Intersectionality and the notion of disability in EU discrimination law

Abstract

Defining the characteristics targeted by banning discrimination constitutes a central challenge for EU discrimination law, and defining disability is particularly challenging due to the dispute around the very concept of disability. From 2006, the ECJ has wrestled with this definition in six judgments, five of which were delivered as of 2013. Instead of classifying the case law definition as conforming to a medical or social model of disability, this article analyses the case law with a view to illustrate challenges of defining discrimination grounds generally, suggesting that a sufficiently precise and non-exclusive definition of discrimination grounds can be achieved by re-focusing EU discrimination law around the nodes of sex, race and disability. The analysis exposes that the ECJ definition of disability neither complies with the UN CRPD nor adequately responds to intersectionality theory, for example because the definition is exclusionary in relation to female experience of disability.