The Legal Megalomania of Intersectionality

A Buzzword That Has Been Elaborated Into a Worldview Built Atop a Foundation of Quicksand

This article is long, dense, and technical but also clear, rigorous, and unanswerable. It demonstrates that one of the key activist concepts of our time, a buzzword that has been elaborated into a worldview, rests on an intellectual foundation built atop quicksand.

Much of the authority of “intersectionality”, and by extension the cascade of tedious copypasta which now infests our governing bureaucracies, public schools, and the Instagram feeds and inner monologues of neurotic youth throughout the Western world, rests upon the unexamined assumption that the original theory is grounded in rigorous legal scholarship that offers a revelatory lens through which to identify the hidden inequities stitched into the fabric of our societies. The author of this post dismantles this pretense by thoroughly fisking the actual legal analysis at the heart of the article that inaugurated the discourse. She reveals how little its own analysis supports its overarching claims and how much of it in fact subverts it.

It is of course somewhat quixotic to try to hold to account a buzzword that was never intended to meet the standards of an intellectual discipline to the standards of an intellectual discipline. Intersectionality, like most of the corpus of maudlin and histrionic textual performances that were laundered through law journals as “Critical Race Theory,” was forthrightly aimed at incubating a memeplex that activists and other moral entrepreneurs could milk for clout and not to withstand the scrutiny of legal scholars. In this it has succeeded hugely.

At one level, it doesn’t really matter that the original statement of intersectionality’s theoretical claims are self-undermining or that its major premises can be empirically refuted by three minutes of Googling (revealing, for instance, that white men are the group by far the most likely commit suicide, or that any empirical analysis finds that the group for whom disadvantage most compounds are those who are black and male, who lag far behind their black female counterparts along every measurable index of well-being despite operating in an alleged patriarchy.) No one subjected the article to any real scrutiny at the time of publication because the concept was never about creating analytically useful tools for understanding the world. Consolidating power within left activist spaces and generating a paint by numbers academic discourse that can provide leverage for those seeking tenure in schools of education, psychology, and social work, whose graduates have gone on to bend one profession after the next to their agenda, was always the point.

And yet because maintaining the pretense that someone has at least once done sound scholarship that stands over and above the mindless copypasta to which a successor generation of epigones have allowed it to devolve remains an important part of the memeplex’s claim to intellectual respectability, scrutinizing that work on its own terms remains an important and necessary task for as long as the disciplinary standards mean anything. (There is an open question how long they will, but for now, we must behave as if they do.) That this much belated work of intellectual hygiene had to wait until 2023 for an Israeli philosopher writing on Substack to undertake is just one of the many odd exigencies of our historical moment.

—Wesley Yang

By Rona Dinur

Intersectionality is everywhere. Once inhabiting an obscure niche of legal scholarship, the claims of Kimberlé Crenshaw and other intersectional theorists about the ever-present imperative to consider the “intersecting” or “interlocking” nature of various group-based “systems of oppression” now permeates almost every policy discussion. Notions associated with intersectionality and its modes of thinking are routinely invoked by activists and politicians, who implore people to consider their “intersectional positionalities” before voicing, or even forming an opinion, about social or political matters. Even more worryingly, intersectionality has slowly but confidently expanded into the hard sciences and medicine, where it purports to provide a framework for evaluating the social impacts of scientific inquiry.

It is a curious question what led to this overwhelming success and rapid spread of intersectionality to such wide-ranging and diverse fields. Many have pointed to the religious or ritualistic character of invocations of intersectionality and other notions associated with “Critical Theories” (such as Critical Race Theory). The usefulness of such “theories”1 for various political actors—specifically, the conveniently oversimplifying framework they provide for any policy and political discussion, practically absolving policymakers of responsibility to subject their positions to nuanced evaluation—is yet another feature that has probably contributed to their intentional perpetuation. My own broader thoughts on the matter are that similar to other Marxist-oriented “Critical Theories”, what intersectionality essentially does is hijack mechanisms of social cognition that we routinely use to navigate political and social reality, making it appear much more plausible and useful than it actually is, and helping it spread unchecked in many areas.

These broader sociological and psychological stories are, however, only a part of the picture. For intersectionality often fashions itself as offering a nuanced and insightful critique of legal arrangements designed to address group-based discrimination and inequality, and exposing overlooked and underappreciated failures of the legal system on that front. Specifically, Crenshaw’s original introduction of intersectionality into legal scholarship, in the now seminal 1989 law review article, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics“, purported to offer a useful critique of the way American anti-discrimination doctrine addresses claims of discrimination brought by those that “fall at the intersections” of various social categories—most notably, Black women. Discrimination perpetrated against Black women, Crenshaw claims, does not fall neatly into either the category of race-based discrimination or into the category of gender- or sex-based discrimination employed in anti-discrimination jurisprudence. As a result of the “intersectional” nature of discrimination perpetrated against them specifically as Black women, the injustices they are subjected to remain invisible to the legal system. In Crenshaw’s own words:

“[D]ominant conceptions of discrimination condition us to think about subordination as disadvantage occurring along a single categorical axis. […] this single-axis framework erases Black women in the conceptualization, identification and remediation of race and sex discrimination […] This [….] marginalizes those who are multiply-burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.” (p. 140)

Of course, intersectionality doesn’t stop at this narrow legal thesis. As can be gathered even from this short quote, already in Crenshaw’s ’89 article, and even more so in the decades following its publication, intersectionality has put forward a much broader theoretical apparatus, advancing a plethora of interconnected claims about what social and political reality consists in, how it operates, and how people should engage with it to implement intersectionality in real life (“praxis”, in critical-theoretical terminology). Critics of this broader theoretical and practical agenda often shy away from examining intersectionality’s supposedly more technical-legal parts; and so, this multiply-headed structure often leads to a situation where, in a move now familiar from other areas, intersectionality is parachuted into the public realm by a battery of “experts”, giving the wider public the impression that at least some of its claims and policy recommendations are a settled matter of legal analysis or theory. In short, while it seems transparent to many commentators and members of the public that intersectionality’s broader claim cannot withstand scrutiny, it remains the popular perception that it is comfortably grounded in a valuable critique of legal matters pertaining to discrimination and inequality.

Unfortunately, this perhaps last standing bubble of credibility will have to be burst as well. Contrary to the image delivered to the public by various advocates of intersectionality, it does not have much to offer by way of a serious critique of anti-discrimination law. In fact, I’ll show that Crenshaw’s claims about the failures of anti-discrimination doctrine in addressing what she might characterize as “intersectional discrimination” cannot be substantiated, and are in some cases undermined, by the very legal cases she uses in her ’89 article to support these claims. Ipso facto, all of intersectionality’s broader theoretical claims, for instance, about the inherently “intersecting” or “interlocking” nature of “systems of oppression”, cannot be legitimately claimed to be supported by this legal critique either. More specifically, we will see that contrary to Crenshaw’s claims, courts did adequately address cases of “intersectional” discrimination (and specifically those perpetrated against Black women)—including in the legal cases she specifically mentions in the ’89 article; and that a cursory examination of the details of these cases undermines the larger thesis about the “intersecting” or “interlocking” nature of various forms of oppression.

To see all of this, we’ll have to have a brief introduction to anti-discrimination law, after which I’ll examine the cases discussed in Crenshaw’s ’89 law review article.

Background about anti-discrimination law

Anti-discrimination laws were initially developed and implemented in the United States during the 60s and 70s. Back then, the main concern of this new body of jurisprudence was eliminating discrimination against African-Americans, and expanding opportunities for the group’s members in various domains where they had been previously excluded, including employment, education, housing, and the provision of goods and services. Generally, then, legislators, policymakers, and legal practitioners had a pretty straightforward image of what wrongful discrimination looks like when anti-discrimination laws were initially introduced: employers refusing to hire African-Americans, educational institutions refusing to admit members of the group, and so on—simply because of their skin color or racial identity.

In the decades following its initial introduction, anti-discrimination jurisprudence has significantly expanded in its purview, and the doctrinal and institutional arrangements it consists in became much more extensive and complex. Its main norms (which I briefly describe below) also emigrated to many other countries and jurisdictions, where the general apparatus of anti-discrimination jurisprudence remains similar to that of the United States. All of these later developments gave rise to a host of controversies over the legitimacy and appropriate interpretation of many parts of anti-discrimination law. Luckily, however, all of these can be set aside for present purposes, as the cases discussed in Crenshaw’s article fall squarely within the bounds of traditional anti-discrimination doctrine.

Here is a description of the main norms of anti-discrimination doctrine—those that are commonly used by courts to adjudicate legal claims of discrimination. I’ll illustrate using examples from typical employment discrimination lawsuits.

In order to prevail in an employment discrimination lawsuit, claimants or plaintiffs, that is, purported victims of workplace discrimination, have to show that they have been discriminated against by the defendant—their employer or potential employer, which could be a private company, a governmental entity, etc.—by proving in court that the conditions specified by either of the following rules are satisfied.

First, claimants can show that the employer has engaged in ‘disparate treatment’ (or, outside of the U.S., direct discrimination): roughly, that the employer intentionally or explicitly treated them differently (and disadvantageously), relative to other employees, because of their membership in, say, a certain racial, ethnic, or gender-based group. A straightforward example here would be not hiring a candidate based on their skin color, not promoting members of a certain community (or allowing them only into some low-level positions), and firing someone based on their group identity. Showing this often, but not necessarily, aligns with showing that the employer is prejudiced (or a racist/sexist etc.), or that they have engaged in the intentional exclusion of members of certain groups because of things such as racial animosity. In any event, proving that the conditions specified by the “disparate treatment” rule are satisfied is often difficult, because plaintiffs don’t have direct access to the considerations that the employer acted on (or their attitudes, mental states, etc.), and those might not be transparent even after legal discovery or disclosure procedures.

A second route that claimants can take is showing discrimination based on a “disparate impact” rule (or, outside of the U.S., indirect discrimination). There is still much controversy and political turmoil surrounding this supposedly more permissive rule/route, its underlying rationales, and its legitimacy. It seems rather clear, however, that it was initially at least partially based on an evidentiary rationale, and designed to help plaintiffs overcome the difficulties with proving their complaint under the “disparate treatment” rule. The “disparate impact” rule thus maintains that, at least in some circumstances, it is enough for plaintiffs to show that a certain employment policy or practice has a disparate negative (or adverse/disadvantageous) impact on members of a certain group (relative to other groups), or that it disproportionately negatively influences them. This was meant to target those employers that, in order to avoid legal liability under the “disparate treatment” rule, refrained from openly discriminating—but instead came up with policies that, despite not containing any reference to people’s group identity, resulted in the exclusion of members of a particular group. Another general rationale underlying this rule was that of eliminating the lingering effects of past discriminatory practices (for instance, by prohibiting “last hired first fired” costumes and word-of-mouth hiring practices in certain circumstances).2

Just a few points to notice here are the following. First, anti-discrimination laws in the United States and elsewhere typically mention certain categories, many of which are commonly considered to correspond to certain social categories, or categories that are socially important in some way (whatever that means precisely): race, color, gender, ethnicity, national origin, etc. Thus, anti-discrimination norms typically prohibit discrimination—disadvantageous, differential treatment—which is based on, or somehow related to, certain types of social categorization; American anti-discrimination law also prohibits classifications that are based on such categories. So, for instance, employers can’t select employees or fire them based on their race, and can’t introduce race-based classifications into their promotion policies.

While it isn’t precisely clear what is the ground and justification for including certain categories and not others in anti-discrimination prohibitions, it seems reasonable and straightforward to suppose that those should correspond to the social categories around which there is, well, a lot of wrongful discrimination (or especially pernicious or persistent discrimination). These may differ, of course, from one society to another: in society X race may be an important category in that regard, in society Y it would be ethnicity, or culture, or language, in society Z age or marital status, and so on. Put simply, in order for anti-discrimination laws to be effective, the categories included in them should be responsive to the “social axes” along which wrongful discrimination tends to take place. To that extent, a given society’s anti-discrimination jurisprudence typically reflects the social categories or types of groupings that are significant with regard to patterns of discrimination and inequality in that particular society.

All of this highlighting is important because, as readers familiar with intersectional thought have probably already noticed, what Crenshaw makes of the categories found in anti-discrimination laws far, far exceeds their actual pragmatic role. Particularly, she supposes (without evidence) that these categories reflect some underlying, deep-seated (“dominant”) views about the nature of the corresponding social categories and groups, and the nature of social reality more broadly; on the other hand (and in a somewhat self-contradictory manner), she suggests that these categories, and the way they are employed in anti-discrimination jurisprudence, hugely influence social reality—including the way society is organized group-wise, the relationship between different social groups, and the dynamics of various social and political conflicts they are involved in (that is, way beyond what would be expected from the law’s role in preventing or mitigating discrimination). Thus, the overall trend of Crenshaw’s discussion is supposed to show that the purported lack of “intersectional analysis” in anti-discrimination law, or lack of proper appreciation of the fact that categories sometimes “intersect” to create various classificatory combinations and sub-categories, stems from the control that “dominant” ways of thinking exert over our understanding of social reality; and that the same absence of “intersectional analysis” in anti-discrimination law somehow hugely negatively influences the lives of “intersectional” groups, and is a general destructive force in the various legal, social, and political struggles that are meant to improve their situation relative to the “intersecting” or “interlocking” oppressions they are supposedly subjected to.3

But it’s important to get things straight: legal categories, including those that are used in anti-discrimination laws, are just that—pragmatic tools that are meant to achieve certain aims. Of course, these can have all kinds of connections to reality, and to people’s beliefs, attitudes, or cultures (dominant or otherwise); similarly, the way certain categories are used in the adjudication of legal matters can influence people’s lives in all kinds of ways. However, the presupposition that legal categories are solely a reflection of the “dominant culture”, and that they, in turn, “structure” both the (immensely complex and highly distributed!) legal practice and the extra-legal reality in some unmediated way is, of course, just a tenet of the intersectional critical-theoretical dogma that no one should feel compelled to accept. In reality, there is no reason to suppose that the categories included in anti-discrimination laws, and the way they are employed in the adjudication of various legal matters, reflect anything particularly profound other than the need to address certain forms of discrimination. Neither there is a reason to presuppose a tight relationship between these categories—and whether or not they do, or should, “intersect”—and the nature of social reality; particularly, whether or not different forms of oppression “intersect” or “interlock” to generate more severe forms of oppression.4

Setting aside these various implausible presuppositions, and the article’s conflation of legal categories, social categories, social groups, and things such as oppression and disadvantage—and what it would mean for any of these different things to “intersect” or “interlock”—we can now examine Crenshaw’s more narrow legal claims, and the legal cases she uses to support them.

Intersectionality’s claims about anti-discrimination law, and the legal cases used to support them

Here is, in some more detail, what Crenshaw says about anti-discrimination law.

First, she assumes that there is a “tendency to treat race and gender as mutually exclusive categories of experience and analysis.”5 (p. 139)

She then says:

“[…] I want to examine how this tendency is perpetuated by a single-axis framework that is dominant in antidiscrimination law […] I will […] contrast the multidimensionality of Black women’s experience with the single-axis analysis that distorts these experiences. […] this juxtaposition reveal[s] how Black women are theoretically erased […] this single-axis framework erases Black women in the conceptualization, identification, and remediation of race and sex discrimination” (pp. 139-140; emphases mine).

She then turns to examine the “doctrinal manifestations of this single-axis framework” (140), that is, the legal cases where the supposed lack of “intersectional” analysis is manifested, and unfairly influences courts’ evaluation of discrimination claims brought by Black female plaintiffs. She concludes this investigation with the following remarks:

“[…] the continued insistence that Black women’s demands and needs be filtered through categorical analyses that completely obscure their experiences guarantees that their needs will seldom be addressed. […] DeGraffenreid, Moore and Travenol [the legal cases discussed below] are doctrinal manifestations of a common political approach to discrimination which operates to marginalize Black women. […] Notions of what constitutes race and sex discrimination are […] narrowly tailored to embrace only a small set of circumstances, none of which include discrimination against Black women.” (pp. 149-151; emphases mine).

Based on these legal-doctrinal points, she also argues that the tendency to conceptualize discrimination as a “single-axis” phenomenon blinds us to the nature and mechanisms of social injustices that black women suffer from:

“[…] dominant conceptions of discrimination condition us to think about subordination as disadvantage occurring along a single categorical axis. […] Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated. […] Unable to grasp the importance of Black women’s intersectional experiences, not only courts, but feminist and civil rights thinkers as well have treated Black women in ways that deny […] the unique compoundedeness of their situation […] [A]cceptance of the dominant framework of discrimination […] not only marginalizes Black women within the very movements that claim them as part of their constituency but it also makes the illusive goal of ending racism and patriarchy even more difficult to attain.” (pp. 140, 150, 152; emphases mine).

Roughly, what can be gathered from this are the following claims:

Anti-discrimination jurisprudence operates within a rigid framework, that systematically ignores justified discrimination claims brought by claimants who have been discriminated against on account of their membership in some group that is defined “intersectionally”: for instance, on account of being a black female (as opposed to on account of being black alone, and as opposed to on account of being female alone).

(To clarify: one can obviously bring separate legal claims, according to which they have been discriminated against—by two or more separate policies, or by a single policy—based on their race alone, and based on their gender/sex alone. Crenshaw’s complaint is that one can’t bring a claim that they have been discriminated against on account of being, for instance, a Black female in particular, that is, based on the intersection of one’s racial and gender/sex categories. However, these two separate things are not always clearly distinguished throughout the article).

From this particular “intersecting” nature of categories of discrimination, or from the need to acknowledge discrimination claims brought by victims of discrimination that is based on the intersection of two or more categories (for instance, Black females), we can conclude that patterns of discrimination, oppression, subordination, or disadvantage always “intersect” or “interlock” to generate qualitatively different and more severe (“compounded”) forms of discrimination, oppression, subordination, or disadvantage against those occupying the “intersection” of social categories.

(As noted above, this jump from the doctrinal critique to those broader claims doesn’t make much sense anyway. But in line with this essay’s purpose, I’ll focus here on showing that these broader claims can’t be supported by the legal analysis offered in the paper).

So, can any of these claims be supported by an examination of the actual legal analysis conducted in the legal cases Crenshaw mentions in the article? Let’s check each of them separately.

Lack of adequate “intersectional” analysis (or treating race and sex as “mutually exclusive categories”) in anti-discrimination law? Lack of acknowledgment of claimants that have been discriminated against as Black females in particular?

Crenshaw directly examines three legal cases in the article. Most of the discrimination claims discussed in those cases were brought by black women, and directed at an employer’s general policies (and not at a single action or decision the employer made). These claims were evaluated, for the most part, based on the “disparate impact” rule discussed above, where plaintiffs have to show that the employer’s policies have a disproportionate disadvantageous impact on members of a certain group. Plaintiffs commonly attempt to show that by presenting data (statistical and otherwise) pertaining to the demographic makeup of a company’s employees, employment candidates, and so on, which indicates serious disproportionality between relevant comparison groups—for instance, indicating that a disproportionate number of Black employment candidates were rejected relative to the makeup of the general candidate pool, or that a disproportionate number of women were laid-off, relative to their share among the company’s employees (some other examples are discussed below).6

Introducing “intersectional” discrimination claims into this typical legal structure has several important implications, some of which are quite complex (and, accordingly, courts’ discussion in some of the cases is quite long and complex). What’s most important to notice is that lawsuits that are structured along these lines typically bring out (at least!) three distinct legal matters or questions where intersectionality may potentially be invoked, or where it appears relevant. Let’s briefly brush over them, so readers can get a sense of the complexity of the topic.

The first matter is the most basic: what is the nature of the legal discrimination claim? Is it a “single-axis” claim (e.g., I have been discriminated against on account of being a woman, or on account of being black), or a “multiple-axes”, “intersectional” claim (e.g., I have been discriminated against on account of being a black woman in particular)? Should plaintiffs be allowed to bring both types of claims in a single proceeding, and pick-and-choose the type of claim that best promotes their interests? (It is not necessarily the case that an “intersectional” claim is the stronger or more beneficial one for the plaintiff. This would vary depending on the circumstances).

Second, how should the data about the company’s demographic makeup be used when the claim is “intersectional”? That is, should the data be used or evaluated “intersectionally”, and in what way? The many questions that may arise here include, for instance, should the court evaluate a discrimination claim based on a “single-axis” breakdown of the relevant data? Or should it evaluate the data based on a breakdown that pertains also to a combination of identity factors, e.g., use separate statistics about black women, black men, white women, and white men? If a plaintiff advances an “intersectional” claim, is it okay to use both types of breakdowns—or are the two probative tactics mutually exclusive? What happens if the myriad of ways in which a certain data set may be broken down don’t align with the same legal conclusion, especially when several of the employer’s policies are evaluated?

Third, as we will see below, in claims directed at an employer’s general policies, that is, ones that influence a large number of the company’s employees or employment candidates, the trial is sometimes conducted as a class action, where one or several claimants/plaintiffs are officially certified to represent the larger group (or class) of the policy’s purported victims/plaintiffs. This raises a slew of serious legal questions and difficulties, because there are many potentially conflicting interests within the group of plaintiffs (and specifically between different sub-groups), as well as between the group and the class representative; also, anyone who is included in the officially certified class of plaintiffs is bound by the court’s decision, and so it is imperative to ensure that their interests are duly represented in the proceeding. Particularly relevant for examining “intersectional” discrimination claims are the following difficulties: can/should a plaintiff accusing an employer of “intersectional” discrimination be a representative of the classes of employees defined by the constituents of the plaintiff’s intersectional identity? For example, should a black woman suing for discrimination on account of being a black woman be allowed to represent all blacks, and all women, even those who are not “intersectional”? Or, alternatively, just all blacks but not all women? What happens, for instance, if some of the employer’s policies affect all women, but others affect only black women? And so on.7

These are all important and complex legal questions, with potentially major and wide-ranging consequences for the protection of people’s legal rights against discrimination (especially those of disadvantaged and multiply-disadvantaged groups!). More generally, it is apparent even upon a superficial examination that introducing “intersectionality” into anti-discrimination doctrine will have different manifestations or applications with regard to each of the three legal matters mentioned above (and there are probably other legal matters where an “intersectional analysis” might have yet other implications).

Nevertheless, Crenshaw doesn’t even explicitly make the distinction between these different legal matters, and does not attempt to address the many difficulties and open questions that would arise with regard to each of them. Instead, she simply mounts the general accusation that the legal system exhibits a complete lack of “intersectional analysis”. A brief examination of two of the three cases mentioned in the ’89 article reveals, however, that contrary to this blanket accusation, courts did engage in an “intersectional analysis” (and quite a nuanced one) across all of the legal matters mentioned above (I’ll get to the third case below, 8).

In Moore v. Hughes Helicopters, Inc.,9 a black female employee of a large helicopter manufacturer claimed that the company had discriminated against black females in particular (and not white females or black males, p. 480) in promotions and selection for supervisory and upper-level positions, and filed her complaint on behalf of black female employees (not all blacks or all female employees; p. 478). In the evidence educed to support her claims, she provided an “intersectional” breakdown of the percentages of white males, white females, black males, and black females at every level of employment (higher and supervisory levels vs. lower levels), and the Court discusses at length whether the higher concentration of Black females at lower-level positions indicates discrimination. Moore’s claims were ultimately rejected, because she failed to show that the black women employed at the company qualified for promotion, or that the company’s hiring practices had a disparate impact on black women (pp. 479, 484-486, and footnote 9 of the Court’s decision).

In a second case, Payne v. Travenol Laboratories, Inc.,10 three black women filed a complaint against a pharmaceutical manufacturer, claiming that the company’s educational requirements in hiring, its layoff policies, and its various methods of assigning employees to different types of positions led to both race- and sex-discrimination (pp. 251-253 of the Trial Court’s decision). Here, then, the complaint itself was not put forward as an “intersectional” one. However, as in Moore, the plaintiffs were certified to represent only black female employees and applicants for employment at the company, indicating that the question at hand was whether and how the company’s policies influenced them in particular (p. 253). When it came to evaluating the complaint, this was at least partially done in a way that aligns with an “intersectional” analysis. Thus, at several points where this is relevant, the Court evaluates the effects of the company’s educational requirements on hiring black females in particular, by examining statistics relating to the educational attainments of the general population in the relevant geographical area, broken down by the combination of sex and race (e.g., the percentages of black females, black males, white males, and white females in the area who have completed 9 or 12 years of education). The Court also compares figures relating to the demographic makeup of the company’s personnel at various positions, again broken down by the combination of race and sex (pp. 255, 257-260, 264 of the Trial Court’s decision). Similarly, the Court of Appeals11 reviews the relevant data, broken down in the same way (820-821, and 828, footnote 41 of the Court of Appeals decision). It was ultimately found that the company’s policies led to widespread discrimination, based in part on this “intersectional” evaluation of the data.

Further, in reviewing the Trial Court’s decision in the same case, the Court of Appeals devotes special attention to the question of class representation arising in connection with “intersectional” discrimination claims. It notes that various “intersectional” groups of claimants may have conflicting interests in pursuing such lawsuits, and determines that in this particular case there is such a conflict between black males and black females, and so that the black female class representative should not be certified to represent black males (pp. 809-812, 832-833; essentially, the two groups were competing for the same positions). In its general discussion of this point, the Court of Appeals engages in quite a sophisticated analysis of the inter-group dynamics that might accompany “intersectional” discrimination proceedings, and the legal difficulties this might create:

“[T]he court must examine the interlacing allegations of race and sex discrimination to determine whether an actual conflict exists. For example, if a black female argues that the employer favors white males to the detriment of both females and blacks, there is no inherent obstacle to her representation of both groups. […] In this case, however, the district court found an actual conflict of interests […] Black males are entitled to a class representative who is free from a desire to prove a claim that will impair their interests.”

(p. 811 of the Court of Appeal’s decision).

Ignoring this straightforwardly “intersectional” analysis, Crenshaw doesn’t acknowledge the legal difficulties noted here and the Court’s attempt to address them—difficulties which are, in some circumstances, inherent to the “intersectional” nature of the claim. Instead, she rebukes the courts for not allowing black women, who claim that discrimination has been perpetrated against them as such, to represent black men as well—hence suggesting, in effect, to expose the latter to a variety of potential risks to their legal rights stemming from lack of proper legal representation.12

Let’s now turn to the third case, DeGraffenreid v. General Motors,13 where several black female employees of General Motors claimed that the company’s “last hired-first fired” layoff policies discriminated against black women. This case is mentioned first in Crenshaw’s discussion, and the article’s legacy is often associated with its critique. Here are some quotes from the Court’s decision, which are most commonly identified with Crenshaw’s claims about lack of “intersectional analysis”:

“The plaintiffs are clearly entitled to a remedy if they have been discriminated against. However, they should not be allowed to combine statutory remedies to create a new ‘super-remedy’ which would give them relief beyond what the drafters of the relevant statutes intended. Thus, this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both […] The prospect of the creation of new classes of protected minorities, governed only by the mathematical principles of permutation and combination, clearly raises the prospect of opening the hackneyed Pandora’s box.”

(pp. 143, 145 of the Court’s decision; pp. 141-142 of the article).

The Court here explicitly rejects the legal possibility of submitting “intersectional” discrimination claims (in evaluating that decision, readers should keep in mind the various complexities and difficulties briefly discussed above14). However, as we have seen, courts in the two other legal cases mentioned in the article did not explicitly reject this possibility, and much of the legal analysis in these cases amounts, in effect, to its implicit endorsement.

Moreover, putting forth the DeGraffenreid decision as representative of the “dominant” view in anti-discrimination doctrine is highly misleading. In fact, at the time of writing the article, another decision—in Jefferies v. Harris County Community Action Association15—had already explicitly endorsed “intersectional” discrimination claims brought specifically by black women, acknowledging that they can be discriminated against particularly as black women. The ruling is mentioned by the Payne v. Travenol court as the controlling precedent, and by Crenshaw in a footnote (footnote 13, p. 143). Here is the Court of Appeals in Payne v. Travenol:

“In Jefferies we held that a black female plaintiff is entitled to prove that she suffered discrimination as a black female, even if the employer did not discriminate against either blacks as a class or females as a class.” (pp. 822-823 of the Court of Appeal’s decision; emphasis mine).

Furthermore, contrary to Crenshaw’s claims, the Jefferies court notes that special attention should be devoted to understanding and evaluating the specific mechanisms and dynamics that such discrimination may involve, and to finding adequate ways of addressing them. Here are some quotes (“Title VII” refers to the part of the Civil Rights Act of 1964 which prohibits employment discrimination):

“The essence of Jefferies’ argument is that an employer should not escape from liability for discrimination against black females by a showing that it does not discriminate against blacks and that it does not discriminate against females. We agree that discrimination against black females can exist even in the absence of discrimination against black men or white women.”

“Black females represent a significant percentage of the active or potentially active labor force. In the absence of a clear expression by Congress that it did not intend to provide protection against discrimination directed especially toward black women as a class separate and distinct from the class of women and the class of blacks, we cannot condone a result which leaves black women without a viable Title VII remedy.”

“It is clear from the foregoing cases that an employer may not single out black women for discriminatory treatment. […] Recognition of black females as a distinct protected subgroup […] is the only way to identify and remedy discrimination directed toward black females. Therefore, we hold that when a Title VII plaintiff alleges that an employer discriminates against black females, the fact that black males and white females are not subject to discrimination is irrelevant […].”

(pp. 1032-1034; emphases mine).

It is worth contrasting these quotes with some of Crenshaw’s sweeping allegations:

“[…] the boundaries of sex and race discrimination doctrine are defined respectively by white women’s and Black men’s experiences. Under this view, Black women are protected only to the extent that their experiences coincide with those of either of the two groups. Where their experiences are distinct, Black women can expect little protection […]” (p. 143 of the article; emphasis mine).

And, again:

“Notions of what constitutes race and sex discrimination are […] narrowly tailored to embrace only a small set of circumstances, none of which include discrimination against Black women.” (151; emphasis mine)

As readers can now fully appreciate, these allegations are patently false.

Intersecting oppressions, subordination, or disadvantage?

As mentioned above, there is no reason to suppose that claims about the way legal categories intersect, or should intersect, to create various “multiple-axes” categories—even if those are useful for the pragmatic aim of adequately adjudicating claims of discrimination in legal proceedings—should tell us much about the nature of things such as social groups (specifically, whether and how they “intersect” to create new socially significant subgroups), the experiences of group members (for instance, whether the experiences of black women are systematically different to those of black men), and the nature of things such as oppression or subordination.

Specifically, it is important to highlight that despite the general trend of Crenshaw’s article—where broad claims about the nature of oppression, disadvantage, etc., are made largely based on (purported) observations about anti-discrimination doctrine—investigating what things such as oppression are, and whether or not different forms of oppression “intersect” or “interlock” to generate qualitatively different and worse (“compounded”) forms of oppression, would have to involve a substantial empirical component. And, of course, the answers to these questions could be much more nuanced than what is suggested in Crenshaw’s discussion: for instance, an “intersectional” group may be more disadvantaged relative to “non-intersectional” groups in one domain (e.g., employment), but less so in another domain (e.g., education), and so forth.

Precisely because of the nuanced and evidence-based character that such discussions should take, it is important to notice that Crenshaw’s broad claims are at least partially undermined, again, by some of the facts presented in the legal proceedings discussed above.

At a minimum, we’ve seen that one of the reasons a new “intersectional” legal claim was needed in Jefferies and DeGraffenreid—that is, the claim that black women were discriminated against as such—was precisely the fact that black men and white women were not discriminated against in these cases. In other words, the setup of the legal claim itself shows that the injustices involved (as opposed to the legal categories) did not tend to “intersect” in those cases, and the claim that discrimination directed against black women is always a “compounded” form of discrimination against blacks and against women does not sit well with them.

The assumption that disadvantages suffered by “intersectional” groups are qualitatively different and worse relative to those suffered by “non-intersectional” groups is undermined by the facts presented in Payne v. Travenol as well. One would assume that if oppression, subordination, or disadvantage necessarily compounded in the way the article suggests, black women would be more disadvantaged, or more discriminated against, relative to black men. But the statistics brought by the plaintiffs in Payne v. Travenol indicate otherwise: while black women suffered more discrimination (relative to black men) in the internal assignment policies of the company, they suffered (slightly) less discrimination as a result of the employer’s candidate screening policy. This stemmed from the fact that the company’s candidate selection criteria were based on educational attainments, and black women were (slightly) less disadvantaged (relative to black men) in that domain (pp. 259-260 of the Trial Court’s decision). Similarly, the Court of Appeals in the same case discusses findings showing that some of the company’s discriminatory policies were less disadvantageous for Black females, compared to Black males (820-821 of the Court of Appeals decision).

Conclusion

Adequately addressing problems of discrimination, inequality, and disadvantage requires a nuanced discussion of complex ethical, legal, and philosophical questions, and a sober evaluation of relevant empirical data. This is not what intersectionality has to offer. Instead, it is a display of legal megalomania: sweeping, unsubstantiated accusations relating to the entire legal system are made based on a tenuous examination of legal materials; broad, all-encompassing theoretical assertions are then put forward based on this flawed legal analysis. All the while, important legal difficulties and questions—careful examination of which is crucial for developing effective anti-discrimination measures, and for protecting people’s most cherished rights—are either ignored or misrepresented. Victims of discrimination, especially those belonging to disadvantaged and multiply-disadvantaged groups, deserve better than that.

This work original ran at the Substack of its author, Rona Dinur.

Rona holds a Ph.D. in (analytic) philosophy from the Hebrew University, Jerusalem, and LL.M. in law from Harvard. She served as a law clerk at the Israeli Supreme Court. Her work on discrimination and inequality has been published in leading philosophy journals, and her analysis of contemporary social justice issues is available on her Substack page:

References

* All of the legal materials referenced here, and most of the academic literature, are easily accessible online (just google the title).

Brown, Nadia E., Guillermo Caballero, Sarah Gershon. “Intersectionality in Political Science”. Oxford Bibliographies, DOI: 10.1093/obo/9780199756223-0327.

Crenshaw, Kimberlé. "Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics." University of Chicago Legal Forum: 139-167 (1989).

De Búrca, Gráinne. "The Trajectories of European and American Antidiscrimination law." The American Journal of Comparative Law 60 (1): 1-22 (2012).

DeGraffenreid v. General Motors, 413 F. Supp. 142 (E.D. Mo. 1976).

Griggs vs. Duke Power Co., 401 U.S. 424 (1971).

Jefferies v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir. 1980).

Lippert-Rasmussen, Kasper. Born Free and Equal? A Philosophical Inquiry into the Nature of Discrimination (Oxford University Press, 2013).

McWhorter, John. Woke Racism: How a New Religion Has Betrayed Black America (Portfolio: Penguin, 2021).

McWhorter, John. The Church of Wokeism. YouTube interview with Philosophy Insights channel, available here.

Moore v. Hughes Helicopters, Inc., 708 F.2d 475 (9th Cir. 1983).

Payne v. Travenol Laboratories, Inc., 416 F. Supp. 248 (N.D. Miss. 1976).

Payne v. Travenol Laboratories, Inc., 673 F.2d 798 (5th Cir. 1982).

Rutherglen, George. "Disparate Impact, Discrimination, and the Essentially Contested Concept of Equality." Fordham Law Review 74 (4): 2313–2338 (2006).

1

I put “theory(s)” in scare quotes here because, similarly to other works associated with the “Critical Legal Studies” genre, intersectionality is, well, not really a theory. It’s also not really critical, and its usage of the term “framework” (as in “theoretical framework”, or “analytical framework”) is highly misleading. Essentially, what the terms “theory” and “framework” actually refer to when used in this context is a dogma, not all of these things. I might address these issues in a separate essay.

2

Employers do have the opportunity, in the course of the trial, to show that their policy doesn’t unfairly discriminate despite having a disparate negative impact on protected groups, but I’ll set this complication aside here.

3

Specific quotes can be found at, e.g., pages 139-140, 152.

4

Needless to say, laws and formal policies routinely employ all kinds of categories. Tax laws divide people into tax brackets according to (say) their income, property laws divide different assets into taxable and non-taxable items, and municipal laws divide parking slots according to the times of day when you’re allowed to park in them. Of course, it would be bizarre to extend Crenshaw’s logic about legal categories necessarily having such a tight relationship with the extra-legal reality to other legal areas. Imagine claiming, on the same lines as her argument, that parking regulations influence the metaphysical nature (or political dynamics!) of parking slots, or that tax brackets correspond to the nature of, well, people that fall within them, in the same way that she posits with respect to the relationship between categories used in anti-discrimination law and social groups, or systems of oppression, or political dynamics between various groups, etc.

5

As an aside, no one treats race and gender (in societies where race is a significant social category) generally as mutually exclusive categories, or, at least, as wholly mutually exclusive across the board. No one does that, because they can’t be mutually exclusive—presumably, everyone has both!

6

Perhaps contrary to a common perception, this data typically doesn’t include general population statistics, e.g., comparing the company’s racial makeup to that of the general population or the local population where the company is located (although such data may be used in particular circumstances).

7

See discussion in Moore v. Hughes Helicopters, Inc., 708 F.2d 475 (9th Cir. 1983), p. 480, and below.

8

For reasons that will become clear below, I examine the legal cases not according to the original order in which they appear in the article.

9

708 F.2d 475 (9th Cir. 1983).

10

416 F. Supp. 248 (N.D. Miss. 1976).

11

In 673 F.2d 798 (5th Cir. 1982).

12

She appears to do so because highlighting that black males and black females might have conflicting interests runs counter to the article’s general trend, where she tries to argue that the appearance of such conflicts is illusory, and would magically disappear if only the “dominant”, “single-axis” way of thinking was rejected, and “intersectionality” was embraced. She later extends this logic to various political and social struggles, including, most notably, anti-rape campaigns pursued by Black women. (See, e.g., p. 143, 149, 162).

13

413 F. Supp. 142 (E.D. Mo. 1976).

14

See also the discussion in Jefferies v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir. 1980), footnote 7 at p. 1035.

15

615 F.2d 1025 (5th Cir. 1980).