Challenges of Intersectionality to Feminist Legal Strategy and Solutions - Essay Example

Challenges of Intersectionality to feminist legal strategy and solutions Number Department Introduction Intersectionalism seeks to categorize women in different groups and provides an accurate diagnosis of the different challenges, opportunities and benefits that women experience in society. Intersectionalists explore the biological, social and cultural classifications of women and how the resulting outcomes in the form of race, social class, capability, and sexual orientation impact internal divisions among women, leading to the discrimination of others while the rest of the community continue to live happily. Intersectionalists believe that the ancient theories of prejudice within society occasioned by racism, male chauvinism and belief-based bias including nationalism are highly interrelated, hence the intersection theory. Intersectionality theory challenges the universal approach to feminism in the sense that within the wider category of women, there are different smaller categories of the community, whose interests oftentimes conflict. In most cases, the end result is disenfranchisement of members who are perceived to be weaker than others and a serious challenge to the legal cause of universal feminism in society. This paper examines the challenges that intersectionality pose to feminist legal strategy and how successfully have these challenged been resolved. Race and gender intersection in reproductive rights Reproductive rights and the use of sterilization have served to underscore the differences among women in modern times (Topolski 2012, p.231). Mainstream feminist movements of the twentieth century regarded the matter of reproductive rights of women as precisely the better alternative to lawful abortion among socially weaker women, without recognizing the race factor in the issue (Bartlett 2012, p.389). For many centuries race-based reproductive policies have deterred women who are non-whites from giving birth to and rearing as many children as they wished. Goldberg (2014, p.12) has suggested that the advent of the contraceptives and the racist sterilization initiatives significantly transformed the issue of reproduction and the rights that underlie it into far more complex issues for women of colour and blacks who have been bearing the brunt of skewed policies regarding this important part of their life for quite long to bear (Pinderhughes 2008, p.48). Cole and Luna (2010, p.85) have noted that proponents of universal feminist movements have had to grapple with the problem of some women being labelled as unsuitable to bear or raise children. Eugenicists have noted that women with mental illnesses, those with physical disability, inmates, and the underprivileged groups who are non-whites have fallen in this category (Peterson 2012, pp.13-17). The passage of compulsory sterilization pieces of legislation in the late nineteenth and early twentieth centuries in the West, purposely to deny ‘unfit’ women of their reproductive rights through destructive surgical processes continues to haunt universal feminist movements in their legal projects (Browne and Misra 2003, p.492. The attempt to control ‘careless’ breeding of non-whites in mainstream western societies created social rifts within the women movement, by giving the perceived superior women an edge over the rest of the women fraternity in terms of reproductive rights. As a result, women who feel disenfranchised tend to abandon feminist causes in society (Deckha 2004, p.23). In Europe, many recent researches have pointed out that Roma women are one of worst affected by internal intersectional reproductive inequalities, which hinder meaningful feminist causes in the society. According to Goldberg (2014, p.14), most Roma women are forced to grapple with conditions that resemble those in poor African countries as far as reproductive care is concerned. As Michiels (2013, p.16) has said, the inequalities facing the women are so dire that it tilts the tide against the hapless community on a wide range of issues including level of education, infant deaths and nutrition. Involuntarily sterilization is one of the outcomes of intersectionality targeted at the perceived inferior women in the society, which hinders the legal feminist cause. The practice normally witnesses an intersection of race, class, sexual orientation, and literacy level of the victims when recommending it (Cermele and DiLorenzo 2010, p.558). Such cases have impeded feminism in other European countries like Czech Republic, Hungary, Slovakia and Romania. European counties that had communist influences during the twentieth century have silently persisted with the practice, since the method was a popular form of regulating population growth in the society (Harris 2012, p.161). According to Sholock (2012, p.704) the main problem behind forced sterilization among Western women has been the lack of information about the practice, especially in European countries that neighbour former communist colonies. According to Conway (2012, p.381), involuntary sterilizations of perceived inferior women are an aspect of intersectional bias. Moreover, in a number of specific situations, prejudice is meted out on the supposed victims in a double-fold manner. First, with the actual process of sterilization alone, the perceived inferior women are subjected to prejudice that the mainstream middle class and upper class are spared (Pinderhughes 2008, p.51). Secondly, the sterilized women are subsequently prejudiced against in their social settings, especially in traditional societies that view them as having lost their worth – the ability to bear children (Deckha 2004, p.16). The resulting feeling of rejection snowballs to women’s alienation from the community and their eventual relegation from taking part in feminist initiatives that would have served to bridge the gender gap by fostering a common stand among minorities within the group in order to fight for a greater voice (Shefer 2010, p.383; Demos and Segal 2009, pp.56-92). The race and gender intersection in rape According to Harris (2012, p.166) rape is classified as one of the most devastating experiences of women who suffer from prejudice around the world. Rape cases have taken the better part of the Western feminist movement by shock, since such cases have been highly influenced by intersectionalism factors such as race, social class, income, and literacy levels (Inzlicht and Schmader, 2012, p.78). Since the era of slave trade, rape has been exploited by the high and mighty in society to reign over weaker population segment mainly composed of women (Kfir 2012, p.93). Over the history, rape has formed a very important part of the social relationship trends between slave masters and their hapless victims (Cole and Luna 2010, p.81). In the United States, historical cases of improper investigations of cases of rape among the Black women and women of colour substantially opened the rift between mainstream whites and the supposed inferior populations, hindering feminist movements in the country before the 1960s Civil Rights Movements (Backhouse and Deckha 2009, pp.235-239).  From a legal perspective intersectionality has affected the successful prosecution of cases of rape of women due to the race, class and income levels, for example. According to Reilly (2007, p.184), attempts to obtain a fairer penalty for an offense triggered by a particular intersectionalist issue by feminist litigants have encountered different obstacles arising from establishing what the real motivation was. The delay in the enactment of hate crimes legislations that protect women from male discrimination and intra-gender bias had encountered problems infiltrating within the women fraternity to correct intersectional problems. In light of this, proving the animus in an environment where race, sexuality and gender roles play out in the commission of crime has been difficult (Kinser 2010, p.67). Feminists normally face the uphill task of proving that the unequal treatment and feelings of exclusion within the community for members who are deemed to be inferior. Feminist efforts Just as feminism became more popular and concerned with handling issues related to intersectionality in the wider social conceptual framework, members of their legal opinion were striving to dismantle the main theoretical traditions that had been established to work against women (Kfir 2012, p.81). Feminist legal project pioneers were becoming cognizant of the likelihoods of legal regimes being used not just as vital tools to achieve reform-oriented political goals, but also as a means of contemplating and conceptualizing better gender relations, since poor gender relations was one of the major challenges facing the movement leaders. Rogers and Kelly (2011, p.402) note the significant role of law structures as a dominant discourse in creating a reprieve for victims of interectionalist bias. Key feminists eventually managed to transform the agenda of legal feminism from mere instrumental assessments of social causes into a platform for correcting women’s cold reception of some members of their gender groups within the community. Backhouse and Deckha (2009, p.233) says Judith Butler with her philosophy of performativity has contributed significantly towards directing feminist focus toward issues of inherent legal subjectivity that have continued to create enmity among women for many decades. Cole (2009, p.561) notes that it is mainly within the parameters of such undertakings with legal philosophies based on performative processes of subjective structures and cultures, that ‘modern’ intersectionality of universal feminism have been born. As a consequence, there are clear dissimilarities between the strategies of ancient and current attempts to conceptualise intersectionality, especially with regard to practice. One important contrast between the stark differences within the women fraternity and the achievements that have been realised under the current system is evident in the relative missing nexus between historical attention and modern intersectionality evaluations (Cole and Luna 2010, p.95). Despite the commonality of the feminist movement’s voice in the current world in which modern intersectionalists are less concerned with looking into the very core causes of disparity within the community, history is vital (Cermele and DiLorenzo 2010, p.559). Current theorists present a treatise of representation as opposed to the origins; the ensuing situation witnesses the odds in future evolution of the understanding of the current rather than investigations of historical roots of the inequality taking effect and failing to create lasting solutions to the problem of intersectinalism (Cooper et al 2008, pp.79-83; Skjeie and Squires 2012, pp.123-136). Non-activist solutions Regardless of the neo-modern look of current-day legal feminists, women who are subjected to acts of prejudice within the society have benefitted from more peaceful ways of registering their complaints and seeking more amicable solutions to their problems. By contrast, past intersectionality theorists, favoured collective political movements and the activist acts that greeted cases of discrimination meted out on the members of the gender or when they wanted the message of legal and political reform to fight entrenched cases of prejudice in society to reach the policy makers. As Cole (2009, p.562) has indicated, the politics of joint responses which were particularly costly, because they could easily degenerate into violence are increasingly becoming out-dated in modern theory and practice. In light of this, materialist feminism came in the form of a very diverse perception of political economy in which collectivism was seen as a vital factor in any approach to liberation (Lugones 2010, p.745; Hebert 2007, pp.34-37; Lombardo and Verloo 2009, p.485). Individual confrontations were seen as only viable under a joint platform, bringing people of similar thoughts together to pursue a cause and mission related with feminism. As Sholock (2012, p.706), the perceived importance of the economy encompassing universal economic, political and social transformation, simply failed to create the level of concentration on individualism which is evident in the current feminist theory and practice. This conceptual retreat from joint political agency not only shows better placed womenfolk within their social gender sanctums, but corresponds, in radical concepts, with a collapse of economic-based thinking. This transformation is clearly evident in feminist legal concepts and forms an important part of the intersectionalism, regardless of the gestures of recognition of class inequality. Conway (2012, p.386) decries the lack of proper outlines for conceptual thought and practice in terms of the economic as part of the challenge facing current-day feminists. Once the feminist thinking and practice shifted away from materialist perceptions of the ancient feminists in the 1980s, a new wind of modern feminism aimed at healing the economic rifts within the women fraternity has taken effect. Rogers and Kelly (2011, p.399) note that when the importance of focus on distributive issues resurfaced in the current world of neoliberalism scenario of widening socioeconomic disparities across the world, neo-modern feminists have found it a lot easier to align class with existing theoretical standpoints of identity so as to discover the economic aspect of one’s worth in the cultural context. As a result, legal feminism has been able to separate materialism or the Marxist life processes from the core of women movements so as to facilitate parity through discursive contestation. Nonetheless, current legal feminist projects are encountering resistance in an effort to achieve their goals of creating a better society in which the political elite also support the noble cause (Deckha 2004, p.34). It is notable that the lack of consistent historical consideration in the modern theories makes the change as practice and ideological relatively problematic. Eliminating the current cases of bias across women intersectionality, will likely remain where it is currently at least for the next couple of decades because of the missing historical link of in policy and legal reforms. Legal reforms The conflict among different communities of women based on class, literacy, material wealth, race, ethnicity and skin colour has led to the biggest coup yet for neo-modern feminists in the levelling the ground to allow for equality in their enjoyment of fundamental rights without prejudice (Renzetti, 2013, p.13). Legal reform and implementation of fair laws should be clarion call to ending intersectionality. This is especially true because feminists’ resolve to end intersectionalism has led to the codification of the members’ right to lead lives that are free from prejudice including those which are perpetrated by members of the same gender. Through the constant struggles of legal feminists, intersectionalism has been severely dealt a major blow following the enactment of the Equality Act 2010, which has granted UK women gender reproductive rights including the right to access of contraceptives; non-discrimination based on pregnancy, race, sexual orientation, marital status, and education among other fundamental rights. In addition, UK’s further protection of the inferior women through the implementation of the binding international EU laws that also compliments and seek to safeguard, and in a number of occasions promote the rights of historically inferior women. These bodies of law include the United Nations Convention for the Elimination of all Forms of Discrimination against Women (CEDAW), the UK Human Rights 1988, The Racial Equality Directive 2000, and the Race Relations Act 1965. Despite the fact that disenfranchised women may have collective problems of intersectionalism, these laws provide for a more peaceful way to clamour for their rights as a group or individually which was not the case before the enactment of the debut pieces of legislation to correct internal discrimination within the womenfolk in1960s. Protected Reproductive rights The achievements of legal feminists with regard to eliminating intersectionalism were evident in the Nixon v Ross Coates Solicitors and another [2010] UK EAT 0108 in which the claimant’s discrimination claims on the basis of her pregnancy were eventually granted by the Employment Appeal Tribunal (EAT) (Chalmers 2010, p.1). The claimant was pregnant for her fellow workmate, and took the step to inform her employer about the issue. The human resource manager unfortunately started to gossip about the issue at the workplace after she had left. Ms Nixon overheard them discuss the issue; asked for a temporary leave; filed a formal protest note with the employer and asked for a transfer to another unit farther from the HR’s Manager. Her request was disallowed and she was denied her dues for the period she was not at work. Ms Nixon dropped the keys to her office and filed for constructive dismissal, prejudice and harassment claims. The claimant initially lost the case for prejudice and harassment, but on appeal to the EAT she was awarded all the damages. The tribunal based its decision on the fact that under the Sex Discrimination Act 1975, gossip is discriminatory in the sense that it fails to meet the favorable treatment test. In addition, the employer’s subsequent treatment of her was established by EAT as consistent with her harassment since it was coupled with a breach of her dignity, hostility towards her, and an unbearable environment (Chalmers 2010, p1). The case of Nixon is an opportune reminder to business organizations about their obligations under the law to be sensitive to their female employees’ rights to a friendly workplace environment, especially in relation to other employees. The ruling underscores the need to make sure that grievances are handled effectively and quickly. The case further highlights the far-reaching impacts of the anti-discrimination law as far as women’s reproductive rights are concerned. In light of this, it can be argued that the ruling provides an implicit universality in the application of law in the handling of women’s issues with a view to eliminating intersectionalism that have only served to alienate women who are perceived to be of less significance to society. Conclusion The feminism in law has encountered serious challenges from the insectionalist theory and practice which seek to create superior and inferior classes of women in society. Precisely social, economic, and cultural issues within the women fraternity have impeded efforts to forge a common feminist ideology and practice aimed at creating gender parity with men. Colour of the skin, literacy, level of income, class, body physique, and sexual orientation are some of the factors that create conflicts within the womenfolk and hinder their progress to have a greater voice in society. Regardless of the impediments, the greatest achievement of the feminist movement is the empowerment of women through enactment of equality laws in the United Kingdom and other Western developed countries to an extent that it does not take a feminist movement to reverse an infringement on an individual woman’s rights as it used to happen before the mid-1960s, when the first anti-discrimination laws were passed by the UK. Today, a disenfranchised woman can seek internal appeal processes in an organization that she serves in or petition an employment tribunal or file legal proceedings in a court of law. References Backhouse, D., and Deckha, M. 2009. Shifting Rationales: The Waning Influence of Feminism on Canada’s Embryo Research Restrictions. Canadian Journal of Women & the Law, 21(2), pp.229-266. Bartlett, K.T. 2012. Feminist Legal Scholarship: A History Through the Lens of the California Law Review. California Law Review, 100(2), pp.381-430. Browne, I., and Misra, J.2003. 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