On Uses, Mis-Uses and Non-Uses of Intersectionality Before the European Court of Justice (ECJ): The ECJ Rulings Parris (C-433/15), Achbita (C-157/15) and Bougnaoui (C-188/15) as a Bermuda Triangle?

Abstract

Intersectionality, frequently used by political scientists (Walby & Verloo, 2012) sociologists (Winker & Degele, 2011) and anthropologists (Hancock, 2015) as a highly abstract concept, originated as a critique of US courts’ ignorance of discrimination against black women specifically (Crenshaw, 1989). That ignorance emerged in cases such as DeGraffenreid, in which the claimants challenged a collective redundancy scheme resulting in dismissing most black women on grounds of indirect discrimination. The court refused to recognise black women as a category of relevance and did not find any discrimination be-cause the scheme did not impact disproportionally on white women or black men. This paper discusses three ECJ rulings decided between 24 November 2016 and 14 March 2017, which similarly failed to acknowledge intersectional discrimination, thus inviting national courts to deny recognition and adequate remedies to claimants. The first case concerning the pension claims of two white homosexual men (Parris, C-443/15) can be qualified as the Court’s “DeGraffenreid moment” because it refused to recognise discrimination in a case where the intersection of being over 63 and homosexual was the basis of exclusion from a survivor’s pension, while neither age nor sexual orientation in isolation were the reason of that exclusion. The two more recent cases (Achbita, C-157/15, Bougnaoui C-188/15) seem to constitute instances of surprising ignorance of racializing Muslim women through penalising them for wearing a headscarf: The Court, following its AGs, refused to protect women against dismissal on grounds of that garment on the basis of extensive justifications for religious discrimination, thus ignoring a pervasive exclusion on the intersection of gender and ascribed race. The article criticises all three rulings with a twofold argument. First, it is submitted that anti-discrimination law should and can recognise intersectional discrimination without losing its focus by a reconceptualization around the nodes gender, race and disability. Second, it is argued that EU anti-discrimination law can be interpreted to encompass this concept by using a purposive interpretation.