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.
The Australian Dispute Resolution Research Network 