties’. The Committee further stated that States must recognise intersectional forms of discrimination and act towards their elimination, as their victims often represent the most vulnerable categories of population. Despite lacking a binding effect, this recommendation explains the role of intersectionality in anti-discrimination legal frameworks worldwide. Notably, its drafters used the binding verb ‘must’ and tied intersectionality to the scope of States’ obligations under the CEDAW, indicating that the members of the Committee viewed it as an essential tool for analysing related claims.

Following this change, in its 2011 decision in Da Silva Pimentel v. Brazil, the Committee established that the failure of Brazilian authorities to ensure appropriate health care for the applicant’s daughter, which eventually resulted in her death, was a form of discrimination based on sex, socio-economic position, and ethnicity simultaneously. A close reading of the decision suggests that the CtEDAW’s analysis was based on the traditional understanding of intersectionality, as the Committee merely stated that the applicant’s daughter ‘suffered from multiple discrimination, being a woman of African descent and on the basis of her socio-economic background’. The main issue with this wording is that it makes it difficult to understand whether the CtEDAW, instead of referencing layers of discrimination, duly considered how the deceased person’s position as a (1) woman (2) of African descent (3) coming from a marginalised social background rendered her more vulnerable to the state policy of negligence in the health care system.

Thus, this reasoning should better be seen as an initial step in the direction of future recognition of the intersectional approach. Such a departure from a blatant negation of intersectionality (as in A.S. v. Hungary) in favour of its implicit acknowledgement is important both for the CtEDAW and for the international doctrine, primarily because it constitutes one of the earlier authoritative statements openly accepting intersectionality. Additionally, the more recent practice of the CtEDAW has moved towards explicitly operationalising intersectionality as a methodological tool for analysing discrimination claims. In more recent decisions (R.P.B. v. the Philippines, G.H. v. Hungary, and S.B. and M.B. v. North Macedonia), one can see that the Committee adopted an elaborate intersectional approach, focusing on explaining how intersecting grounds for discrimination made applicants more vulnerable than if they were discriminated against based solely on one ground. Furthermore, since 2020, its decisions call upon States to develop and effectively implement strategies to address instances of intersectional discrimination, regardless of the alleged grounds thereof.

Having started from a peculiar position, whereby the CtEDAW effectively rejected the phenomenon of intersectional discrimination, the Committee rectified the situation by explicitly adopting intersectionality as a methodological tool for analysing individual complaints and a theoretical framework for assessing State parties’ compliance with their obligations under the CEDAW. The pace with which intersectionality has gained ground in the CtEDAW’s approach is commendable, and the most recent developments in its practice align with the version of intersectionality for which this contribution advocates.

The CtERD and the CtRPD’s Engagement with Intersectionality

Compared to the all-encompassing understanding of discrimination under the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Elimination of Racial Discrimination (CERD) is inherently limited by its exclusive focus on racially motivated disenfranchisement. In its practice, the respective CtERD used intersectionality as a means of overcoming this limitation to extend its jurisdiction ratione materiae beyond the five grounds prescribed in Article 1(1) CERD: race, colour, descent, national, or ethnic origin. For instance,     General Recommendations No. 30, 32, and 36 leave no doubt that States’ obligations under the CERD have to be interpreted in light of the potentially intersectional nature of racially motivated discrimination. This approach aligns with empirical sociological research demonstrating that intersectionality is the most adequate tool to approach a vast majority of instances of discrimination covered by the CERD, especially when it is aimed at representatives of various minorities.

In particular, the Committee clarified that national policies aimed at combating racial discrimination should be informed by a gender-based perspective and take into account the status and socio-economic conditions in which different groups of the population find themselves. This logic resembles the context-sensitive notion of intersectionality, which various scholars proposed, which seeks to promote an intersectional analysis that would go beyond a mere acknowledgement of the existence of intersecting bases for discrimination. Despite this significant theoretical emphasis on intersectionality, the jurisprudential database of the CtERD does not feature communications that would be indicative of the practical application of this approach. Given the scarcity of this database (75 decisions on communications, of which over a half address discrimination), one can assume that the Committee has simply not had an opportunity to entertain a communication alleging discrimination based on multiple grounds.

In terms of theoretical relevance for tackling intersectional discrimination, the Convention on the Rights of People with Disabilities (CRPD) refers to intersectional ideas immediately in its text. Its preamble, for instance, acknowledges that ‘multiple or aggravated forms of discrimination’ make the lives of people with disabilities even more difficult and that ‘women and girls with disabilities are often at greater risk’. Directly relevant for the scope of this analysis is Article 6(1) CRPD, which recognises that ‘women and girls with disabilities are subject to multiple discrimination’. Moreover, this body’s practice, supplemented by authoritative interpretations of the scope of State parties’ obligations under the Convention, has developed an intersectional approach emphasising how the interplay between gender and disability creates an environment conducive to discrimination.

As opposed to the approaches of the CtEDAW and the CtERD, where external actors advocated for incorporating intersectionality into already established legal systems, such an approach was part of the CRPD’s framework since its inception. These differences can be explained by the CRPD’s status as the newest UN human rights treaty. When it was adopted in 2006, intersectionality had already developed into a methodological tool. It is thus not surprising that the references to ‘additional disadvantage[s] due to discrimination on intersecting grounds’ can be found in the CRPD’s preparatory works. Despite this body’s and its respective treaty’s inherent orientation towards intersectionality, academics have concluded that even this approach, however novel and progressive, fails to account for intersectionality’s full potential.

Intersectionality in the Jurisprudence of Other Regional Human Rights Courts

Given that the two non-European human rights courts have faced more fierce opposition to their legitimacy over the years by non-democratic governments, they often searched for innovative solutions to remain effective. Among multiple repercussions of this historical path, several scholars noted that it led both to be increasingly receptive to novel concepts, a conclusion that we can assume to be extendable to their adoption and use of intersectionality. A brief analysis of the ACtHPR’s case law database suggests that the Arusha Court has not yet had an opportunity to express its views on the matter of multidimensional discrimination from an intersectional point of view. On the other hand, this approach has found recognition in the jurisprudence of the Inter-American Court.

Its 2015 judgment in Gonzales Lluy et al. v. Ecuador represents a golden example of an explicit acknowledgement of intersectionality as a methodological tool to analyse claims of multidimensional discrimination, which would, in a binding ruling, emphasise how the dynamics of intertwining discrimination bases led to the applicant’s increased vulnerability. The Court started by mentioning that the applicant was at risk of discrimination due to her vulnerability ‘as a minor, a female, a person living in poverty, and a person living with HIV’. This approach closely resembles that of the ECtHR in using vulnerability to introduce intersectionality. However, instead of limiting its judicial examination of the applicant’s situation to her vulnerability, the IACtHR conducted a very detailed analysis of how each of the above-mentioned grounds of discrimination disadvantaged her. In the best traditions of intersectionality scholarship, the inter-American judges explained the mechanism of the plaintiff’s disenfranchisement against the overall societal background of the stigmatisation of women with HIV. This analysis concluded that her suffering ‘arose from a specific form of discrimination that resulted from the intersection of those factors; in other words, if one of those factors had not existed, the discrimination would have been different’. In his concurring opinion, Judge Eduardo Ferrer Mac-Gregor Poisot clarified the general scope of the institution’s approach to such instances of discrimination: ‘[n]one of the forms of discrimination assessed independently would explain the particularity and specificity of the harm suffered in the intersectional experience’. This logic informed subsequent applications to the IACtHR, as the list of the pending cases before the IACtHR reveals that intersectional discrimination is increasingly argued as the ground of violation of one’s right to be free from discrimination.

From an institutional perspective, the way in which the IACtHR incorporated intersectionality in its doctrine is the opposite of what one can observe in Strasbourg. Prior to its explicit endorsement by the IACtHR, intersectionality did not feature in major political discussions of the Organisation of American States (OAS). In fact, it was not until the Gonzales Lluy verdict that the OAS’ experts and executive and political bodies started paying attention to intersectionality in the development of their anti-discrimination standards. On the contrary, numerous academic, civil society, and political initiatives keep emanating from the Council of Europe and its member States to advocate for intersectional examination of multidimensional discrimination claims.

Conclusion

Considering that in many aspects the Strasbourg Court has already referred to the practice of its inter-American sister and UN treaty bodies, the sophisticated analyses conducted in the above cases may serve as a solid starting point for the ECtHR to champion intersectional examination of multidimensional discrimination claims. Nevertheless, as of now, this tour d’horizon only further evidences the (at times) excessively conservative orientation of the ECtHR, which, in turn, might serve as an explanation for its unwillingness to include intersectionality in its analyses. Despite such an undesirable status quo, the present analysis of other bodies’ paths to adopting intersectionality suggests that there might be a solution to address this aspect of the Strasbourg Court’s hesitation problem. Given that the text of the ECHR’s non-discrimination provisions does not, stricto sensu, preclude an intersectional approach, this situation can be solved by resorting to interpretation. A well-thought application of the principle of systemic integration, taking the reasoning of UN treaty bodies and the IACtHR into consideration, would open the door for intersectionality in Strasbourg even wider.