ICON Book Review: Intersectionality and Criminology: Disrupting and Revolutionizing Studies of Crime; Intersectional Discrimination

[Editor’s Note: Over the next several weeks, ICONnect will be publishing a series of book reviews that recently ran in ICON (Volume 18, Issue 2: July 2020) on “Law and Gender in the Literature.”]

Hillary Potter. Intersectionality and Criminology: Disrupting and Revolutionizing Studies of Crime.  Routledge, 2015. Pp.  194. £ 34.99 (paperback). ISBN: 9780415634403. £ 115.00 (hardback). ISBN: 9780415634397.

Shreya Atrey. Intersectional Discrimination. Oxford University Press, 2019. Pp.  256. £ 80.00 (hardback). ISBN: 9780198848950.

Reviewed by Arushi Garg

International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 637–643, https://doi.org/10.1093/icon/moaa039

https://academic.oup.com/icon/article/18/2/637/5880172

Rooted mainly in black feminist scholarship and critical race theory, the concept of intersectionality was first articulated by Kimberlé Crenshaw in 1989, who critiqued the tendency in antidiscrimination law, feminist theory, and antiracist politics “to treat race and gender as mutually exclusive categories of experience and analysis.”^[1] Since its initial articulation, intersectionality has become an influential framework for those interested in “account[ing] for multiple grounds of identity when considering how the social world is constructed.”[²] It has inspired an impressive range of scholarship, particularly—though not exclusively—within the humanities and social sciences. In this essay, I review two recent monographs that have urged the use of intersectionality in criminological scholarship and discrimination law, respectively: Hillary Potter’s Intersectionality and Criminology^[3] and Shreya Atrey’s Intersectional Discrimination.[^4] Following a brief critical synopsis of both books, I evaluate the different ways in which they understand intersectionality and the broader project of social transformation that must accompany intersectional work.

Potter creates a compelling argument in favor of using intersectionality in criminological scholarship. She defines intersectionality as “the concept or conceptualisation that each person has an assortment of coalesced socially constructed identities that are ordered into an inequitable social stratum.”^[5] Since using intersectionality involves the study of identities, Potter lays down the foundation of the book by defining social identities including race, ethnicity, sex, gender, sexuality, and socioeconomic class.[^6] She expertly highlights the ways in which each of these is co-constituted by the others. Potter moves beyond dyads or triads of black/white, male/female, men/women, upper class/middle class/lower class and so on, to give us nuanced accounts of how these identity categories have evolved in the context of the United States (US). She highlights how the power structures she discusses have also been instrumental in defining crime, which ultimately is also a social construction.^[7] Following on from this, Potter deftly tracks the long history of intersectional thought, particularly in theorizing and activism by women of Color.^[8] While she uses the oft-cited metaphor of “waves” to describe the evolution of American feminism, she persuasively highlights that organizing by Indigenous, Black, Chicana, and other women of Color does not neatly align with this classification.[^9] These women of Color have their own long history of collectively resisting racism, patriarchy, heteronormativity, and capitalist oppression. Based on this history, Potter distills out her concept of intersectionality—as described above—and develops its understanding as a perspective, a theory, an epistemology, and as a research methodology.^[10] Interestingly, while qualitative research methods that explore more granulated accounts of criminal justice might lend themselves more naturally to an intersectional methodology, Potter equally urges quantitative researchers to realize the potential of intersectionality.[^11] It would be useful to assess how this understanding of intersectionality as methodology would benefit criminologists who do not use empirical methods, such as criminology philosophers.[^12] This is, perhaps, especially important given the very limited engagement of philosophical scholarship with intersectionality.^[13]

In the next chapter, Potter deconstructs the way in which key orthodox criminological theories have failed to deploy an intersectional framework. Based on this analysis she makes three valuable contributions to our understanding of intersectional criminology: (i) that mentioning the identity attributes of research participants is not enough to make the research intersectional without any further engagement; (ii) a criminological theory does not, and should not, have to be applicable universally—across all racial, gender, and other categorizations—to be legitimate; and (iii) intersectionality should be used to understand how structures of advantage (as well as disadvantage) mould the experience of individuals engaging with the criminal justice system.^[14] To put this last point differently, we should not assume intersectionality’s irrelevance in understanding the experience of non-disabled, cisgender, heterosexual White men. In the following chapter, Potter analyzes a selection of studies that have successfully engaged with intersectionality, focusing on substance over form.[^15] Taken together, the research cited in this chapter reinforces the tremendous overlap between victim and offender populations. This overlap leads to damaging consequences for minority populations, where criminal laws are used to solve social problems. She draws specific attention to research that attempts to understand how masculinity is related to offending—a link that has typically been ignored in criminological research.^[16] The contrast between the approach adopted by studies cited in this chapter and the previous one throws the value of an intersectional framework into sharp relief.

In the concluding chapter, Potter sums up the tenets of intersectional criminological research. She stresses the principle of researcher reflexivity or positionality, encouraging scholars to reflect on the power imbalances that may characterize their relationship with research participants.^[17] While her main argument is against the “jungle-book trope”^[18] and the “exoticizing of lived experiences” of marginalized populations,[^19] it is worth remembering that despite the colonial baggage of disciplines such as criminology, there are many different ways for power imbalances to influence the research process. For example, scholars have begun to track the ways in which sexual harassment in the field is a commonplace research experience and fear for many women researchers.[^20] Intersectional reflexivity must make space for the research experiences of marginalized researchers as well. Potter ends by advocating an intersectional praxis, that is, putting theory into practice.[^21]

Atrey understands intersectionality as representing “the dynamic of sameness and difference in patterns of group disadvantage based on multiple identities understood as a whole, and in their full and relevant context, with the purpose of redressing and transforming them.”[^22] She advances the powerful claim that intersectional discrimination is a distinct category of discrimination, which should be legally recognized as such. She argues that recognizing intersectional discrimination in legal terms would entail recalibrating key substantive, evidential, and procedural aspects of discrimination law. Her project is informed by a meticulous comparative analysis of judgments from the US, the United Kingdom (UK), Canada, South Africa, the European Union, the Council of Europe, and the jurisprudence of the United Nations treaty bodies. Indeed, the book begins with a helpful overview of how a claimant experiencing intersectional discrimination might fare in each of these jurisdictions, revealing the limits of extant legal regimes.[^23] This sets the stage for Atrey’s bold attempt to bridge the gap between discrimination law and intersectionality.

In Chapter 2, Atrey develops her theory of intersectionality, as outlined above. She cautions that this is not an exhaustive definition of intersectionality but one that is tailored to assist a legal analysis of discrimination.[^24] With respect to each specified element of her theory, Atrey traces and critiques its intellectual lineage and explains the rationale for including it in her account of intersectionality.^[25] She further defends intersectionality against oft-cited criticisms, including the claims that intersectional analysis is based on identities rather than structures and that it deflects attention away from material disadvantage.[^26] She concludes the chapter by identifying the resonance between intersectionality and dalit feminism to illustrate the global appeal of intersectionality or intersectionality-like thinking.[^27] Following this, Atrey provides a thorough examination of how claims that implicate multiple grounds have been adjudicated across her chosen jurisdictions and comes up with an innovative taxonomy for judicial approaches in dealing with these claims.^[28] Accordingly, she distinguishes intersectional discrimination from single axis, multiple, additive, and embedded discrimination.

In the final chapter, Atrey undertakes a painstaking analysis of the practical aspects of providing legal redress for intersectional discrimination. She demonstrates how varying legal texts can still be amenable to recognizing intersectional discrimination.^[29] She argues in favor of conceiving grounds of discrimination broadly to capture a range of structural disadvantage to facilitate the recognition of intersectional discrimination.[^30] Further, she brings out how the language of direct and indirect discrimination can often be obfuscatory, which in turn hinders redressal of intersectional claims.^[31] She evaluates a spectrum of academic and judicial theories about the wrongfulness of discrimination, highlighting the usefulness of more granulated theories over singular metatheories.[^32] She teases out the way in which all of these theories could be relied on equally to understand intersectional discrimination.[^33] Atrey suggests that where the claimant’s experience is contrasted with that of a comparator to establish that the impugned conduct was discriminatory, all possible comparators must be drawn upon to holistically understand the intersectional discrimination faced by the claimant.[^34] To illustrate, suppose that a Black woman seeks redress for intersectional discrimination based on race and gender. To understand her experience we should compare it not only to that of White men, but also to that of Black men and White women. Further, Atrey’s analysis reveals that courts frequently collapse two distinct questions in adjudication—first, whether the claimant was discriminated against, and if yes, then second, whether there was any justification for the discriminatory conduct.[^35] This conflation is particularly worrying in light of her finding that intersectionality can sometimes be deployed as a justification in discrimination litigation.[^36] For example, article 15 of the Indian Constitution prohibits discrimination based “only on,” among other grounds, sex. Thus, where claimants alleged discrimination based on the interaction between multiple grounds, such as sex and age, the Indian Supreme Court ruled there was no violation of article 15, since the alleged discrimination was not based only on sex.^[37]

Next, turning to evidentiary issues, Atrey exposes the need to develop fair and realistic standards of proof in relation to the claimant, particularly in situations where the relevant evidence rests with the state.[^38] Finally, she argues that remedies to redress discrimination should be structural in nature given the transformative aims of intersectionality.^[39] As an example, she cites the order in Bhe where the South African Constitutional Court struck down the rule of male primogeniture in relation to the African customary law of succession.[^40] To replace the unconstitutional legal provisions, the Court passed a “comprehensive and effective” order, laying down the rules of succession that were to apply until appropriate legislation was enacted.^[41] Atrey lauds this “structural approach to remedy, which goes beyond the determination of the rights of the parties alone.”[^42]

1. Understanding intersectionality

Unsurprisingly, there is a great degree of overlap in how Potter and Atrey understand intersectionality. Yet, there are three themes along which their work can be fruitfully juxtaposed.

First, in Atrey’s conception, intersectionality is used primarily—or solely—to study interlocking structures of disadvantage. In contrast, Potter equally emphasizes the relevance of intersectionality in deconstructing how structures of advantage operate. She emphasizes the importance of explicitly engaging with these socially constructed identities in criminological scholarship and “dismantling Whitemaleness as the default and the standard on which we measure all people.”[^43] This is not just a semantic difference. Rather, Potter’s conceptualization offers us the opportunity to “flip the lens” and to study not just how people are oppressed, but also the multifaceted ways in which oppressor groups benefit from unjust structures. Perhaps Atrey’s focus on disadvantage is justified given the discrimination inquiry revolves around the claimant who, by definition, will be the disadvantaged party. Nonetheless, it would be interesting to use intersectionality to understand how advantaged communities benefit in the absence of what Atrey refers to as “positive discrimination,” including affirmative action.[^44]

Secondly, both scholars identify integrity as a key component of intersectionality, relevant to their projects (although Potter used the term “multiplicative identity”).[^45] However, this idea seems more relevant to scholarship than it is to adjudication. Integrity is a well-established aspect of intersectionality theory, which requires that people be treated as they are, as indivisible wholes. Among the other quotations that illustrate this, Atrey cites the words of Patricia Monture-Angus, a Mohawk woman from Canada:

Actually, if I am the object of some form of discrimination, it is very difficult for me to separate what happens to me because of my gender and what happens to me because of my race and culture. My world is not experienced in a linear and compartmentalized way.^[46]

This is a powerful idea which has been particularly potent for disabled persons who want to make a “positive assertion of the disabled body and life as complete.”[^47] Similarly, it is a theme often invoked by Black women who use it to “break through their image as victims and instead self-define themselves as whole and powerful.”^[48] Yet, it is not clear how much this otherwise rich theoretical tool adds to our analysis of causation in intersectional discrimination claims, which is the issue underpinning the whole project.[^49] Having already recognized the dynamic of sameness and difference in patterns of group disadvantage based on multiple identities within a particular context, will the court be further assisted in its causal inquiry by exploring ideas of identity? In the context of intersectional discrimination claims, does the idea of integrity add anything to the theme of multiple power systems interacting to mould the claimant’s experience?

Thirdly, both scholars recognize the value of using intersectionality to assess the impact of wide-ranging identities and structures, even though the concept was initially used primarily to study the interaction among gender, race, and class.[^50] For example, Potter adds the caveat that while she focuses on specific attributes, “any identity/ies an individual holds and believes to be significant in the lived experience should be considered for analysis in criminological research.” This is an important point and a specific recognition of the importance of lived experience in the development of intersectional thought.[^51] Nonetheless, the fact that Potter herself confines her exposition only to certain identity categories is telling. It is a testament to how challenging it can be to talk comprehensively about all relevant forms of oppression and resistance within the scope of a single project, leading Potter to focus on some identities rather than others. Atrey’s book remains truer to this ideal, not only discussing race, class, and gender, but also engaging with other structural disadvantage such as, inter alia, that associated with caste, disability, and marital status.

2. Intersectionality as a transformative project

Both scholars develop an account of intersectionality that is wedded to the idea of broader social, political, and economic transformation.[^52] However, the deployment and exemplification of this idea by both scholars raises some important questions.

Potter regards the adoption of participatory action research (PAR) as especially helpful in working towards intersectionality’s transformative goals through scholarship.[^53] PAR involves “the inclusion of members of the study population as a central component of the research).”[^54] In PAR:

All participants work collaboratively with the researcher at all stages of the project—identifying a research topic that they feel is important and relevant, creating research designs, developing methods of recruitment, taking part in data collection and analysis, and deciding how the findings should be used and disseminated.[^55]

PAR is revolutionary in its focus on participant subjectivity and empowerment. For the same reason, it is also time consuming and research intensive.[^56] Therefore, Potter’s analysis would be enriched if she mapped how PAR methods are institutionally disincentivized through structural policies about retention and promotion within the academy.[^57] How does PAR fit in with the “publish or perish” culture of the contemporary academy?[^58] Is it possible to submit funding applications which provide only the promise of collectively drafted research questions at a later stage?[^59] Further, Potter might want to explore more fully what “empowering” role PAR could play for research participants where they belong to predominantly elite groups.^[60] This might especially be the case where researchers are mainly interested in unpacking “Whitemaleness” (or equivalent phenomena). It is important to imagine the constraints and transformative possibilities of conducting PAR with such groups, given Potter’s emphasis on the relevance of intersectionality to understanding advantaged groups as well. Finally, the emphasis on linking scholarship with broader socioeconomic and political transformation in itself is commendable. However, it is possible that converting this aspiration is co-opted in the form of damaging institutional imperatives. To illustrate, when the “impact agenda” was first introduced in the UK by way of the Research Excellence Framework exercise, skeptics argued that:

“impact” represented an infringement of academic rights of autonomy, freedom and the capacity to be led by inquisitiveness. Opponents argued that the impact agenda would inhibit and narrow the process of academic discovery and curtail the possibilities of new, unexpected findings and breakthroughs. An impact agenda, would it was also argued, stifle the creativity and imagination of scholars and instrumentalise research for the purpose of highly specific outcomes. Such a limited focus in terms of research projections would then in turn deny the possibility of research impacting in more profuse and diverse ways and thereby also delimit the number of potential beneficiaries.[^61] (citations omitted)

Potter’s arguments would be strengthened if she were to address these concerns about the curtailment of academic inquiry through formal structures.

In a similar vein, the pillar of intersectionality that sits most uneasily with discrimination law is the idea of broader societal transformation. Atrey acknowledges that litigation might be ill-suited to bringing about such transformation, since it is only a retroactive response to an individual claimant’s experience.[^62] Nonetheless, she argues for structural remedies in cases involving any kind of discrimination, including intersectional discrimination.[^63] Such an approach would be in keeping with intersectionality’s transformative ethos. However, Atrey’s proposal is vulnerable to the challenge that it violates the separation of powers principle. This is perhaps regarded as a “limitation of design” which she suggests is not the focus of her book.[^64] Nonetheless, it is important to examine what the unintended consequences of adopting her approach might be, particularly where constitutional courts have already been consistently accused of encroaching on the executive and legislature’s authority.[^65]

In conclusion, both books are timely interventions for initiating a dialogue between scholars and practitioners about how the interlocking systems of injustice and inequality should be approached. It was a particular joy to read them together to obtain a fuller view of how profound, useful, and vital intersectionality is for a range of projects and disciplines. Both books not only make important theoretical advancements in their areas but are also unafraid to delve into intersectional praxis. While Potter’s work focuses primarily on criminology within the US, criminologists from across the world will find it useful to consider her ideas. Indeed, the global reach of the underlying theory is well-established by Atrey’s multijurisdictional exposition of intersectionality in the context of discrimination law. I recommend these books highly to all scholars who concern themselves with social justice.

Footnotes

¹  Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, U. CHI. LEGAL F. 139, 139 (1989).

²  Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1245 (1991).

³  HILARY POTTER, INTERSECTIONALITY AND CRIMINOLOGY: DISRUPTING AND REVOLUTIONIZING STUDIES OF CRIME (2015).

⁴  SHREYA ATREY, INTERSECTIONAL DISCRIMINATION (2019).

⁵  POTTER, supra note 3, at 3.

⁶  Id. at 8–31.

⁷  Id. at 32–34.

⁸  Id. at 40–65.

⁹  Id. at 46.

¹⁰  Id. at 71–78.

¹¹  Id. at 77–78, 145–146.

¹²  See, e.g., ANDREW MILLIE, PHILOSOPHICAL CRIMINOLOGY (2017).

¹³  Alison Bailey, On Intersectionality and the Whiteness of Feminist Philosophy, in THE CENTER MUST NOT HOLD: WHITE WOMEN PHILOSOPHERS ON THE WHITENESS OF PHILOSOPHY (George Yancy ed., 2010).

¹⁴  POTTER, supra note 3, at 112–113.

¹⁵  Id. at 115–146.

¹⁶  Id. at 139–145.

¹⁷  Id. at. 150–151.

¹⁸  The terminology is borrowed from VICTOR M. RIOS, PUNISHED: POLICING THE LIVES OF BLACK AND LATINO BOYS (2011).

¹⁹  POTTER, supra note 3, at 151.

²⁰  Imogen Clark & Andrea Grant, Sexuality and Danger in the Field: Starting an Uncomfortable Conversation, J. ANTHROPOLOGICAL SOC’Y OXFORD ONLINE: SPECIAL ISSUE ON SEXUAL HARASSMENT IN THE FIELD 1 (2015).

²¹  POTTER, supra note 3, at 152.

²²  ATREY, supra note 4, at 37.

²³  Id. at 12–23.

²⁴  Id. at 36.

²⁵ Id. at 37–54.

²⁶  Id. at 54–63.

²⁷  Id. at 63–76. Broadly, dalit feminism analyzes the interaction between casteism and patriarchy on the Indian Subcontinent as well as in diasporic Indian populations.

²⁸  Id. at 78–139.

²⁹  Id. at 142–146.

³⁰  Id. at 146–156.

³¹  Id. at 156–162.

³²  Id. at 162–173.

³³  Id. at 162–173.

³⁴  Id. at 173–179.

³⁵  Id. at 179–189.

³⁶  Id. at 182–184.

³⁷  See, e.g., Air India v. Nergeesh Mirza, (1982) 1 S.C.R. 438.

³⁸  ATREY, supra note 4, at 190–197.

³⁹  Id. at 197–206.

⁴⁰  Bhe v. Khayelitsha Magistrate, (2004) Z.A.C.C. 17.

⁴¹  Id. at 68.

⁴²  ATREY, supra note 4, at 205.

⁴³  POTTER, supra note 3, at 7.

⁴⁴  ATREY, supra note 4, at 212.

⁴⁵  Id. at 45–48; POTTER, supra note 3, at 66, citing ADRIEN KATHERINE WING, CRITICAL RACE FEMINISM: A READER (Adrien Katherine Wing ed., 1997).

⁴⁶  ATREY, supra note 4, at 46, citing PATRICIA MONTURE-ANGUS, THUNDER IN MY SOUL: A MOHAWK WOMAN SPEAKS 177–178 (1995).

⁴⁷  ATREY, supra note 4, at 47.

⁴⁸  Id. at 48.

⁴⁹  On causation, see id. at 80–84.

⁵⁰  Id. at 33–36; POTTER, supra note 3, at 78–80.

⁵¹  On this point, see POTTER, supra note 3, at 148.

⁵²  ATREY, supra note 4, at 51–54; POTTER, supra note 3, at 152–158.

⁵³  POTTER, supra note 3, at 155–157.

⁵⁴  Id. at 155.

⁵⁵  Ida Dupont, Beyond Doing No Harm: A Call for Participatory Action Research with Marginalized Populations in Criminological Research, 16 CRIT. CRIMINOL. 197, 202 (2008).

⁵⁶  Id. at 203.

⁵⁷  Id. at 203–204.

⁵⁸  Id. at 199.

⁵⁹  Deborah H. Drake, Researching Prisoner Experiences with Prison Officers: An Action Research-inspired Approach, 12 ACTION RES. 94, 101 (2014).

⁶⁰  For example, Deborah Drake analyzes the obstacles she encountered while trying to conduct PAR with prison officers (and prisoners); see id.

⁶¹  Richard Watermeyer, Impact in the REF—Issues and Obstacles, 41 STUD. IN HIGHER EDUC. 199, 201 (2016).

⁶²  ATREY, supra note 4, at 197, 206.

⁶³  Id. at 203–206.

⁶⁴  Id. at 206.

⁶⁵  In the Indian context, see, e.g., Rehan Abeyratne & Didon Misri, Separation of Powers and the Potential for Constitutional Dialogue in India, 5 J. INT’L & COMP. L. 363 (2018).

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