Theories of Law and Race: Intersectionality and CRT

Question 1

• Social construction of race/racialization

Answer 1

• This can be defined as the process that occurs in society in which we create the idea of race and what it means to be a part of each racialized group. This often manifests itself in stereotypes.
• It is largely based on context and the events occurring in the world at a specific time, which is why the associations and stereotypes regarding each different racial group are dynamic and change over time.
• This process ignores individual people’s identities and sees them as part of the collective race (ignores differences and intersectionality of their identities)
• Suggests race is not biological and not about the colour of your skin, it is about the attitudes people have towards people with different racial backgrounds

Question 2

Colorblind/formal equality

Answer 2

Treating all people in the same way regardless of race because it is believed this is equated with neutrality and fairness for all

• This concept is challenged by critical race theorists because they claim that ignoring race all together ignores the barriers that racialized people face that white people do not face
• Ignores the idea that racialized people SHOULD be treated differently to be able to have the same opportunities as white people
• Demonstrates the existence of intersectionality and increased discrimination for people
  whose identities differ from the “dominant” group
• Demonstrates the hierarchical structure of society
• Racism is systemic and making the law completely neutral does not fix the implicit
  racism that continues to exist in society on the form of stereotypes and negative attitudes towards racialized minorities.
• Colourblindness is formal equality, looking for substantive equality

Question 3

Interest convergence/material determinism

Answer 3

• “interest convergence” argues that law changes when it is in the best interest of the people in power. Derrick Bell, a realist of critical race theory, proposes the apparent interest convergence following the case of Brown v. Board of Education. Bell proposed that the positive outcome of this case was the result of the self-interest of those in power, instead of a desire to eradicate the discrimination of black individuals Since Bell proposed his idea of “interest convergence, critical race theorists apply it to understand the legal history of minorities.
• “material determinism,” states that laws change as a result of the interest of those with power. The dominant groups in society racialize minority groups at different times in response to shifting needs, including the labour market. Hodes discusses that the Lockean concept of identity reproduces essentialism and epistemic violence The racialization of minority groups in the labour market is evident amongst the planters and ranchers in Texas and the Southwest because by viewing the Mexicans as inferior, it was a justification to take over Mexican lands. Thus, comparable to interest convergence, material determinism notes that discrimination of groups shift in periods where they become “valuable” for those in power.

Question 4

Intersectionality

Answer 4

• Intersectionality is a concept often used in critical theories to describe the ways in which oppressive institutions (racism, sexism, homophobia, transphobia, ableism, xenophobia, classism, etc.) are interconnected and cannot be examined separately from one another.
• All “intersect” with one another
• Looks at how different factors can overlap to create disadvantages for racialized groups.
• Intersectionality advocates for the analysis that recognize interlocking systems of oppression (Hodes, 2017)
• Carol Aylward, “Intersectionality is an offshoot of Critical Race Theory which originated with the Black and other scholars of colour who felt that existing legal discourse, including Critical Legal Studies discourse, was alienating to all people of colour.” (as cited in Hodes, 72).
• Kimberle Crenshaw Ted Talk: Looks at how black women are oppressed not just by their race but also by their gender. One cannot just fight racism but must deal with sexism, classism, and homophobia together to make the world better.
• Gender also intersects with race to produce qualitatively different experiences of discrimination for both male and females of certain races (Hodes, 2017).
• Intersectionality takes into considerations all factors and Delgato believes we should “look to the bottom” to relieve the stress of the groups that are the poorest and worst off and this will make it better for everyone else (Delgato, 2017). If one deals with issues with those at the bottom, such as a poor black disabled female, they will be helping alleviate the discrimination of all the categories they are a part of at once rather than just dealing with one at a time.

Question 5

Anti-essentialism

Answer 5

• Hodes discusses that the Lockean concept of identity reproduces essentialism and epistemic violence
• Closely related to differential racialization—the idea that each race has its own origins and ever-evolving history—is the notion of intersectionality and antiessentialism.
• without carefully examining the Lockean foundations of the concept of identity itself, the use of intersectionality in the context of anti-discrimination law will continue to reproduce the essentialism and epistemic violence that intersectional resistance initially sought to disrupt.

Question 6

Identity

Answer 6

• Hodes discusses intersectionality by examining the Lockean foundations of the concept of identity. Intersectionality argues that anti-discrimination laws have predetermined identity categories as listed grounds
• without carefully examining the Lockean foundations of the concept of identity itself, the use of intersectionality in the context of anti-discrimination law will continue to reproduce the essentialism and epistemic violence that intersectional resistance initially sought to disrupt
• In the context of Canadian anti-discrimination law, the grounds approach provides a structural container that disciplines identity into a formulaic
  grid that is populated by a series of fixed and unchanging characteristics.
• identity and the many categories used to describe it are the focus and they become sets of immutable physical characteristics that reduce all experience to that which can be articulated through the grounds. Identity thereby becomes a concrete fact of being.