Investigating Issues of Intersectionality

The notion of “intersectionality” has become a popular buzzword in pop culture and social activist groups. It describes the notion that various grounds of discrimination, such as gender, race, sexual orientation, religion, disability, etc., can affect and interact with each other in overlapping and complex ways.

First coined within the feminist movement in the early 80’s to help illustrate the exclusion of racialized women from many feminist initiatives, it helped illustrate how advocacy on behalf of a discriminated or marginalized group can also inadvertently create its own patterns of oppression and exclusion, not only towards other discriminated groups, but within the advocating group itself when ignoring its own internal complexities and power dynamics.

Despite its widespread use now in academic literature and training in disciplines such as social work, it has only slowly gained use within the legal community and in judicial decisions, and can be primarily found in federal immigration cases and human rights decisions. One of the most important decisions in advancing this notion was the 2005 British Columbia Human Rights Tribunal decision in Radek v. Henderson Development (Canada) Ltd. and Securiguard Services Ltd. (No. 3), where the Tribunal Member stated,

[464] The interrelationship between a number of intersecting grounds of discrimination is sometimes described as “intersectionality”. The concept of intersectionality has been discussed in a number of recent decisions, including: Morrison v. Motsewetsho (2003), 48 C.H.R.R. D/51 (Ont. H.R.T.), Comeau v. Cote,[2003] BCHRT 32, and Baylis-Flannery v. DeWilde (No. 2) (2003), 48 C.H.R.R. D/197 (Ont. H.R.T.). As described in Baylis-Flannery, “[a]n intersectional analysis of discrimination is a fact-driven exercise that assesses the disparate relevancy and impact of the possibility of compound discrimination”: at para. 143. Speaking there in a case of sexual harassment against against a Black woman, the Tribunal stated that an awareness of the effect of compound discrimination is necessary in order to avoid:

reliance on a single axis analysis where multiple grounds of discrimination are found, [which] tends to minimize or even obliterate the impact of racial discrimination on women of colour who have been discriminated against on other grounds, rather than recognize the possibility of the compound discrimination that may have occurred. (at para. 144)

[465] The same could be said in the present case with respect to race, colour, ancestry and disability. While the primary focus of Ms. Radek’s individual complaint is her race, colour and ancestry, the analysis of those grounds must not ignore her disability, and the possibility of the compound discrimination which may have occurred.

This case and the approach towards the interconnected and interrelated nature of discrimination was also adopted by the Federal Court of Appeal in 2012 in Turner v. Canada (Attorney General). Updated guidelines and policies reflecting this understanding have more recently been the basis for judicial review of decisions under the Immigration and Refugee Protection Act, as the Supreme Court has recognized in Kanthasamy v. Canada (Citizenship and Immigration) they can be useful in determining what constitutes a reasonable interpretation of the Act.

Perhaps given the relatively short history and limited use of the term intersectionality, it’s not surprising that it is also frequently misunderstood and misused even by lawyers working in this area, even when claiming competence in equity issues. Intersectionality is not simply the sheer aggregate of discriminated grounds to help identify the most discriminated group. Identifying a single individual who shares multiple grounds of discrimination does not provide a definitive voice or analysis of all of the various institutional or systemic barriers that may face other experience.

The oversimplification of intersectionality is possibly best understood when the mental heuristics that underpin the discriminatory process themselves are explored. Mental shortcuts are expedient and convenient, and for those outside of the discriminated group who do not understand the complexities first-hand, it’s far easier to claim that discrimination is being addressed through broad and overarching policies and approaches that gloss over important nuances.

How this plays out in our understanding of discrimination is particularly important to recognize. Although Black and Indigenous women do face a disproportionate affect of injustice when dealing with law enforcement and the courts, the men in these same communities face significantly more of this discriminatory treatment. Racialized members of the gay community may face worse discrimination within a racialized group due to their sexual orientation than they do within society at large. Individuals who are racialized but adhere to a dominant religious group are typically far more likely to be accepted and championed by the majority than racialized religious minorities would be. A racialized person may actually face less discrimination if readily perceived as identifiably gay, because they appear to be less of a threat.

Intersectionality is a function of our culture, history, and power dynamics, and plays itself out very differently between different parts of the world, and even different parts of the same country. One of the most difficult acknowledgements to make in modern equity discourse is that non-racialized women often face the least amount of discrimination, in particular as compared to other discriminated groups. This is particularly true within the legal community, and appears to be supported by the LSO’s report on the Challenges Facing Racialized Licensees. For non-racialized women who have spent much of their lives within the feminist movement, it’s particularly difficult at times for them to recognize how they might themselves by imposing discriminatory conduct or supporting institutional barriers on others.

However, rather than attempting to create a hierarchy of discrimination though between discriminated groups, the preferred approach within an equity paradigm is to describe an intricate web of relationships. The reason for this is the understanding that all members of society, both within discriminated groups and throughout society at large, have a joint and shared responsibility to ameliorate systemic barriers. This involves a high degree of cooperation, but also a recognition of shared advocacy towards these goals between all participants in society, irrespective of their individual identities. To achieve that goal, a process of learning, understanding, and developing of empathy towards others is a necessary prerequisite.

Some of the difficulties our courts and tribunals have faced in investigating intersectional approaches was highlighted recently at the 2019 Julius Alexander Diversity Moot at the Ontario Court of Appeal, based on the British Columbia Human Rights Tribunal decisions in Ramadan v. Kwantlen Polytechnic University and another.

The applicant in this case was an Arab-Egyptian man who claimed discrimination under s. 13 of the BC Human Rights Code as a professor in the Faculty of Arts, Criminology Department at the university, based on his race and because of a perceived mental disability. The dispute is a convoluted one, involving several conflicts with other staff and faculty members. The administration decided to place him on a paid leave while investigating his mental health. The complaint was dismissed on s. 27(1)(c) and (d)(ii) basis, which provides the Tribunal wide latitude to determine that there is no reasonable prospect of success or would further the purposes of the Code.

The applicant’s complaint focused on the paid leave, which he attributed to the discriminatory characteristics impugned on him by the university. The university based and justified its decision for the leave on workplace safety under the Workers Compensation Act and Occupational Health and Safety Regulation, as well as the anti-bullying provisions under the Workers Compensation Act. By framing his complaint on the leave alone, and not explicitly complaining about the incidents and conflicts leading up to the leave, the complainant, who experienced a heart attack during the ordeal, failed to demonstrate any adverse effect – as the suspension never actually occurred.

An intersectional analysis of this dispute however might emphasize the stereotypes around Arab men, an understanding how Egyptian speech patterns being perceived in the West as loud and aggressive, and in particular, how the perceived humiliation of being threatened for a leave when speaking out against discrimination would be understood from a cultural perspective. It would also understand in particular that the types of concerns expressed over employee safety here, which were never actually substantiated, are exactly the types of discriminatory conduct that non-racialized women would typically express of an individual of his particular demographic. The concerns over mental health could very easily be explained by an inability by administration to understand the complaints made by an individual of an entirely different culture and whose first language was not English. In Egypt, for example, the applicant’s approach would be perceived as far more typical and appropriate.

None of this would need to be determined on a definitive basis, but it would likely establish an adequate prima facie case to deny the s. 27 application. Unfortunately s. 59(1) of the British Columbia Administrative Tribunals Act (“ATA”) sets a standard of review for s. 27 decisions as patent unreasonableness, meaning the lack of this analysis in the decision or its reconsideration could never have this type of scrutiny applied to it by the judiciary. Tribunal members and judges need a more robust understanding of the complexities of discrimination from an intersectionality framework. Although more appointments of diverse candidates would assist with this, it’s much more important that all appointments have diverse experiences and insights into other groups and communities, and not just the ones that they may identify with or belong to.

Further discussions of intersectionality explored the interplay between race and mental health in a talk by Dr. Kwame McKenzie, CEO of the Wellesley Institute, at an event at the Law Society of Ontario and hosted by the Canadian Association of Black Lawyers (CABL). His keynote touched on the Ontario Human Rights Commission interim report from December 2018, A Collective Impact, on the racial profiling of black people in Toronto by police. 

What Dr. McKenzie also illustrated is how racism creates not only discernible mental health effects on those who are discriminated against, but physical health effects as well. The higher morbidity and mortality rates for racialized populations in Canada can actually be attributed to the effects of racism that they experience due to their racialization. The failure to properly understand and address racism has aggregate effects on these discriminated populations, which itself creates broader societal burdens.

In a contemporary context, the ongoing and entirely unnecessary controversy in Ontario over the Statement of Principles is particularly troubling. The discussions in committee and the protracted debates, twice, on these issues at Convocation were themselves traumatizing for the racialized Benchers participating. Far too often they were confronted with colleagues who were completely inept and lacked any understanding of equity issues. It was equally troubling to lawyers in the racialized communities to observe such a fierce resistance to rather innocuous measures.

The fact that perhaps dozens of new Bencher candidates are running solely for the purpose of reversing some of these equality, diversity, and inclusiveness initiatives is a complete affront to concepts that are firmly grounded in law, science, and medicine. What it has done more than anything is conclusively demonstrate how widespread the problems are in the legal community, and how essential continuing professional development will be in moving forward.

As illustrated above, the understanding of equity within an intersectional lense requires every single participant to continuously learn about others, irrespective of their own identities and personal struggles and experiences. This should be perceived as an admirable goal, one that those who belong to a profession where principles are already constantly changing due to statutory amendments and judicial decisions should be comfortable with, even if these concepts are a new frontier for them personally.

Photos from the 2019 Julius Alexander Diversity Moot