So You Want to Incorporate Intersectionality Into Your Legal Practice? A Primer

Posted on 28/03/2024 by Associate Professor Becky Batagol

By Thomas Ponissi
22 March 2024

This post is the second in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2023. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

Disclaimer: this piece contains content that some readers may find distressing.

Beyond ‘either/or’

The term ‘intersectionality’ has been co-opted in so many ways — in left-wing memes, in right-wing culture wars, in digital shopping carts — that you’d be forgiven for forgetting what it actually means. Ironic, considering that the concept was first coined by Kimberlé Crenshaw, a Black woman, and you could write a thesis on the endless appropriation, and misuse, of concepts and terminology that originated in Black culture.

So, what is intersectionality? It is the idea that a person’s lived experience is influenced by the various identities that they inhabit (for example, their socio-economic status, or ethnic background), as well as the way that these identities overlap and/or diverge in unique ways. The result may be privilege in certain contexts and/or “compounded disadvantage” in others. I use ‘and/or’ very deliberately because intersectionality challenges binary thinking; its application must be fluid and contextual, tailored to the unique facts of each situation.

Crenshaw, an American legal scholar, developed the idea in response to DeGraffenreid v. General Motors, an unsuccessful 1976 discrimination claim lodged by several Black women who had all been denied work at a local factory. The US District Court for the Eastern District of Missouri found that there had been no racial discrimination, because there were Black men employed at the factory; the Court also found that there had been no sex discrimination, because there were white women employed at the factory. According to District Judge Wanglin, the claimants had to pick one part of their identity: their gender or their race. To lodge a claim on the basis of both attributes would supposedly constitute an unfair “super-remedy” — even though it was the intersection of those two attributes that characterised the discrimination on the facts.

Thankfully, we are growing in our appreciation of the complexities of identity and discrimination; some governments, and even courts, are beginning to listen. However, we still have a long way to go. Only last year, Australian Senator Lidia Thorpe alleged that she had experienced sexual harassment in the Commonwealth Parliament — and that “it wasn’t until a white woman stood up” with a similar allegation “that the media took notice”. Clearly, an intersectional approach — and a reckoning with implicit bias — remains indispensable. That’s where your legal practice comes in.

“We are growing in our appreciation of the complexities of identity and discrimination.”

Image source: Alice (six_impossible_things), Unsplash

Turning theory into practice

Researchers have found that intersectionality “has taken root” in disciplines like education and psychology. Why not in law, though? Perhaps this is due to the conservative, ‘black-letter’ approach to law — and to law reform — that some in the industry still follow.

Throughout my discussion, I will balance the rewards of an intersectional approach to legal practice with the risks. It is important to remember that no one practitioner or firm can resolve centuries of structural oppression; it is neither your responsibility nor within your capacity. However, there are still tangible steps that can be taken to begin to “restructure the distribution of opportunity and “practise law as a healing profession”.

1. Be aware

Legal practitioners should, as far as practicable, have “historical and contextual understanding” of the communities they work with. This is particularly important when practitioners do not share their clients’ lived experience. Criminal defence lawyer Russell Marks explores this tension at length in his book Black Lives, White Law. Marks, a white man based in South Australia, works mostly with Aboriginal and Torres Strait Islander persons, including in remote Northern Territory. Marks is mindful of his status as an outsider who interacts with the criminal legal system in a substantively different way.

For intersectionality to be meaningful in practice, lawyers must understand what it actually entails. This might be achieved through cultural competency training or other professional development. It is also beneficial to adopt a holistic, non-exhaustive approach to the identity markers relevant to an intersectionality analysis. Though the four attributes covered by federal anti-discrimination legislation — age, disability, race, and sex (or, gender) — are often front of mind, there is no ‘ceiling’ on what might be considered. In fact, thinking outside the box will enhance your practice’s incorporation of intersectionality.

What is your client’s level of educational attainment? Do they live near affordable public transport? How proficient are they in speaking English (or the official language of your jurisdiction)? Were either of their parents ever incarcerated? These are just some of the questions you might consider asking to help gain a deeper understanding of the circumstances that have brought a person to you.

2. Be class-conscious

Marxist scholars have critiqued intersectionality for placing “other forms of social differences […] centre stage” when analysing oppression, ignoring class not just as another ‘social difference’ that affects lived experience, but as the overarching factor that exacerbates other forms of marginalisation. Indeed, one review of demographic data collection in intersectional studies found that 77% of samples measured sex and/or gender, and 72% measured race and/or ethnicity, but only 33% measured socioeconomic status. Here, we can see the lack of consideration given to class, even when practitioners explicitly intend to be intersectional.

However, the problem isn’t intersectionality itself but its application; legal practitioners can mitigate this by remaining vigilant. Access to justice for poor persons is already obstructed by the prohibitive cost of legal advice and representation. A lack of class-consciousness can also have the effect of excluding prospective legal practitioners; many demands of professional development — for instance, unpaid internships — are near-impossible for poorer people. Affirmative action programs that facilitate participation, through initiatives such as mentoring or financial aid, are essential to achieving socio-economic intersectionality.

3. Be strategic

There are areas of law where intersectionality is fundamental. For instance, in the criminal legal system, a person’s indigeneity and/or ethnicity may, due to structural racism, make them more vulnerable to harsher policing and/or judicial sanction. Accordingly, an intersectional approach is necessary in order to identify any exceptional circumstances that might be relevant to bail or sentencing.

There will also, of course, be disputes where an intersectional approach is less useful; for example, in corporate contracting. There may even be socio-emotionally charged disputes where intersectionality is not the most appropriate framework, and the focus should be on, for example, parties’ relationships instead of identities. However, this doesn’t mean that intersectionality is unnecessary as a rule, but merely that it should always be deployed deliberately, with careful regard for the specific facts at hand.

4. Be structured and sensitive

Taking concrete organisational steps towards intersectionality ensures that it is “more than theory”. Intersectionality should be an active practice, embedded from “the front-end (point of entry) of the justice system”. Triage processes can facilitate this via the collection of extended baseline data about clients, in order to better understand the totality of their identities — and to better cater to their legal needs.

Incorporating intersectionality is “a process of continuous improvement”. We all will make mistakes along the way. However, safeguards can be introduced to mitigate the harm caused by these errors.

Collecting data on identity characteristics, or focusing on a person’s experience of discrimination or suffering, can indirectly “reinforce ideas of inherent differences […] rather than point towards actionable solutions”. Clients need to understand why this information is being collected (ie, to enhance their legal advice or representation); otherwise, they may feel that they have been further victimised by the process.

Practitioners should work collaboratively with clients, as well as listen to their client’s interests and concerns, rather than assuming that their clients feel burdened by their identities.

The intersectional processes that I have advocated may unintentionally ‘out’ people who do not wish to discuss certain parts of their life; for example, women of faith whose religions are considered by some as sexist, but which the women do not want to feel pressured into renouncing. This phenomenon is known as ambivalence, in which overlapping identity characteristics foster “mixed and contradictory feelings” in the individual.

These dynamics must be navigated sensitively. Legal practitioners might adopt a multidisciplinary approach and work with other professionals, like social workers. The integration of legal services with other professions, like health, is a growing feature of public policy. Such a development can be mirrored in private practice, too.

Intersectionality may be the way of the future, but there is no reason not to begin incorporating it now.

5. Be resilient

Maintaining an intersectional approach may provoke an adverse reaction in some clients, or even coworkers; certainly, not everyone is a fan of the concept.

However, it is a matter of persistence and tact — of developing a vocabulary to either explain intersectional concepts in a manner that is accessible to skeptics, or alternately embedding it within systems so seamlessly that it is not noticeable.

These are long-term initiatives, not ‘quick wins’, but this should not dissuade us from doing the hard work. We will be better lawyers because of it.

About Thomas Ponissi
Thomas Ponissi (he/they) is a Laws/Global Studies student, specialising in Human Rights. Thomas is currently on exchange and completing his final semester at Boston College, USA. He has worked as a paralegal and an administrator in community legal centres.

Family Dispute Resolution is not serving the needs of all Australians

Posted on 13/03/2024 by Associate Professor Becky Batagol

By Jayarupi Pahala Vithana

13 March 2024

This post is the first in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2023. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

What is Family Dispute Resolution?

Family dispute resolution (or ‘FDR’) is a process in which an accredited practitioner helps families to resolve disputes arising from separation or divorce in a non-judicial setting.

An FDR practitioner will help families to create parenting plans setting out future arrangements. The practitioner will help parties to identify the issues they need to resolve and encourage them to consider each other’s points of view, with a focus on arriving at practical solutions that protect children’s best interests. FDR offers families a great degree of flexibility to adjust procedures and outcomes to suit their needs. This process is especially appropriate for the personal nature of family disputes, which impact the welfare of children and concern intimate relationships.

Image: Ketut Subiyanto, Pexels Stock Image

How well does FDR achieve its ideal?

Ideally, FDR should lead to effective and sustainable agreements. For FDR to provide effective justice, it needs to respond to the needs of all Australian families.

However, Australians from culturally and linguistically diverse (‘CALD’) backgrounds are substantially under-represented in accessing FDR services, according to research conducted by Dr Susan Armstrong of Western Sydney University.

Professor Lola Akin Ojelabi, RMIT, argues that CALD families face numerous barriers to accessing FDR services: a lack of awareness, issues with language, religion, and social norms, or concerns that FDR is tailored for a specific type of ‘Australian’ family and will not suit their needs.

The Evaluation of the 2006 Family Law Reforms showed that FDR services fall short in their responsiveness to the needs of CALD families. That research showed that professionals in the family relationship sector do not feel confident providing services to CALD and Indigenous families. The evaluation also noted that though FDR providers are required to be accredited, their training does not require cultural competency.

Re-Designing Family Dispute Resolution

FDR providers and decision-makers can re-design their processes to be more accessible and effective. Here are some key changes that will improve the quality of justice provided to CALD families.

Work in partnership with CALD and First Nations groups.

Family Dispute Resolution centres should partner with organisations that work with CALD communities. This could involve forging relationships with cultural organisations or employing community groups and elders as cultural advisors. This will promote the visibility of FDR services and the involvement of members of specific cultural groups will help bridge the gap in language and cultural norms, reducing the reluctance of CALD families to access FDR.

Partnered organisations can be involved in the process of reviewing and improving FDR processes to be culturally appropriate. For example, Victoria Legal Aid partners with Aboriginal-controlled services such as Djirra and the Victorian Aboriginal Legal Service in implementing their frameworks for FDR for Aboriginal and Torres Strait Islander families.

Support FDR Practitioners to ensure their practice is culturally sensitive and self-reflective.

It’s impossible for all practitioners to be knowledgeable about every culture and language, or to be fully across the complex social, cultural, and religious factors that influence a family. What is more important than an encyclopaedic knowledge is the attitude that FDR practitioners bring in communicating with clients of different backgrounds to their own.

FDR practitioners should undertake training on the importance of reflecting on the ways that their own cultural contexts influence their values, biases, and identities. According to Dr Susan Armstrong, a self-awareness of the influence of one’s own cultural framework and a genuine desire to be sensitive in connecting with other people on an equal footing will allow FDR practitioners to create a welcoming and non-judgemental space. Education is necessary to eliminate prejudices or unknown biases. For example, a common bias is the belief that speakers of English as an additional language are less intelligent because of their accented English. Families will feel more comfortable talking to a practitioner who does not speak to them in a patronising tone, and who does not become impatient when they cannot understand an unfamiliar accent.

Mandatory cultural competency training as part of FDR practitioner accreditation.

A person’s cultural background affects the way their family functions and their priorities in resolving disputes.

Family units and relationships look very different in some cultures compared to others. Professors Ghena Krayem (University of Sydney) and Farrah Ahmed (University of Melbourne) note that for some CALD communities, it is important that respected older family members or community leaders are approached first for guidance in helping resolve family disputes. Their involvement in this process can help provide an affirming experience for the parties. In other cultures, divorce is considered deeply shameful. Parties may want to limit the involvement of extended family in future childcare arrangements or may need to unpack their own feelings of guilt or shame before coming to workable solutions.

Furthermore, red flags that signal family violence look different for different cultures. For example, in South Asian communities, issues of dowry and dowry abuse may be an avenue for financial control or abuse.

A culturally competent FDR practitioner will be aware of these differences when mediating discussions between parties.

Culturally responsive FDR can assist FDR practitioners to ensure that any agreed arrangements protect children’s right to enjoy their culture.

Employ a culturally diverse staff.

Multicultural or multilingual FDR practitioners and staff can bring an ‘enormous amount of knowledge and experience’ about their communities, according to Armstrong. Clients might find it easier to build rapport and trust if a practitioner speaks their language.

However, some clients might feel uncomfortable sharing personal matters in front of someone who is from the same background, especially if they are concerned about the person being a part of the same circles as them, or being a non-neutral participant due to cultural influences.

Employing multicultural staff does not necessarily mean that a practice is culturally competent. Even practitioners from diverse cultural/ linguistic backgrounds themselves should be supported to reflect on the influence of their own cultural belief system on their practice.

Formalise processes to ensure a consistent approach.

Although FDR practitioners currently may respond to families’ cultural differences on an ad hoc and case-by-case basis, FDR centres should formalise a culturally responsive approach in a comprehensive, strategic and holistic way.

Screening and intake tools can be adapted to accommodate cultural and linguistic differences so that families are supported from their first interaction with FDR. Formal protocols can be put in place to require FDR practitioners to make culture a visible part of the discussion process.

Armstrong argues that FDRP’s should continually review and assess how they are providing FDR services to CALD families.

FDRPs can ensure referral practices effectively identify and assess cultural contexts, preferences and needs.

The challenge for culturally responsive practitioners: preventing exploitation of culture.

There are legal limits to the ability of FDR practitioners to accommodate the practices, values, and norms of different cultures. FDR practitioners should be clear to participants about the limits of the process and be wary of avoiding falling into traps of cultural relativism that compromise fairness and procedural justice.

Akin Ojelabi warns that vulture can be exploited: FDR practitioners should keep an eye out for the way that cultural dynamics affect the balance of power between parties, and should be careful not to allow their culturally responsive approach to validate giving one party more power over another. For example, women from Iraqi and Lebanese communities have perceived that women are mostly blamed in their communities for family breakups, and their opinions are not always accepted in their traditional culture. However, Iraqi men have expressed that they are treated badly under Australian law. In this example, men may be wary of mainstream Australian FDR practices if they provide an equal standing for a woman’s opinion.

Culture should not be used as a reason to compromise the right to a fair dispute resolution process in such situations.

About Jayarupi Pahala Vithana

My name is Jayarupi and I am a final year Law/Arts student at Monash University, majoring in Human Rights. I am currently working as a paralegal in commercial law and completing a professional practice placement at the South-East Monash Legal Service. I am passionate about improving access to justice for low socio-economic groups and culturally and linguistically diverse Australians. I have had the opportunity during my placement to see the importance of having a culturally responsive approach in legal practice and the difference it makes for clients of diverse backgrounds.