Nasar Meer, Therese O’Toole, Stephen H. Jones, Dan Nilsson DeHanas, Tariq Modood
This article features in Public Spirit’s special theme on Equalities and Religious Difference
With discrimination law having undergone major changes over the last decade, new possibilities have emerged to recognise the complex interaction between inequalities rooted in religion, race and gender. Yet recently, rather than addressing multiple layers of discrimination, a risk has surfaced that we could roll backwards, undermining hard-won victories.
High water marks
The last decade has seen a ‘policy ferment’ in the area of anti-discrimination in ways that have tried to address the ‘multidimensional nature of equality and inequality’. The idea that inequalities can be the outcome of a complex relationship between different group characteristics (gender, ethnicity, religion and so on) has become widely accepted. Perhaps a high water mark came with the introduction of The Equality Act 2010. Variously deemed ‘a major landmark in the long struggle for equal rights’, and considered to be an advance on anything elsewhere in the European Union, the QC and legal scholar Bob Hepple points to four key milestones in how the Act was configured that warrant such accolades. These included: (i) integrated perspective of equality law that is promoted by a harmonized (single) Equality body, namely the Equality and Human Rights Commission (EHRC); (ii) consistency in definitions of discrimination, harassment and victimization across different ‘grounds’ (i.e., identity categories of age, sex, ethnicity, religion, disability, sexuality and human rights); (iii) the extension of ‘positive duties’ which proactively promote equality in public authorities across all characteristics (including socio-economic inequality); and (iv) expanding the application of how ‘positive action’ is practiced (not to be confused with ‘positive discrimination’).
“Faith groups have benefited from an obvious ‘catching-up’ of religion with the existing anti-discrimination provisions in re-lation to race and gender.”
There is much more on this Act – including its uneven development and application – than can possibly be discussed in this article, and so in what follows we explore the policy ferment through a narrower focus. In our report Taking Part we detailed how Muslim participation in contemporary governance has been significant in driving an increased recognition of religious, alongside other, difference and disadvantage within equalities discourse and policy. We especially traced how for Muslim actors a key issue of citizenship was their ‘exclusion from the existing equality framework’, and one of our observations was that across the period our research was concentrated, tackling religious discrimination was incorporated through policy innovations around intersectionality. The broader benefit for faith groups was an obvious ‘catching-up’ of religion with the existing anti-discrimination provisions in relation to race and gender, something that itself reflected a deepening appreciation by policy makers of the role of faith as a social category in equalities debates. As Jack Straw told us:
[T]he difference that struck me, going back 20 or 30 years ago, was that people can’t change their race; I mean they’re born to it. They can technically change their faith. However, my, sort of, more mature reflection is that their faith is as embedded a part of what they’re born into as the colour of their skin.
Of course, policy action on religious discrimination was also motivated by European Equality Directives which came into force during Labour’s second term, and which required further legislative amendments, including a wholesale review of discrimination legislation undertaken in 2004. According to Barbara Cohen, then Chair of the Discrimination Law Association, it was widely understood that ‘another review of discrimination law was unlikely to happen again for a long while’ and that this presented the opportunity ‘as a bare minimum to harmonise some quite disparate pieces of legislation’. There is a convoluted history as to what this review initiated: before the 2010 Act, the Equality Bill (released in May 2008 and sent for consultation in July) combined all UK equality enactments so as to provide comparable protections across each equality ground. Those explicitly mentioned in the previous 2006 Equality Act (which created the EHRC) included age; disability; gender; proposed, commenced or completed gender reassignment; race; religion or belief; and sexual orientation. This Act was presented as a blend of traditional non-discrimination obligations, substantive equality goals around equal participation, and statutory duties to promote respect for diversity, human dignity and human rights. It was particularly noteworthy because it was the first occasion on which equality and diversity were expressly tied together.
“It was widely understood that another review of discrimination law was unlikely to happen again for a long while.”
Despite all of this, it is striking that in the final 2010 Equality Act there is only a partial commitment to intersectionality in so far as principle 12 allows multiple discrimination but only on two grounds, each of which have to be claims of direct discrimination (rather than harassment or indirect discrimination). According to Bob Hepple this reflects a concession to the business lobby ‘who opposed any provision on multiple discrimination’ on the ground that it would become “unduly burdensome” to business’; perhaps an early indicator of contemporary roll-back discussed below. How much then has the policy ferment of the last decade lived up to the promise of innovations in intersectional thinking, and what implications did this have for tackling discrimination on religious grounds?
What did the intersectionality agenda promise?
Even though the British case is notable for giving space to religion within it, the debate on intersectionality does not commence with British Equality legislation and it is worth adopting a longer perspective to reflect on contemporary policy. In theory, some of the broad theoretical contours of intersectionality have been shaped by a relatively small number of authors who seek to bring different dynamics into focus. From a perspective of Critical Race Theory in particular, Kimberlé Crenshaw initially proposed the concept ‘to grasp the ways in which the interactions of gender and race limit black women’s access to the US labour market, and how a lack of understanding of this intersection marginalises black women and black women’s experiences’. In her own words, Crenshaw describes how intersectionality:
[G]rew out of trying to conceptualize the way the law responded to issues where both race and gender discrimination were involved. What happened was like an accident, a collision. Intersectionality simply came from the idea that if you’re standing in the path of multiple forms of exclusion, you are likely to get hit by both.
Such discrimination, she maintained, could not be explained in terms of ‘the traditional boundaries of race or gender discrimination as these boundaries are currently understood’, because ‘women of colour can be erased by the strategic silences of anti-racism and feminism’. So neither the category of ‘black’ nor the category of ‘woman’ is sufficiently capable of speaking to and redressing the discriminatory experiences of black women. To her, ‘the failure of feminism to interrogate race means that resistance strategies of feminism will replicate and reinforce the subordination of people of colour, and the failure of antiracism to interrogate patriarchy means that antiracism will frequently reproduce the subordination of women’.
“Neither the cate-gory of ‘black’ nor the category of ‘woman’ is suffi-ciently capable of speaking to and redressing the dis-criminatory expe-riences of black women.”
In many respects the approach of Crenshaw retains something of what Sandra Harding has termed the additive approach, which doesn’t adapt to specific social and political conditions so much as follow a general rule-of-thumb: ‘add women and stir’. In contrast, Nira Yuval-Davis encourages us to pursue what she terms a ‘transversal politics’. She elaborates: ‘One cannot assume the same effect or constellation each time and, hence, the investigation of the specific social, political and economic processes involved in each historical instance is important’. What then are the paths through which we can pursue this kind of transversal politics? In one reading, Leslie McCall seeks to distinguish between three related strands. The first she describes as ‘intra-categorical’ which centres ‘on particular social groups at neglected points of intersection … in order to reveal the complexity of lived experience within such groups’. The objective here is to make visible group dynamics that were previously invisible. The second strand, ‘anti-categorical’, is ‘based on a methodology that deconstructs analytical categories’. This involves a critique of the idea of identity as unchanging. Her final, ‘inter-categorical’ reading of intersectionality, ‘provisionally adopt[s] existing analytical categories to document relationships of inequality among social groups and changing configurations of inequality among multiple and conflicting dimensions’. This latter formulation is her preferred means of reconciling identity and social structures because it sees both as mutually constituting, and emphasizes change over time as well as between sites and institutions. This is not radically different to Iris Marion Young’s view that we should be able to ‘retain a description of social group differentiation, but without fixing or reifying groups’.
It is not clear however how easily religious identity fits into these configurations of intersectionality. When we reflect upon prevailing debates that disproportionately impinge on the intersection of two minority identities, gender and Islam, we often find the operation of a hierarchy which places ‘Muslim women’ outside of traditional coalitions of anti-discrimination activists, not least when this centres on debates about veiling practices. This is profoundly unfortunate as it is precisely when such questions are raised that intersectionality, in both legal and wider equality discourse, should kick into force. This is not least because the visibility of religious groups – especially of the display of what are sometimes termed ‘contested signifiers’ in terms of dress and appearance – is frequently the means through which this discriminatory feeling is turned into discriminatory behaviour.
A good European-wide illustration of what we mean may be found in the summary report on Islamophobia published by the European Monitoring Centre on Racism and Xenophobia shortly after 9/11. This identified a rise in the number of ‘physical and verbal threats being made, particularly to those visually identifiable as Muslims, in particular women wearing the hijab’. What is of particular note is that despite variations in the number and correlation of physical and verbal threats directed at Muslim populations among the individual nation states, one overarching feature that emerged among the fifteen EU countries was the tendency for Muslim women to be attacked because of how the hijab signifies an Islamic identity.
During the consultation on harmonising different equality bodies and different equality legislation, a concern that was repeatedly voiced drew attention to the risk of rolling back previous equality achievements. In particular, there was a fear that even if there was not immediate ‘dilution’ and settlements were ‘levelled up’ across different grounds, when separate commissions were no longer able to publically agitate for equality on specific grounds, and when legislation became streamlined, a less favourable political administration in more cash-strapped times would encounter less resistance if they moved to undermine existing settlements. Gary Craig and Maggie O’Neil have recently pointed to precisely these developments. For example, they observe that budget of the harmonised EHRC was quietly reduced by the coalition administration to the equivalent of less than one of its constituent bodies (from £70m when it started in 2007 to £17m presently). They also highlight how statutory equality impact assessments have been discontinued. Moreover, early this year the Home Secretary Theresa May announced a review of the public sector equality duty in the government’s ‘red tape reduction challenge’. Hepple has argued that this is being pursued to ‘appease the anti-EU lobby by refusing to “gold plate” equality law beyond the minimum obligations under EU law’.
Britain has typically gone beyond minimal equality legislation through innovations such as the public sector equality duty, and so the recent report by the Independent Steering Group on the Public Sector Duty marks an ominous development, especially their description of ‘useless bureaucratic practices which do nothing for equality’, concluding that ‘Equality is too important to be tied up in red tape. Let’s cut it out’. Taken together these developments point to the opposite trajectory for religion to the kinds of mainstreaming that others ‘grounds’ have historically achieved. While the introduction of religion through intersectional approaches marks an advance on what went before, it has also endowed it with an uncertainty, added to which it faces a more precarious future for a further reason. As we discussed in our report, this may be summed up in Lord Anthony Lester’s opposition to the inclusion of religion in the same register of anti-discrimination, because ‘it would be divisive and unworkable‘. If one of the objectives of equality legislation is to arrive at workable and genuinely intersectional configurations of antidiscrimination, then we need to overcome approaches and sentiments that promote a hierarchy of grounds.
Nasar Meer is Reader in Social Sciences and Co-Director of the Centre for Civil Society and Citizenship at the University of Northumbria.
Therese O’Toole is Senior Lecturer in Sociology at the University of Bristol and is Principal Investigator on the Muslim Participation in Contemporary Governance project. Her academic work has focused on ethnic minority political engagement and participatory governance.
Stephen H. Jones is Research Assistant in the Centre for the Study of Ethnicity and Citizenship at the University of Bristol and one of the editors of Public Spirit. He is a sociologist of religion specialising in Muslims and Islam in Britain.
Daniel Nilsson DeHanas is Research Fellow at the University of Kent. Until 2012 he was Research Associate on the Muslim Participation in Contemporary Governance project. His sociology research has focused on post-migration reli gion and politics.
Tariq Modood is Professor of Sociology, Politics and Public Policy at the University of Bristol, founding Director of the university’s Centre for the Study of Ethnicity and Citizenship and founding editor of the journal Ethnicities.
 McLaughlin, E. (2007: 49) ‘Introduction: Themed Section on Equality’ Social Policy & Society, 6 (1), 49-51
 Hepple, B. (2011) The New Legal Framework. Hart Publishing.
 Meer, N. & Modood, T. (2011) ‘The multicultural states we’re in’, in A. Triandafyllidou, T. Modood & N. Meer (eds), European Multiculturalism(s): Cultural, Religious and Ethnic Challenges. Edinburgh University Press.
 See Hepple, B. (2010) ‘The New Single Equality Act in Britain’, The Equal Rights Review, 5, 11-24.
 Therese O’Toole et al., Taking Part: Muslim Participation in Contemporary Governance (Bristol: University of Bristol, 2013).
 Modood, T. (2009: 485) ‘Ethnicity and Religion’, in Flinders, M., A. Gamble, C. Hay & M. Kenny (eds), The Oxford Handbook of British Politics, Oxford University Press.
 Chaney, P. (2013) ‘Mainstreaming intersectional equality for older people? Exploring the impact of quasi-federalism in the UK’, Public Policy and Administration, 28 (1), 21-42.
 Quoted in Meer, N. (2010) ‘The impact of European Equality Directives upon British Anti-Discrimination Legislation’, Policy & Politics, 38(2), 197-215.
 See Meer (2010) for a full discussion of the build up to this legislation.
 See in particular s.3 of the 2006 Equality Act.
 See especially s.8(1) and (2) of the 2006 Equality Act.
 Hepple (2010: 16)
 For example Anthias, F. and Yuval-Davis, N. (1983) ‘Contextualising Feminism: Gender, Ethnic and Class Divisions’, Feminist Review, 15, 62-75
 See the discussion of Intersetionality in Meer, N. (2014) Race and Ethnicity. London: Sage.
 Crenshaw, K. (1991) Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color, Stanford Law Review, Vol. 43, No. 6., pp. 1241–1299.; Crewnshaw, K. (1989) ‘Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law’, 101 Harvard Law Review 1331-87 (1988). Reprinted in Critical Legal Thought: An American-German Debate (edited by Christian Joerges and David M. Trubek, Nomos, 1989).
 Walby, S., Armstrong, J., and Strid, S. (2012) Intersectionality: multiple inequalities in social theory, Sociology, 46(2), 224-240.
 Crenshaw, K. (2004) ‘Intersectionality: The Double Bind of Race and Gender’, interview with Kimberlé Crenshaw, American Bar Association, spring 2004. p. 2
 Crenshaw (1991: 1244, 1253).
 Ibid. 1252
 Harding, S. (1991) Whose Science? Whose knowledge? Ithaca, NY: Cornell University Press. p. 212
 Yuval-Davis, N. (2006) ‘Intersectionality and Feminist Politics’, European Journal of Women’s Studies, 13 (3), 193-204. P. 20
 McCall, L. (2005) ‘The Complexity of Intersectionality’, Journal of Women in Culture and Society, 30 (3), pp: 1771–1800
 Young, I. M. (2000) Inclusion and Democracy. New York: OUP. p. 89
 See Weller et al., (2013) A Decade of Continuity and change in Region, Belief, Discrimination and Equality. University of Derby and AHRC-ESRC.
 Dwyer, C., & Modood, T. (2010) ‘Embodying Nationhood? Conceptions of British national identity, citizenship and gender in the ‘veil affair’,’ The Sociological Review, 58(1), 84-111.
 Allen, C. and Nielsen, J. (2002) Summary Report on Islamophobia in the EU15 after 11 September 2001, Vienna: European Monitoring Centre for Racism and Xenophobia. p.16.
 Ibid. 35
 This is discussed in Meer (2010).
 Craig, C. And O’Neil, M. (2013) ‘It’s time to move on from ‘race’? The official invisibilisation of minority disadvantage’, Social Policy Review 25, pp: 93-112.
 Hepple, B. (2013) ‘Why is the British Coalition Government Undermining the Equality Act and What Can be Done?’. http://ohrh.law.ox.ac.uk/?p=1093&goback=.gmp_4507058.gde_4507058_member_215871016
 The Government Equalities Office (2013) Review of the Public Sector Equality Duty: Report of the Independent Steering Group. London: HMSO, p. 7.
The image of Jack Straw is included courtesy of Chatham House and is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic License. The image of Muslim women in London is included courtesy of Kamyar Adl and is licensed under the Creative Commons Attribution-Share Alike 2.0 Generic License.