Intersectional Discrimination by Shreya Atrey (review)

It has been thirty years since legal scholar Kimberlé Williams Crenshaw coined the term "intersectionality" as a metaphor for understanding the individual and structural complexities of discrimination based on multiple identities,¹ which American anti-discrimination law could not grasp.² Since then, it has become a buzzword across disciplines and in popular discourse.³ However, notwithstanding its origins and subsequent proliferation, intersectionality has not significantly transformed antidiscrimination law. The result is that, in Canada and beyond, discrimination continues to be widely understood and adjudicated on the basis of single, identity-based categories or grounds of discrimination (that is, sex, race, disability, sexual orientation, and so on).⁴ Indeed, the Supreme Court of Canada has never adjudicated a discrimination claim based on multiple grounds, despite alluding to the possibility of intersectional claims under the equality provision of the Canadian Charter of Rights and Freedoms⁵ and receiving submissions by parties and intervenors on the significance of an intersectional approach.⁶

In Intersectional Discrimination, Shreya Atrey, professor of international human rights law at Oxford University, attempts to close the gap between the ascendance of intersectionality theory and the persistence of single-axis frameworks in anti-discrimination law, asking: "[H]ow can discrimination law practice be reimagined to realize intersectionality?"⁷ Atrey takes an expansive approach to this question, grounded in the varied experiences of several common law jurisdictions in attempting to operationalize intersectionality in law, including Canada. The result is a comprehensive account of the interconnected theoretical, conceptual, and doctrinal transformations required to incorporate intersectionality into the theory and practice of anti-discrimination law. In mapping out the necessary changes, Intersectional Discrimination makes a number of important contributions to the literature on intersectionality and anti-discrimination law.

First, Atrey canvasses the scholarship on intersectionality in order to distill a working understanding of the term. This is no small task. The "burgeoning field of intersectionality studies" includes a truly enormous, sometimes esoteric, body of work on intersectionality.⁸ Yet Atrey seamlessly draws together a critical mass of English-language scholarship on intersectionality,⁹ including foundational and contemporary literature, key critiques of intersectionality, responses to those critiques, and applications across contexts. Acknowledging the impossibility of a singular account that perfectly captures the "tremendous heterogeneity" in how intersectionality is defined and applied,¹⁰ Atrey identifies the "intellectual core" of intersectionality as consisting of five elements: "[T]he attention to both sameness and difference … in relation to patterns of group disadvantage … considered as a whole or with integrity … in their full context … with the purpose of furthering broadly conceived and transformative aims."¹¹ This characterization forms the theoretical basis for her analysis.

Second, connecting this understanding of intersectionality to the practicalities of adjudicating legal claims of discrimination, Atrey offers a granular account of the wide-ranging changes that need to be made to anti-discrimination doctrine. Many readers will be familiar with intersectionality's critique of single-axis frameworks and the corresponding calls for change in how grounds are understood and employed in anti-discrimination law.¹² However, Atrey's analysis goes much further, demonstrating that grounds are not the only—and perhaps not even the most important—stumbling block to operationalizing intersectionality in anti-discrimination frameworks. Following a careful review of select case law across jurisdictions,¹³ Atrey finds that virtually all of the central tools of anti-discrimination law, including "the text of legislative and constitutional non-discrimination guarantees, the grounds of discrimination and test for identifying analogous grounds, the understanding of direct and indirect discrimination, the substantive meaning of discrimination, comparators, the standard of review, justifications, the burden of proof, and remedies" require fundamental recalibration in order to make claims of intersectional discrimination intelligible.¹⁴

Third, in establishing a framework for the transformation of anti-discrimination law, Intersectional Discrimination centres the structural dimensions of intersectionality. In doing so, it promotes a shift away from prevailing understandings of intersectionality as concerned primarily, or even solely, with the proliferation of overlapping identities.¹⁵ Indeed, to date, where intersectionality has been taken up by Canadian courts and...