PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW (c) Intersectionality and multiple discrimination SUMMARY • Anti-discrimination legislation should prohibit multiple discrimination by recognizing that discrimination may occur on the basis of more than one protected ground. Multiple discrimination can be “cumulative” or “intersectional” in nature: PART TWO – I – Cumulative discrimination takes place when discrimination occurs on two or more, separate, grounds. – Intersectional discrimination takes place when discrimination occurs based on a combination of grounds that interact with each other in a way that produces distinct and specific discrimination. • To ensure comprehensive protection, anti-discrimination legislation should ensure that cumulative and intersectional discrimination are explicitly prohibited. In recent decades, there has been growing recognition that discrimination can – and frequently does – occur on the basis of multiple grounds, often interacting with each other in complex ways. As a result, a clear consensus has emerged among the United Nations human rights treaty bodies that effective protection of the right to non-discrimination requires prohibition of multiple discrimination – that is, discrimination on more than one ground. The term “multiple discrimination” can be understood as referring to two distinct phenomena: • “Cumulative” discrimination occurs when an individual experiences discrimination based on two or more, separate, grounds. While this can and does result in compound disadvantage, laws that prohibit discrimination on the basis of single grounds can provide a means to challenge these distinct and separate acts of discrimination. • “Intersectional” discrimination occurs when an individual experiences discrimination based on a combination of grounds that interact with each other in a way that results in a particular harm. Such a case might occur, for example, in a situation in which a television station adopts a policy of terminating the employment of women presenters once they reach the age of 45. Men in the same age bracket are not affected by the policy; nor are younger women. In this case, the discrimination experienced arises not due to age or gender alone, but due to the interaction or fusion of these grounds. In such cases, individuals possessing only one of the characteristics at issue would not experience discrimination – it is only because of the combined, intersectional impact that the harm occurs. As such, where laws do not recognize intersectional discrimination, there can be a gap in protection. The Committee on Economic, Social and Cultural Rights has clarified that the prohibition of discrimination under article 2 (2) of the Covenant includes both cumulative and intersectional discrimination.185 The Human Rights Committee has increasingly applied the concept of multiple or intersectional discrimination to its assessment of State obligations under the Covenant186 and has recommended that States prohibit all forms of multiple and intersectional discrimination through the adoption of comprehensive equality law.187 These recommendations are mirrored in the practice of the Committee on the Elimination of Racial Discrimination,188 the Committee on the Elimination of Discrimination against Women189 and the Committee on the Rights of 185 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), paras. 17 and 27. 186 See, for example, CCPR/C/MRT/CO/2, paras. 14–17. 187 See, for example, CCPR/C/ITA/CO/6, para. 9; and CCPR/C/AUS/CO/6, para. 18. 188 The Committee on the Elimination of Racial Discrimination has set out that: “The principle of enjoyment of human rights on an equal footing is integral to the Convention’s prohibition of discrimination on grounds of race, colour, descent, and national or ethnic origin. The ‘grounds’ of discrimination are extended in practice by the notion of ‘intersectionality’ whereby the Committee addresses situations of double or multiple discrimination”. See Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 7. 189 The Committee on the Elimination of Discrimination against Women has noted that “discrimination of women based on sex and gender is inextricably linked with other factors” and that the concept of intersectionality is essential to “understanding the scope of the general obligations of States parties contained in article 2” of the Convention. See Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010), para. 18. See also Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 12. 27