Issues Paper
Gender and Race Intersectionality
"The idea of "intersectionality" seeks to capture both the structural and dynamic consequences of the interaction between two or more forms of discrimination or systems of subordination. It specifically addresses the manner in which racism, patriarchy, and economic disadvantage and other discriminatory systems contribute to create layers of inequality that structures the relative positions of women and men, races and other groups. Moreover, it addresses the way that specific acts and policies create burdens that flow amongst these intersecting axes contributing effectively to create a dynamic of disempowerment".
Gender
and racial discrimination, Report of the Expert Group Meeting
21-24 November 2000
Zagreb, Croatia
Prepared for consultations for the World Conference Against Racism
Human Rights and Equal Opportunity Commission 2001
A. Introduction
This paper has been written by the Human Rights and Equal Opportunity Commission ("HREOC") in preparation for consultations towards the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance to be held in South Africa in August/September 2001.
Through this paper, HREOC recognises that there are ongoing problems of discrimination against racially disadvantaged women[1] that need to be identified, spoken about and addressed by the international and domestic human rights systems. However, HREOC also recognises that there are systemic and analytical problems in the approach to gender and race intersectionality that also need to be thought through if the human rights system is to adequately deal with the experience of race and gender inequalities.
By intersectionality, we refer to the connection between aspects of identity, particularly race and gender. An intersectional approach asserts that aspects of identity are indivisible and that speaking about race and gender in isolation from each other results in concrete disadvantage. In Australia, race and gender intersectionality includes the experiences of women from non-English speaking backgrounds (NESB women) and Indigenous women.
Our approach to intersectionality aims to include all participants in the human rights system and in particular to emphasise that all people have a race and a gender, although race or gender may be obscured where, for example, the race is whiteness or the gender male.
This paper also focuses on the experiences of those people most likely to "fall through the cracks" of current human rights systems: racially disadvantaged women. It is a premise of this paper that the experiences of racially disadvantaged women are qualitatively different from the experiences of racially disadvantaged men or racially privileged women and that these experiences are inadequately addressed in a system set up to recognise gender and race inequalities as distinct.
B. Demographics and the positioning of women in discussions of race
"Identities are fluid and not fixed. At times we all occupy multiple, diverse and contradictory positions". (1a)
The nature of race and gender disadvantage
We are using the terms racially privileged women and racially disadvantaged women to emphasise the experience of privilege/disadvantage, to underscore the idea that racism is contextual rather than an immutable characteristic of identity. Race disadvantage/race privilege will often, but not always, correspond to more common white/black; first world/third world; North/South; coloniser/colonised used in academic and human rights discourse.
Privilege and disadvantage are often experienced together. For example, it is possible to be the recipient of violence at home and be valued at work. It is possible to be positioned as the recipient of racism from parts of the community while participating in it towards other parts of the community.
Women also experience racism as migrants, as refugee women, as Indigenous women, or as women from backgrounds other than English speaking when they are single heads of households, living with disabilities, girl children, lesbian women, young mothers, or older women. Each of these facets of identity can compound the experience of racism.
The experience of race-and-gender discrimination is qualitatively different from race discrimination or gender discrimination. As evidenced by the example below, women often experience discrimination because of their identity as racially disadvantaged women in a way that cannot be understood by thinking about race or gender in isolation.
Fares v Box Hill College of TAFE & Ors (1992) EOC 92-391.
The complainant was from a non-English speaking background. She was employed at a TAFE that was found by the Victorian Equal Opportunity Tribunal to have a pervasive negative attitude towards NESB women over many years.
The complainant and other NESB women in her workplace were thought to be generally more emotional, highly strung, demanding and overly conscientious in their work, long-winded and unable to be concise, holding undue regard for academic qualifications as opposed to practical experience and thus ambitious for themselves.
A statistical overview of women and race in Australia
The section of the Australian population born overseas increased from 10% in 1947 to 24% at June 1999. In 1947, the majority (81%) of the population born overseas were from the United Kingdom and Ireland. By 1999, the proportion of the population from main English Speaking Countries (the United Kingdom, Ireland, New Zealand, South Africa, Canada and the United States) was 39%.[2]
Women from non- English speaking countries have lower English literacy levels rated at speaking English poorly or not at all, than men from similar backgrounds, (21% and 16% respectively).[3] There is little evidence to suggest that English proficiency levels of women from non-English speaking countries change over time to be comparable with men.[4]
The 1996 census revealed significantly different unemployment rates for women according to English proficiency. Women from non-English speaking backgrounds have an unemployment rate of 30%, as compared with an overall 24% for women who were recent migrants irrespective of country of birth, and 8% for all women in Australia.[5]
In the1996 census, levels of education for women over 15 years revealed a significant disparity. 22% of Indigenous women obtained a post school qualification compared with 36% of women in the total population and 26% of Indigenous men.[6] In 1996 60% of Indigenous people said they spoke an Indigenous language at home.[7]
Unemployment rates for Indigenous women as compared to the total population of women reflect a significant problem, at 20% for Indigenous women and 8.3% for women in the general population in a 1999 Australian Bureau of Statistics study.[8] In 1994, the mean annual individual income for Indigenous women aged 15 years and over was $12, 702 compared to $15,124 for women in Australia overall.[9]
There is very little statistical information available identifying Indigenous women, refugee women, and migrant women for comparison purposes.
C. The structure of the human rights and anti-discrimination systems
The human rights framework
From the inception of the human rights system, the principle of non-discrimination on the grounds of race and sex has been recognised.
All of the major treaty documents recognise non-discrimination on multiple grounds, for example:
- The International Covenant on Civil and Political Rights (ICCPR) Article 2(1)[10] and 3;[11]
- The International Covenant of Economic, Social and Cultural Rights (ICESCR) Article 2(2);[12]
- The Convention on the Elimination of all forms of Racial Discrimination (CERD) Preamble and Article 7; [13]
- The Convention on the Elimination or all forms of Discrimination Against Women.[14]
However, while each document acknowledges other forms of discrimination, there is no sense of integration of race and gender, and this leads to problems that we will outline below.
The anti-discrimination framework in Australia
In Australia, international treaties have formed the basis of our federal anti-discrimination and domestic human rights system. The federal Government does not have the explicit power to pass laws on discrimination and relies instead largely on international treaties and the external affairs power of the Constitution. The three major federal anti-discrimination acts, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 are all founded in international agreements.
The "translation" of international treaties into domestic law means that there are significant commonalities between international and Australian human rights systems.[15] Unfortunately, this also means that some of the weaknesses of the international system are replicated in anti-discrimination law.
D. Inadequacies of the human rights system: race and gender
The international human rights system developed in a particular historical context, post World War II Europe and America, and in some ways entrenches the values of that period and place. As a result some of the themes of the human rights system have always worked against a genuine recognition of the experiences of women and people in non-Western and colonised countries. For example, in the human rights system:
- Public harms are privileged over private, yet gendered harm is mostly experienced in the domestic sphere, within the family and "private" communities and relationships;
- Civil and political rights are privileged over social and economic, while racially disadvantaged women suffer disproportionately from social and economic inequality; and
- States, rather than individuals, are the primary actors in the human rights system so that racially disadvantaged women cannot rely on state protection as refugees or asylum seekers, or where their harms may stem from State action.
In addition, the structure of the human rights system creates artificial divisions between race and gender, so that those who experience disadvantage on both grounds may not have their experiences recognised.
The absence of racially disadvantaged women
The effect of setting up human rights structures that deal separately with race and gender is that they are often inadequate for dealing with the intersection of race and gender disadvantage. While there is no explicit claim within the domestic or international human rights system that these aspects of identity-based discrimination are mutually exclusive they are discussed as if they are. That is, race discrimination is generally discussed in relation to men, and gender inequality is discussed in relation to white women. The practical impact of the theoretical underpinnings of human rights law is that the experiences of race-and-gender inequality disappear.
This problem is also replicated in anti-discrimination laws. To make a complaint of discrimination, experiences of racially disadvantaged women have to be re-interpreted as being about sex[16] or race. The following cases illustrate the artificiality of dividing race and sex for racially disadvantaged women.
Dao & Anor v Australian Postal Commission (1987) 162 CLR 317.
Two Vietnamese women made a complaint of discrimination to the NSW Equal Opportunity Commission after being denied employment with Australia Post for failing to meet minimum body weight requirements. They alleged discrimination on the grounds of race and sex.
This case went to the High Court and was decided on an issue of inconsistency of state and federal laws. However, the fact situation demonstrates that racially disadvantaged women may not be able to say that their experience of discrimination is because of race as distinct from sex. The women's body weight was "too low" because they were Asian women. An Asian man or a Caucasian woman may not have been excluded by the rule.
Djokic v Sinclair & Anor (1994) EOC 92-643
A female worker in a meatpacker complained to HREOC after she was harassed and inappropriately touched by her supervisor; called a "stupid wog bitch" by her co-workers for reporting unauthorised work breaks; subjected to rumours that she was sleeping with male co-workers and eventually dismissed.
The Commission described her as "broken in health but not yet in spirit". It found that an abuse of power could constitute sexual harassment but had difficulty finding that the burden of proof was satisfied.
The case shows the difficulty in recognising harm where it has clearly occurred but is based on individual and (supposedly) separate grounds of discrimination: sexual harassment, race-and-sex discrimination may not separately amount to discrimination for the purposes for the law.
Race in conflict with gender
One of the most complex of gender and race issues in the human rights system involves specific cultural practices that cause harm to women. A commonly discussed example in recent years is genital mutilation, which is practiced widely in communities throughout Africa, the Middle East and parts of Asia as well as in smaller communities throughout the world.
Where the standards of a particular race or cultural community are set against the rights of individual women, the human rights system struggles to find a resolution.
Gender in conflict
Another crucial issue is the recognition that women's interests not only differ but may be in conflict. A classic example is the experience of colonialism and the participation, and continuing benefit, of racially privileged women in the suffering of Indigenous women in colonised nations such as Australia.
Racially privileged women may be loath to acknowledge their position of relative power, especially where that power is fragile, hard won and needs to be constantly re-asserted.
In addition, if the experiences of racially privileged women are the measure of gender progress, a distorted picture of gender experience emerges. For example, while many women have reached positions of power and been rewarded with higher status and wealth, these women are disproportionately racially privileged.
The lack of a system to redress absence
The mechanisms to redress gender discrimination are part of the same system that creates the problem. As evidenced by the examples above, the separation of race and gender at a systemic level can create difficulties in adequately addressing cumulative discrimination.
Racially disadvantaged women may also have greater difficulty in accessing remedies because of a range of barriers, including language difficulties, lack of financial resources and lack of access to information about their rights.
E. The growing recognition of intersectionalities for racially disadvantaged women internationally
Racially disadvantaged women have been working to get race-and-gender experiences recognised at a systemic and theoretical level for many years. Some progress has been made in that direction.
For example, there is now an enormous literature on intersectionality, and the various approaches and suggestions are too great to deal adequately with them here. However, the literature falls into the following general categories.
Experiences of racially disadvantaged women
Over the past decade, the experiences of racially disadvantaged women have received greater recognition in the public domain through the proliferation of material written by women based on their own experiences. Theoretical work, including feminist and critical race theory, has been challenged by counter-theories from women of colour, post-colonial theorists and Indigenous women who question many of the assumptions made by racially privileged women and men about their lives.[17]
Making racial privilege visible
The failure of legal and political systems to "hear" the experiences of racially disadvantaged women relies on whiteness remaining invisible. That is, when race is spoken about, race means being Black, Asian, Indigenous or non-white. Whiteness is the "view from nowhere" - the luxury of not having to specify a racial identity, and thus to always be the centre or norm in any discussion.
Some literature has tried to critically analyse whiteness, to make it visible so that it will not retain the unchallenged centre of focus. This literature has been sporadic, mostly confined to academic circles and not widely influential.[18]
It is extremely difficult to get women in decision-making roles, who are mostly white and middle class, to acknowledge their own race and to recognise the part that race plays in gender inequality. In part, this is because the legal and political reform that has benefited these women has come from arguing their case as "women", not as one group of women with distinct race and class interests.
F. Responses to intersectionality in the human rights system
Despite these difficulties, there has been some progress towards recognition of race-and-gender intersectionality.
The following measures have been taken by human rights bodies towards acknowledging race and gender intersectionality.
- In March 2000 the CERD Committee adopted a general recommendation recognising the gender-related dimension of racial discrimination. The recommendation acknowledges that women and men experience and are affected by racial discrimination in different ways and that racial discrimination can be directed at women only or differentially than it does towards men. (18a)
- In June 2000 a special session of the General Assembly made several recommendations relating to the elimination of racial violence against women and girls (18b).
- Beijing Platform
For Action addressed three areas of intersectional racism and sexism;
violence against women; women and armed conflict and the human rights
of women. In relation to asylum seeker, refugee and immigrant women,
the Beijing Platform For Action, [paragraph 46], recognises:
.....that women face barriers to full equality and advancement because of such factors as their race, age, language, ethnicity, culture, religion or disability, because they are Indigenous women or because of other status ... Additional barriers also exist for refugee women, other displaced women, including internally displaced women as well as for immigrant women and migrant women, including migrant women workers.
- The CERD Committee's request that State Parties reports under Article 9 of CERD include gender representation. (18c) A UNIFEM background paper to the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance suggests in its recommendations that the CERD Committee continue this by requesting that each of the articles is gender-sensitive and that all the reports attend to gender and violence aimed at women. [19]
G. Possible responses to race-and-gender inequality
There is a strategic dilemma with respect to international legal structures and women. On the one hand, the attempt to improve the position of women through more generally applicable measures has allowed women's concerns to be submerged by what are regarded as more 'global' issues. On the other hand, the price of the creation of separate institutional mechanisms and special measures dealing with women within the UN system has typically been the creation of a 'women's ghetto', given less power, fewer resources and a lower priority than 'mainstream' human rights bodies.[20]
This same problem exists for racially disadvantaged women. Some of the possible strategies to address intersectional disadvantage include the following:
Specialist bodies
Setting up specialist bodies to deal with racially disadvantaged women does go some way to addressing specific issues. However, by creating specialist knowledge outside of the mainstream, the concerns of such groups may never impact on ultimate decision-making bodies, and will be vulnerable to under funding and lower status.
Mainstreaming
The UN has responded to concern about the marginalisation of women in human rights systems by mainstreaming gender issues. The aim is to integrate gender concerns throughout the UN system and to spread responsibility amongst general UN staff. Some of the problems with mainstreaming are that "gender" is still considered to be synonymous with "women"; work on gender issues still remains with specialist staff and, in practice, mainstreaming has suffered from a lack of commitment and resources. It can also often mean that specialist units are downgraded?
For racially disadvantaged women the recognition of intersectional disadvantage has been even slower to gain ground. Treaty bodies such as CERD have been slow to acknowledge intersectionality and to include gender in concluding observations or general comments.[21]
Radical mainstreaming
Radical mainstreaming would put gender first in any consideration of race issues. The basic principle of radical mainstreaming is that positive recognition of gender is necessary if systemic barriers to acknowledging intersectionality are to be overcome.
By making gender issues the centre of any discussion on race, intersectionality will be recognised first rather than always disappearing from the human rights agenda. Radical mainstreaming has not been attempted in the international or domestic human rights systems.
Questions
- Q1 Which
approaches to race-and-gender inequality are or could be most successful?
- Q2 Are there alternative possibilities for ensuring an appropriate consideration of gender in discussions of racism, racial discrimination, xenophobia and related intolerance?
H. Specific issues
Discussion in this paper is based on an understanding that the experiences of racially disadvantaged women are multiple and diverse. The particular context of race and ethnicity interfaces with sexism in varying ways. The terms Indigenous, migrant and refugee represent an enormous cultural and ethnic diversity, as well as a range of economic backgrounds, class, levels of English literacy, education and skills. Some women will suffer to a greater or lesser extent, and may suffer at some times whilst not at others. Some of the following specific issues may not be relevant at all for some women while others may not have been highlighted. It would be helpful if submissions could refer to a particular context or group of women in submissions.
Some of the following issues have been the subject of specific attention in order to address concerns for racially disadvantaged women. HREOC welcomes comments on the success of any such work.
Language and cultural difficulties in the wider society.
Low English literacy levels, while varying for women from language backgrounds other than English, are nevertheless one of the major causes of concern for immigrant, refugee, and some Indigenous women. A high number of immigrant, refugee and Indigenous women do not receive linguistically and culturally appropriate legal, health, housing, income and social support services. For example, this may effectively deny many Indigenous women in remote and rural areas access to essential community services. For such Indigenous, immigrant and refugee women this acts as a barrier to effective participation in the broader community.
Economics and discrimination at work
Women as a group have historically faced discrimination at work and barriers to gaining employment. As a result, women, and particularly racially disadvantaged women, are more often economically disadvantaged. Low English proficiency together with little knowledge about work conditions position immigrant and refugee women from non-English speaking backgrounds as particularly vulnerable in the workplace. The intersection of gender and race discrimination, low English proficiency, and cultural difficulties reduce the bargaining power of women from backgrounds other than English, particularly in a more deregulated workforce.
Women in decision making
Low participation of women in all levels and all areas of decision making disproportionately emphasises the needs and concerns of men, excluding those of women, particularly racially disadvantaged women.
Women before the law
The law is an area that has traditionally been unrepresentative of women's experiences, concerns and views. This exclusion of women, and particularly racially disadvantaged women, can result in laws that do not recognise thir particular circumstances. Lack of citizenship deprives many asylum seeker women of basic economic, social and cultural rights. Many do not have recourse to domestic remedies because of their status as non-nationals. Mandatory sentencing laws in Australia have disproportionately affected Indigenous women, as compared to the general female population.
Women and Health
Indigenous women and men suffer greater health problems than the broader community, for example suffering reduced life expectancy and producing a higher proportion of low birth weight babies.
The impact of poor working conditions for many racially disadvantaged women can result in chronic injury and ongoing health problems. Employment of women in low status jobs with a high rate of occupational injury add to the pressures of migration and family responsibility, leaving women with greater vulnerability to mental illness. This is particularly the case for refugee women, many of whom may still be experiencing the ongoing traumatic effects their experiences.
Women and poverty
Racially disadvantaged women often do not access services and their experiences may remain hidden to the community. For many racially disadvantaged women facing difficulty in accessing employment and services, the intersection of their gender and race compound these problems and result in greater levels of poverty. It may also place additional pressures on families, again to the detriment of racially disadvantaged women. Newly arrived migrant women must wait two years before receiving access to income support.
Women and violence
Violence affecting women occurs most often in the private sphere, such as domestic violence. Unlike violent crimes perpetrated against men in the public domain, which are clearly recognised by the law, the violence that women experience is often hidden or overlooked. Historically there have been limited remedies for domestic violence and therefore limited recourse and protection for women. While this has been given attention over recent decades, the dimension of race may continue to restrain women's ability to seek redress and protection. Women may not feel safe speaking out against the violence for cultural reasons within their own community or for fear of negative responses from the broader community. Domestic violence may also be exacerbated by experiences of torture and trauma and by the ongoing effects of colonialism and dispossession.
Questions
- Q3 Has this discussion correctly identified issues of concern for racially disadvantaged women in Australia? What more, or what other issues should be highlighted during these consultations?
I. The consultation process
In its consultation process for the WCAR, HREOC makes the following commitments:
- Making the experiences
of racially disadvantaged women central to consideration of issues for
the World Conference Against Racism, rather than an "add-on" to the
experiences of men;
- Listening first to the people with direct experience of gender-and-race discrimination, and only then acting and speaking on what is learned.
Questions
- Q 4 How
can HREOC best realise these commitments?
- Q 5.How would HREOC best proceed to ensure the issues and concerns of racially disadvantaged women are addressed within the WCAR and beyond?
[1] The terms "racially privileged women" and "racially disadvantaged women" are used throughout the paper to distinguish between women who benefit from their racial identity, such as white English speaking women, and women who experience disadvantage because of their race, such as migrant women of colour.
[1a] "Indigenous Immigrant and Refugee Women - A place on the main stage". Speech delivered by former Race Discrimination Commissioner, Chisholm College Lecture, La Trobe University, 1998.
[2] Australian Bureau of Statistics, Australia Now: Population: Country of birth, http://www.abs.gov.au, 2001.
[3] Commonwealth Office of the Status of Women, Women in Australia, Canberra, 1999, 69.
[4] Adriana Vanden Heuvel and Mark Wooden, New Settlers Have Their Say, 1999.
[5] Commonwealth Office of the Status of Women, Women in Australia, canberra, 1999, 69.
[6] Commonwealth Office of the Status of Women, op cit, 71.
[7] Australian Bureau of Statistics, Australian Social Trends 1999 Population - Population Composition: Indigenous languages, http://www.abs.gov.au, 2001.
[9] Commonwealth Office of the Status of Women, op cit, 72.
[10] "Each State Party to the present Convenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Convenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
[11] The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
[12] The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
[13] Refers to the Charter of the United Nations and the Universal Declaration of Human Rights and their commitment to human rights without distinction of any kind.
[14] The preamble refers to the enjoyment of rights "without distinction of any kind."
[15] Compared, for example, with a country such as the United States, where rights are constitutional and do not emanate from international agreements.
[16] The term "gender" has been used in preference to "sex" throughout this paper to acknowledge the fact that sexism arises largely in relation to socially assigned roles rather than biology. However, the term "sex" has been used in this section to reflect the legislative provisions.
[17] See, for example, Bhattacharjee, Annanya, (1997) "The Public/Private Mirage: Mapping homes and undomesticating violence work in the South Asian community," in Alexander and Mohanty (eds) Feminist Geneologies, Colonial Legacies, Democratic Futures, New York, Routledge, 308-329; Bulbeck, Chilla, (1991) "First and Third World feminisms," Asian Studies Review, vol.15, no.1, 77-91; Duclos, Nitya, (1993) "Disappearing women: Racial minority women in human rights cases," Canadian Journal of Women & the Law, vol.6, 24 -51; Ierodiaconou, Mary-Jabe, (1995) "Listen to Us! Female genital mutilation, feminism and the law in Australia," Melbourne University Law Review, vol.20, 562 - 587; Abu-Odeh, Lama, (1992)"Post-colonial feminism and the veil: Considering the differences," New England Law Review vol. 26, 1527-1542.
[18] See, for example, Ruth Frankenberg, White Women, Race Matters: The social construction of whiteness, London, Routledge, 1993.
[18a] Gender and Racial Discrimination Report of the Expert group Meeting, 21-24 November 2000, Zagreb, Croatia, CERD/C/56/Misc.21/Rev3 at 1.
[19] UNIFEM, Integrating Gender into the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Background Paper.
[20] Charlesworth Hilary and Chinkin Christine (2000) The Boundaries of International law: A feminist analysis, Manchester, manchester University Press, 219.
[21] In 1996 the Chairman of the CERD Committee referred to directives to include gender in state parties' reports as "fundamentally misconceived". Quoted in Charlesworth and Chinkin op cit 246.
