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Standing up to Intersectional Discrimination: a Multi-dimensional Approach to the Case of Spain

Faire face à la discrimination intersectionelle : une approche multi-dimensionnelle du cas espagnol
Olga Jubany, Berta Güell et Roisin Davis
p. 197-217

Résumés

In analysing and understanding discrimination in our globalised society, the intersectional approach becomes fundamental to move beyond presumed collective classifications and adopt a conceptual framework inclusive of all forms of discrimination and their intersections. However, this does not only relate to the existence of different forms of the discriminatory experience, but also to the diversity in resistance and to the ways in which individuals stand up to it. By presenting an in-depth exploration of the case of Spain, this paper illustrates the key elements that play a role in the use of resources to complain against experiences of discrimination as a means of resistance. This is analysed through a multi-dimensional approach which reveals the existence of a breach between the prominent application of the intersectional concept at the academic level and its minimal use by individuals experiencing discrimination and those dealing with discrimination complaints. It is by linking the results of an empirical investigation with the arguments outlined at the wider academic sphere that this paper attempts to bridge the gap between the everyday experiences and the conceptual debate.

Faire face à la discrimination intersectionelle : une approche multi-dimensionnelle du cas espagnol

En analysant et en comprenant la discrimination à l’aune de notre société globalisée, l’approche intersectionnelle devient fondamentale pour dépasser les classifications collectives présumées et pour adopter un cadre conceptuel incluant toutes les formes de discrimination et leurs intersections. Cela renvoie non seulement à l’existence de différentes formes d’expérience discriminatoire mais aussi aux différentes manières dont les individus y font face et y résistent. À partir d’une exploration approfondie du cas espagnol, cet article montre les éléments-clés qui jouent un rôle dans l’usage des ressources mobilisées comme moyen de résistance en cas d’expériences discriminatoires. Grâce à une approche multi-dimensionnelle, l’analyse révèle l’existence d’un écart entre l’application importante du concept d’intersectionalité au niveau académique et son usage minimal par les individus victimes de discriminations et les personnes traitant les plaintes. C’est en reliant les résultats d’une enquête empirique aux arguments déployés par le milieu académique que cet article tente de combler l’écart entre les expériences quotidiennes et le débat conceptuel. 

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Introduction

A paradigm for debating and researching resistance

1The long academic trajectory that explores discrimination and resistance has led us to understand that such experiences cannot be treated as closed categories but as rather the results of dynamic intersections that together shape the identity of each individual. The nature of these intersections expands beyond presumed collective experiences, as they are the result of diverse expressions of exclusion and discrimination that individuals confront every day. Such expressions of discrimination should therefore not be understood or even perceived as single types, as has been done in the past, because this will lead to an analysis that further alienates men and women who have been discriminated against. In a complex and diverse society as ours there is not a single type, or a single discriminatory category that affects all men or all women in the same way. Rather discrimination is expressed in multiple experiences and forms, and articulated in the intersections between these forms.  In attempting to explore such intersections, the concept of multiple discrimination and the intersectionality paradigm become essential, as does analysis of the confluence of each form of discrimination.

  • 1 Chandra Talpade Mohanty (1998), «Feminist Encounters: Locating the Politics of Experience» in A. P (...)

2The arguments and analysis presented in this paper cannot and do not presume to address women’s or any individual’s experience of discrimination only by means of abstract categories, or by single expressions of discrimination and forms of exclusion. Instead, the aim is to apply the intersectional approach beyond such classifications of exclusion and adopt a conceptual theory inclusive of all forms of discrimination and the intersections between them. This leads to the inclusion of the differences that constitute each individual, each woman, counting on the different contexts and experiences that everyone is immersed in to perceive them as intersections. In doing so we understand how such intersections refer to both discrimination and resistance to discrimination, as each person in a moment of their life is reflecting an identity but not a specific permanent reality, or Chandra Mohanty puts it, the existence of different forms of discrimination and different forms of resistance1. Just as the forms of discrimination and exclusion in our contemporary society are many and very complex, so are the forms of resistance and the intersections between them.

  • 2 Leslie McCall (2005), «The complexity of intersectionality», IGNS: Journal of Women in culture and (...)

3These forms of resistance and the expression of the mechanisms to stand up to multiple discrimination are the focus of this paper’s arguments and discussion. This is with the awareness that resistance to discrimination is articulated in different ways by each individual, ways that are also received differently at many levels of society, although with a high degree of interaction. Therefore, the levels in which intersectional discrimination is constructed and the roles of the different actors involved are also considered to have a direct effect on the way these experiences are resisted and in the way these are dealt with, as will be argued throughout. Hence, in order to recognise and understand these forms of resistance, different ways and mechanisms must be accounted for and analysed. This implies taking account of intersectional discrimination not only from a conceptual but also a subjective approach, and not only from an academic view but also from the perspective of everyday actions. Through adopting the intersectionality paradigm to understand everyday life it becomes truly useful. This leads us to greater understanding of the multiple forms of discrimination, but also towards comprehension of the mechanisms to take action against discrimination when suffered. As McCall and Lanquetin2 would argue, we must be more complex whilst at the same time more precise in our approaches to resistance, because the world we are in is also increasingly complex in the intersections and multiple forms of discrimination it presents.  

  • 3 The Genderace research project (2008- 2010) was led by the Universitat de Barcelona and the Univer (...)

4Based on a focused overview of the conceptual debate as well as the results of a comprehensive research on the ways intersectional discrimination is confronted by different individuals, this paper argues for the need to apply the intersectional conceptual approach to the understanding of daily actions and interactions of resistance to multiple discrimination. The results of the investigation3 expose the importance of examining the mechanisms used by those experiencing discrimination to stand up to it, and analyse the institutional inference and implication in the struggle against multiple discrimination.

5Starting with a brief review of the latest developments on the concepts of multiple discrimination, resistance and intersectionality, the paper argues that the reality of the actions of those experiencing multiple discrimination and standing up to it cannot be explored, nor understood, without applying an intersectional perspective that does not define an automatic classificatory expectation. The paper exposes how regardless of the resistance to the situations of discrimination and the preventive mechanisms established by the legal and policy frameworks, there is a clear lack of maturity in the application of the intersectional approach at personal, judicial and institutional levels. Furthermore it shows how these paths often advance in independent, even disconnected ways, which in turn indicates the need to analyse and understand them also by an interdependent multi-level approach.

6Therefore in revising the conceptual connotations, the need to adopt a multidimensional holistic approach is argued, one that accounts for each level in the process of articulating the discrimination experience. The proposed exploration adopts three main levels: micro, meso and macro, to attest for an approximation at the different stages of the discrimination and resistance experience. By referring to the micro level of analysis the aim is to explore the articulation of the experience by victims, individual circumstances, followed by the meso level of analysis to investigate the way of working of organisations and their actors. This is followed by the macro-level approach and the analysis of the legal and political framework on antidiscrimination issues, and the potential impact this has on the whole experience of standing up to intersectional discrimination. These levels involve the various stages of the discrimination experience; from the moment it is suffered, to the point at which a decision of taking action against it is made, and the way these actions are handled by institutions. The examination of multiple discrimination through the multi level approach, and what we refer to as the «discrimination cycle», are explained and exposed throughout the paper, and receive further illustration through the results of the investigation in Spain.

  • 4   Avtar Brah and Ann Phoenix (2004), «Ain’t I a Woman? Revisiting Intersectionality», Journal of In (...)

7It is precisely the section on the interaction of multiple dimensions and the analysis of the Spanish case that reveals most clearly the importance of individual experiences and explicit expressions of discrimination and resistance – mainly through the making of formal complaints. This is also connected to the wider debate on agency and the need to adopt an ethnographic view to unravel the way personal conflict decisions are constructed. On the lines of what Brah and Phoenix4 refer to as the de-construction of the experiences of individuals, and particularly of women, in order to recognise the existence of diversity in all its magnitude. In this section, the illustration of the specific results of the investigation expose the way different levels and different experiences of discriminations are reflected by the use of institutional and non-institutional tools for standing up to it. It discusses the ethnographic data on how these tools are used and on the extent to which rights against discrimination are exercised. This raises basic questions regarding individual motivations involved within standing up to discrimination, or circumstances leading to the noticeably low number of legal complaints in proportion to the actual experiences of multiple discrimination. Furthermore, the empirical results demonstrate the relevance of the conceptual application of the intersectional paradigm in the analysis of ethnographic studies to the understanding of everyday experiences.

8The paper concludes by emphasising the need to connect empirical experiences and conceptual approaches in linking the results of research, such as that outlined, with the wider academic debate. The article throughout provides a connection between the way the phenomenon of multiple discrimination is perceived at an abstract level, to the most specific legal, social and even personal approaches to the experience of discrimination. This is in the effort to also try to shake up our theoretical epistemologies to provoke academic debate that will lead us to understand the shaping of discrimination and contemporary identities, without overlooking the importance of the experiences of those individuals courageously standing up to intersectional discrimination.

Conceptual and methodological considerations

9Understanding discrimination in today’s globalised world, characterised as it is by ever-increasing complexity of identity and belonging, implies a diversity of challenges within research. As pointed out in the introduction, we are today presented with challenges in deciphering not only how each individual in a moment in their life manifests an identity not necessarily representative of any specific permanent reality, but also with the existence of a multiplicity of forms of discrimination as well as resistance.

  • 5 Judith Butler (1990), Gender trouble: feminism and the subversion of identity, Routledge.

10Since the 1990s, the discourse on ‘inclusion’, ‘exclusion’, ‘stigmatisation’ and ‘discrimination’ has more often than not focused on issues of ‘identity.’ It seems the latter has fast become a unifying framework of intellectual and political debate, with much political and public discourse concentrated on collective and individual identities and their evolution in post-industrial societies. Popular concern about identity is perhaps a reflection of the uncertainty produced by rapid change in late modern societies (Butler, 1990)5. This debate reflects a growing concern with identity politics started by the New Social Movements in the 1960s around issues of peace, ecology and gender and followed up since the 1990s by the resurgence of ethnicity as a significant political force. Indeed, identity as a concept embraces all these different social issues and seems to provide a keyword for our times.

  • 6 Verena Stolcke, «Is Sex to Gender as Race is to Ethnicity?» in Gendered Anthropology, ed. Teresa d (...)
  • 7   Kamala Visweswaran (1994), Fictions Of Feminist Ethnography, University Of Minnesota Press.

11If, by now, social science has moved beyond concepts of static, fixed categories of identity, the latest developments in feminist theory (Stolcke6, Visweswaran7) and specifically the theoretical paradigm of intersectionality has been instrumental to this shift. Application of the paradigm has allowed us to appreciate identities as intersectional, comprised of a myriad of socially-constructed categories. This leads us to a recognition that the more complex are experiences and the intersections between them, the more complex are identities. To a certain extent, identity can be taken as hand-in-hand with discrimination as one cannot be understood without the other.

  • 8 Toni Williams, «Intersectionality Analysis in the Sentencing of Aboriginal Women in Canada: What D (...)

12As Williams8 has noted, much has changed since the paradigm of intersectionality was first formulated to support Crenshaw’s assertion that black women suffer discriminatory social practices differently than white women and black men (e.g Crenshaw 1989). For Crenshaw and others, the desire to challenge the ‘gender essentialism’ perceived as so inherent to feminist legal studies paved the way for the introduction of critical attention from the work of many activists and scholars on ways in which women’s oppression could be conceptualised and resisted.  

  • 9 Rose M. Brewer, Cecilia A. Conrad and Mary C. King (2002), «The Complexities and Potential of Theo (...)
  • 10   Anjali Arondeker (2005), «Border/Line Sex: Queer Postcolonialities, or How Race Matters Outside t (...)
  • 11   Gill Valentine (2007), «Theorizing and Researching Intersectionality: A Challenge for Feminist Ge (...)
  • 12 Mary Hawkesworth (2003), «Congressional Enactments of Race-Gendered Institutions», American Politi (...)
  • 13   Amy J. Schulz, Leith Mullings (eds) (2006), Gender, race, class, & health: Intersectional approac (...)
  • 14 As Grabham et al note.
  • 15 Tony Emmet and Erna Alant (2006), «Women and disability: exploring the interface of multiple disad (...)
  • 16 Gudrun-Axeli Knapp (2005), «Race, Class, Gender. Reclaiming Baggage in Fast Travelling Theories Eu (...)
  • 17 Mary Eaton (1993), «At the Intersection of Gender and Sexual Orientation: Toward Lesbian Jurisprud (...)
  • 18 See, for ex., FRA report Breaking the Barriers - Romani Women and Access to Public Health Care (01 (...)

13Since Crenshaw first coined the term twenty years ago, there has been a proliferation of research applying intersectionality within a growing diversity of fields beyond its sociological and socio-legal origins, ranging from feminist approaches to economics (Brewer et al.9), postcolonial studies (Arondeker10), political geography (Valentine11), political science (Hawkesworth12) and healthcare (Schulz and Mullins)13 to name but a few14. Recent research has also produced a broader scope of analysis in terms of the socially constructed categories that constitute the axes of discrimination, including disability (Emmet and Alant)15 class/socio-economic status (Knapp)16, age, and sexual orientation (Eaton)17. The concept is also finding increasing expression in policy research targeted at identifying gaps within narrow policy provisions not recognising the needs of marginalised groups18.

  • 19   L. McCall, (2005), «The complexity of intersectionality», Signs, 30 (3): 1771-1800.

14We could refer to the individual understanding and experience of discrimination and stigmatisation within society and the institutional and structural conditions shaping it, in what McCall identifies as the different facets of intra-categorical and inter-categorical intersectionality (McCall 2005)19. Considering that an intersectional framework is necessary for taking into account the true complexity of discrimination, in all its forms and ways of being experienced and perceived, we find that the way that individuals react to discrimination and how they resist it is also a reflection of their individual experience. Again, this acknowledges that each experience of discrimination is multidimensional, existing within its own context, and must be explored as such.

15This debate helps us to see how to understand intersectional discrimination without paying attention to the subject and the everyday experience renders the picture incomplete, and therefore unrealistic. This points to the need for research which highlights the different ways in which discrimination is experienced, perceived and articulated. Such inquiry can be adequately approached only by incorporating an ethnographic methodology which gathers the views of those who have themselves suffered discrimination. The prevalence of discrimination, especially in terms of its ‘normalisation’ by those that experience it and its embeddedness within the very fabric of society means that it is virtually impossible to gain an authentic picture. This in addition to the consideration that discrimination is all too often suffered in silence and never reported.

16In spite of these difficulties, the research that forms the focus of this article has attempted to uncover the characteristics and complexities of discrimination by looking at a specific case-study. This is the analysis of the case of Spain and the extent to which intersectional discrimination is both recognised and treated as such, which is explored in detailed in the next section. In aiming to understand discrimination at each level, and at each intersection, a multi-level approach has been defined, corresponding to micro, meso and macro ranges of analysis and also through what we may visualise as a discrimination ‘cycle’ with various process features. Where any attempt to study the social world holistically – be it from symbolic interactionism, to phenomenology to rational choice theory approaches- takes into account the micro-meso-macro paradigm, it is particularly useful when applied to intersectional discrimination. When action is taken as part of resistance to discrimination it necessitates and often depends on the use of official and legal instruments and actors. Therefore, the implication of the macro level implicates the macro as a constituent part of individual experience in reporting discrimination to achieve resolution, is fundamental.

17In adopting such a microdimensional approach, we understand that there are many elements within discrimination in terms of the micro or individual level. This includes the act of discrimination, the articulation and perception of the experience as discriminatory and the action taken against it by lodging a complaint or claim within an organisation or an institution. The micro-level in analysing decisions taken by individuals to stand up against discrimination are particularly important as they constitute the point of departure if viewed as a cycle, affecting the perception of an experience as discriminatory and the decision to take action against it in filing a complaint. In this context, the meanings and interpretations afforded to an experience of discrimination by those suffering it are all-important and must be explored in-depth.

18As such, one contribution of the Genderace project was to gather these experiences through over 100 in-depth interviews with individuals that had complained about a discriminatory act, in order to reveal specific articulations of discrimination. This was done in a comparative framework that included six European countries, of which this paper focuses on Spain. As the next section discusses, this has led us to insights in the Spanish context that highlight not only the inadequacy of the institutional system to recognise intersectional discrimination as such, but also the degree to which it is often not recognised by individuals themselves, even in what our research has identified as seemingly clear-cut instances. However, this underlines the fact that inquiry into intersectional discrimination still has a long way to go if it remains widely unacknowledged as such within ‘everyday’ society.

19If the next step in the cycle involves expressions of resistance involved in the taking of action to report discrimination, we must consider that the meso level is one caught between two highly dynamic forces in its position between the realms of micro and macro. To this extent, the roles of actors at this level, such as lawyers and legal advisors, often indicate the inherent limits of individual actors within the overall institutional framework. Hence, once a claim or complaint is filed, an analysis must be made of the treatment by the legal agents. In Spain, a sampling of case files of complaints made by women and men of racial discrimination using a variety of sources allowed for important insights of the functioning of this level as we shall see.

20Indeed, the role of those acting on behalf of the various official and non-governmental bodies involved in the filing and processing of these complaints is significant both in the level of attention and support afforded to each individual and their experience, and in selecting the ground upon which the complaint is filed and treated as such. The experience of organisations in the field and the awareness, training and mobilisation of actors providing assistance may influence use of certain resources over others such as the complaints in court, and in how to proceed with the making of claims and complaints. Awareness of issues of intersectionality and multiple discrimination may therefore also affect the victim’s perception of facing multiple grounds of discrimination.

21Where intersectional discrimination becomes relevant at the macro level, having already traversed experience by the individual and subsequent treatment in the organisational realm, by looking at this macro level we reveal the capacity of structural forces to provide recognition of and willingness to address it.  In this analysis, we examine the impact that a claim or complaint against discrimination might have as well as the policies undertaken and the development of an antidiscrimination legal framework at the institutional level.

22The empirical study undertaken as part of the Spanish case to explore the macro level included a national review of statistical data on ethnic minority and migrant populations by gender, documentation on the major groups experiencing discrimination and the development and application of antidiscrimination policy. This, as will be shown in detail in the next section, highlighted key similarities and differences in the main groups being discriminated against, whether data on discrimination is systematically collected, and the range of governmental and non-governmental organisations involved in dealing with gender and racial discrimination.  In addition, this attention to the structural level allow us to explore the extent to which [intersectional] discrimination is incorporated within the public agenda and the commitment of institutions in designing and applying antidiscrimination policies and legal frameworks. This may contribute to the political culture of individuals using resources to act against their experiences of discrimination. A macro perspective also includes those ideas and perceptions towards the abilities and scope of institutions when dealing with cases of discrimination embedded in the social structure.

  • 20 L. McCall, (2005), «The complexity of intersectionality», Signs, 30 (3): 1771–1800.

23Where and how these stages interact within what we are referring to as the «cycle of discrimination» is crucial. Discrimination is a dynamic phenomenon that reflects the uniqueness of social experience and individual exclusion within different facets of intra-categorical and inter-categorical intersectionality (McCall, 2005)20. Arguably, intersectional discrimination must be recognised and treated at micro and meso levels to receive entry, and not least to have any impact at the macro stage.

24Equally, only by making inroads within the institutional context can intersectional discrimination receive treatment and application within policy. In turn, the academic and policy frameworks are we can find the greatest potential to influence and change the power structures from which intersectional discrimination emerges in the first instance. This reveals the necessity to which discrimination in all forms and expressions demands greater attention as a research agenda and closer scrutiny at each cyclical point and dynamic intervention.

The multiple dimensions in the analysis of the case of Spain

25Standing up to discrimination, as understood for the purpose of this paper, is neither straightforward nor commonplace in Spain. Our in-depth research study of the Spanish context has uncovered several key elements at work within the underuse of resources in taking action against experiences of discrimination. This analysis reveals how awareness of the intersectional approach very seldom exists for those experiencing discrimination or indeed is considered within the organisations and institutions dealing with discrimination claims and complaints. The multi-dimensional approach from the academic perspective is certainly, as pointed out in the previous section, a very useful tool in the analysis of this reality. It becomes vital in helping us understand how the elements interact at the micro, meso and macro levels by taking account of the relationships and influences from one dimension to the other. This is, in turn, related to the ‘cycle of discrimination’ that focuses on the different stages involved in the analysis of discrimination as a whole process. As we will see, this cycle does not necessarily follow a lineal direction; instead there are various elements that interrupt, change or reverse this process, retro-alimenting one another.

26At the micro level, this approach reveals that intersectional discrimination in Spain is hardly recognised as an interaction of multiple, concurring grounds of discrimination. Rather, individuals tend to perceive and construct their experience on a single ground, and usually that of ethnic or national origin. Ethnic minority women hardly ever conceive of having been treated differently because of their gender or their origin and gender. We are provided with a useful illustration in the case of a migrant woman who experienced discrimination within an apartment block in which she worked as a cleaner. The fact that an autochthonous woman and a non-migrant man had been previously employed in the same place apparently without having suffered from discrimination did not lead to her perceive that being both a migrant and a woman could be the ground(s) for her having been discriminated against. She interpreted the experience, according to her status of migrant, but not to her gender or any other ground.

27As pointed out earlier, the way discrimination is perceived and articulated is fundamental, as it can determine the future steps in the different stages of the ‘cycle of discrimination’. First, we must recognise that there are many people who do not choose to take any action –or as stated earlier do not wish ‘to stand up to’ discrimination– through the making of claims or complaints. Our analysis reveals that part of this reluctance to seek formal redress against discrimination is due to the fact that individuals seldom articulate their experiences as discriminatory. On the contrary, they become normalised and naturalised as part of daily life or alternatively, conceived in a much ‘softer’ way, such as a «bad experience» or «bad treatment» within a more general understanding. This infrequency in articulation of experiences as discriminatory appears, thus, as the first obstacle in inaction.

28An examination of 1000 discrimination cases and over 100 in-depth interviews across Europe reveals different behaviours and practices in the face of discrimination. On the whole, those that tend to file a claim have usually lived in the host country for a relatively long period of time, have a certain command of the language, a regular administrative situation and an awareness of the resources available. A further important element is the political culture around the exercise of rights when filing a claim, although this is not always a sine qua non condition. The well-known case of ‘La Nena’ involves a Roma woman who was denied the right to receive her widow’s pension due to the marriage not having been recorded in the civil registry21. Despite her being in possession of other legal documents that verified the marriage, such as the ‘libro de familia22, these were not recognised by the Spanish Constitutional court. In addition, she appeared to have a poor awareness of her own civil rights, but the organisation in defence of the Roma community Fundación Secretariado Gitano took the case up and provided legal advice until the process was finished following a favourable resolution by the European Court of Human Rights.

29This case aside, there is a common pattern of individuals who tend not to report their experience outside of their close circles. They are often in an unstable legal situation, have difficulties in conciliating work and family commitments, few economic resources and/or are not aware of what bodies to approach as victims of discrimination. The vulnerability of migrant women is reflected in the lower number of complaints in the records of the organisations gathering cases of discrimination, as happens with non-migrants, both women and men23. Yet, we can find another exception in Spain for the 2007 records of the Federación Secretariado Gitano in which Roma women put forward 70% of the overall complaints received. However, this has not been observed in the previous or following years, responding to the will of the organisation of making the situation of Roma women more visible through a specific campaign.

30Social capital also appears fundamental in the awareness of the available mechanisms to report discrimination. This has been reflected in the use of the resources provided by informal networks and close circles of friends and relatives in a first instance. These are usually linked to an ethnic group and their existence is usually already known by the individual, despite such organisations not always having a specific office devoted to dealing with discrimination claims and complaints. This is especially relevant in countries such as Spain and Bulgaria where discrimination is often inadequately addressed at the institutional level and where equality bodies are not yet fully empowered. Notably, these networks normally inform an individual of where to go and what to do, and redirect migrants to the specific organisation with an office of complaints. Whereas in Spain we find lack of awareness of the existence of the Ombudsman or the Antidiscrimination Office, in other countries like Sweden their presence appears more normalised within community networks. In Sweden, such offices appear to be more frequently visited than in Spain, where people make much more use of non-institutional resources through the making of oral or written informal complaints in NGOs.

31When it comes to the filing of legal claims in court, further factors need to be taken into consideration at the micro level. Migrants and ethnic minorities often feel unrepresented by justice institutions and believe this could in fact harm their situation, as explained to us: Why should we take it to court? Then it could be worse24. As such, we may identify a pervasive sense of detachment, fear, distance and/or mistrust amongst victims of discrimination that appears as a clear obstacle in the use of institutional resources, as the following statement tells us: They would not listen to us […] Nobody is going to take it seriously! […] They would tell us ‘who are you to come and denounce one of our people’?25Hence taking actions to report discrimination is often perceived as a problem and as an extra burden added to the daily difficulties, so potential benefits of claiming are rarely valued. Also, lack of awareness of the way in which legal proceedings function, the lack of a tradition in lodging complaints and the unawareness of any case with favourable rulings is revealed to be misleading. This is reflected by the small number of cases of discrimination taken to court in Spain in contrast to other European countries (Añón, 200626; TODOYMAS Project, 201127; Raxen Focal Point for Spain 200228).  

  • 29   (GENDERACE-UB-CO5) Translation by author.

32It is also important to note that making a formal complaint is sometimes associated with having to deal with the police, making migrants reluctant to do so, as they do not feel it to be secure enough, as we can realise by the following statement: There is a lack of culture of complaining because for many immigrants it means making a complaint in a police station and get beaten. People who complain are usually well instructed and have great awareness on civil rights29. In addition some persons expressed their defeat to file a complaint, as it is perceived that it could be against the interests of their community in terms of more racism towards them. Instead, they prefer to take actions from their political group and fight for common interests.  

33At the meso level, legal advisors and counsellors play an important role in promoting the use of resources for making complaints and in bringing the phenomenon of intersectional discrimination to the fore through mobilisation and support for legal actions. For example, numerous actors mobilised around the wearing of the hijab in France upon discovery that the equality body HALDE was in favour of religious freedom. It is the case of many legal advisors of associations where Muslim women belong to that have promoted the making of complaints. In Spain, collective mobilisation to denounce the specific reality of Roma women has also been fundamental to gather discrimination complaints from them, as explained above.

34Still at the meso level, Barcelona within Spain stands out for having a specific individual in charge of prosecuting hate crimes and discrimination since 2007, which has been a good practice recognised in the country (Raxen Report 2010)30. However, on the whole, there is a clear unawareness of the antidiscrimination legal framework among legal actors in Spain including lawyers, judges and prosecutors, particularly when dealing with multiple discrimination. This lack of awareness results in under-implementation and under-development of a culture of exercising rights, which filters down to the individual practices of resistance versus discrimination at the micro level. However, organisations’ lack of human and economic resources appears a key determinant in the low number of complaints brought to trial. At the same time, this is influenced by the fact that the State externalises the functions of assisting victims of discrimination in organisations of the third sector instead of empowering public institutions. This brings about a weak structure of assistance with precarious means for solving conflicts. The macro dimension affects the way organisations work at the meso level.

35When facing cases of intersectional discrimination, the gender perspective often appears to be overlooked in the treatment of discrimination complaints based on the ethnic/national origin. There are some cases in which legal advisors are more sensitive towards discrimination affecting women, such as pregnancy or pay gap, but on the whole, issues of gender often remain absent in the methods of resolution of conflicts. Since the Spanish legal framework does not recognise the interaction of multiple grounds nor incorporates the paradigm of intersectionality, lawyers do not have legal tools to claim intersectional discrimination.

36However, it is not only a legal matter, but of awareness and training of the legal agents dealing with issues of discrimination. In this sense, «intersectionality» and «multiple discrimination» in Spain are terms still placed much at the academic level and are not regularly used by the organisations or institutions, neither at the conceptual nor the practical level. This is also reflected in the way organisations archive cases of discrimination as the system does not foresee the possibility to register one case on multiple grounds, but only one. The great majority of cases of discrimination affecting migrant women are archived within the ground of origin.  

  • 31   The equality law 3/2007 (in Spanish, Ley Orgánica 3/2007 para la igualdad efectiva entre hombres (...)

37It is interesting, however, that in the cases where legal advisors identify the presence of two main grounds of discrimination decide to orientate the legal strategy towards gender discrimination if they see that there could be more chances to be recognised. The legal framework embracing issues of gender is more developed31, which gives the possibility to have more legal coverage. Also, in the cases where mediation is applied as a method of resolution, it is often easier to deal with the alleged author of discrimination if it is oriented to an issue of gender. This may respond to the fact that being seen as sexist is often less reprehensible than being seen as racist, which could result in having more chances of a favourable settlement.

38Related to the micro dimension, the lawyer’s role is also bound by the importance given to gender and/or ethnicity as grounds of discrimination by victims and thus, by the articulation of the individual’s experience. On the other hand, legal advisors are also limited to the legal competence of the institution they belong to and to the laws the institution is in charge of enforcing, which is related to the macro dimension. In the case of Belgium, for example, the Gender Institute is competent for dealing with discrimination complaints on the grounds of gender and related criteria, whereas the Centre for Equal Opportunities and against Racism is competent for cases based on antiracism and/or antidiscrimination laws.

  • 32   This is the Council for the Promotion of Equal Treatment and Non Discrimination of People due to (...)
  • 33 In Spanish, Proyecto de Ley Integral para la Igualdad de Trato y No Discriminación.

39Finally, at the macro level, several elements reveal that Spain’s institutional commitment to tackling discrimination is rather weak and inadequate. The delay in the transposition and application of the EU antidiscrimination Directives 2000/43 and 2000/78 is quite significant of the low importance given to issues of antidiscrimination by the government in contrast with other European countries. The decree stipulating the implementation of the transposed law (Real Decreto 1262/2007) was not approved until 2007 and in the subsequent years has hardly been applied. The current equality body32 only considers the ground of racial or ethnic origin of discrimination and although it was created in 2007, it has only started to be active since very recently after a new equality bill has been debated and approved in May 201133.

  • 34 In Spanish, Autoridad para la Igualdad de Trato y la No Discriminación.
  • 35 These are racial or ethnic origin, gender, sexual orientation, age, disability and religion or bel (...)
  • 36 HALDE stands for the French Equal Opportunities and Anti-Discrimination Commission (in French Haut (...)

40It is worth noting that this current bill encompasses direct and indirect discrimination (Art. 5), multiple discrimination (Art.7) and harassment (Art. 8) and envisages the creation of a new equality body called ‘Authority for Equality and non Discrimination’34. As a novelty, the law will also consider discrimination due to an ‘association’ or a ‘mistake’ (Art. 6) and the illness, the language and sexual identity as grounds of discrimination added to the six grounds established at the Directives35. The functions and structure of the equality body are quite similar to the French one (HALDE36) including the introduction of the reversal of the burden proof and economic sanctions for the discriminatory agents. Both the new legal framework and the equality body represent today a turning point in the handling of discrimination from Spanish institutions reaching the standards of the rest of European countries. However, at the time this research was conducted (2008-2010), findings revealed a very poor commitment of the Spanish government in issues of discrimination, which coincides with the prognostic of other reports done in the past decade (e.g. RAXEN Reports, Shadow Reports).

  • 37 In Swedish, it is called Discriminerings Ombudsmannen (www.do.se). This was established in 2009 to (...)

41The more or less extensive choice of bodies and organisations in which to make a discrimination complaint already poses limitations for the individual. Comparing Spain to Germany we can see how the available resources vary to a great extent. The latter, for instance,has 20 active antidiscrimination offices, whilst the former has just one, which informs us about the position that the fight against discrimination occupies in the Spanish public agenda. This office is moreover circumscribed in the municipality of Barcelona and its scope does not go beyond the local level. The other actors dealing with issues of antidiscrimination and racism are mainly NGOs many of which do not offer the possibility to file a complaint. Currently, under the activation of the Council for the Promotion of Equal Treatment and Non Discrimination, a more coordinated structure exists through a network that includes NGOs dealing with issues of antidiscrimination. These gather cases of discrimination and offer legal advice to victims, although with a clear insufficiency of resources. On the other hand, in Spain the Ombudsman offices at the various administrative levels gather some cases but the specific area for discrimination or racism is not always included in their records. Actually, the majority of cases they have are redirected from other organisations, so that an individual hardly ever goes to file a complaint due to gender discrimination and/or racism on his/her own. This can be compared to the case of Sweden where the Equality Ombudsman is the main institution dealing with discrimination claims and complaints37.

42As we can see, there is an inadequate institutional commitment to tackling discrimination in Spain visible in the lack of laws and policies’ development and in the low offer of antidiscrimination bodies with influence at the meso and micro dimensions. The fact that an individual does not know where to go and what to do is also the responsibility of the institutions. Victims’ level of awareness depends also on governmental commitments to disseminate information around existing channels across the country. The lack of promotion of equal treatment results in a lack of knowledge of the legal framework by legal agents, a lack of implementation and in the non-development of a strategic lawsuit in this specific field.

43Overall, this empirical research shows that the fact that individuals do not tend to stand up to discrimination in Spain is determined by all factors put forward at the micro, meso and macro levels. As stated throughout the article, these levels constantly interact with each other in different directions and influence the actions and strategies when individuals are faced with intersectional discrimination in what we refer to as the ‘cycle of discrimination’. The lack of articulation of an experience as discriminatory is the first obstacle to take actions against it and this is influenced by circumstances at the individual level, but also by the organisational, institutional and structural characteristics of the Spanish context in issues of antidiscrimination.

44As a result of all this, exercising rights regarding multiple discrimination in Spain is still nowadays an unusual and an insufficient praxis. Nonetheless, we could foresee that considering the recent changes in the legal and policy frameworks, greater equality can be achieved and a culture related to the use of rights in this respect further developed.

45The arguments and debate put forward in this paper have illustrated the importance of adopting an approach, both empirical and conceptual, that allows us to recognise the complexities of intersecting forms of discrimination and the way these are stood up to and resisted. The empirical review, illustrated by the case of Spain, demonstrates how a multi-dimensional perspective is useful in the analysis of the key elements playing a role in taking action against discrimination from each level and interactions between them.  Despite what appear in this research as clear examples of intersectional discrimination, it seems that there is still a long way to go before it is afforded due recognition at individual, judicial and institutional levels.

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Bibliographie

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Annexe

Research Projects and Reports

Genderace research project (2008-2010)  http://genderace.ulb.ac.be/

Todoymas Project, (2011) Ministerio de Sanidad, Política Social e Igualdad Foro 2011 para la igualdad y la no discriminación. Madrid, 2011. Available at: http://www.migualdad.es/ss/Satellite?c=MIGU_Publicacion_FA&cid=1244651557469&pageid=1244647552644&pagename=MinisterioIgualdad%2FMIGU_Publicacion_FA%2FMIGU_publicacion

RAXEN, Focal Point for Spain National, Analytical Study on Racist Violence and Crime 2002 Available at: http://fra.europa.eu/fraWebsite/attachments/CS-RV-NR-ES.pdf

RAXEN Report, Racismo, Xenofobia, Antisemitismo, Islamofobia, Neofascismo, Homofobia y otras manifestaciones relacionadas de Intolerancia a través de los hechos. Movimiento contra la Intolerancia, Especial 2010. Available at:  
http://www.movimientocontralaintolerancia.com/html/raxen/raxen.asp

European Commission report (2010) Ethic Minority and Roma women in Europe: a case for gender Equality?’

FRA report, Breaking the Barriers - Romani Women and Access to Public Health Care (01/01/2003).

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Notes

1 Chandra Talpade Mohanty (1998), «Feminist Encounters: Locating the Politics of Experience» in A. Philips (ed.), Feminism and Politics, Oxford readings in feminism, Oxford University Press, Oxford, New York, p. 254-272.

2 Leslie McCall (2005), «The complexity of intersectionality», IGNS: Journal of Women in culture and Society 30 (31): 1771-802 and Marie-Thérèse Lanquetin (2005), «Discrimination», in Margaret Mauruani (ed.), Femmes, genre et sociétés, l’état des savoirs, Paris, La découverte, p. 85-93.

3 The Genderace research project (2008- 2010) was led by the Universitat de Barcelona and the Université Libre de Bruxelles, conducted together with the Middlesex University, the Technische Universität Berlin, IMIR  Bulgaria and KALMAR University. The research for this project has received funding from the European Community’s Seventh Framework Programme FP7/2007-2011 under grant agreement n° SSH7-CT-2007-217237. Detailed information can be found in: http://genderace.ulb.ac.be/

4   Avtar Brah and Ann Phoenix (2004), «Ain’t I a Woman? Revisiting Intersectionality», Journal of International Women’s Studies, vol. 5, n°3 May.

5 Judith Butler (1990), Gender trouble: feminism and the subversion of identity, Routledge.

6 Verena Stolcke, «Is Sex to Gender as Race is to Ethnicity?» in Gendered Anthropology, ed. Teresa del Valle (London: Routledge, 1993), 17-37.

7   Kamala Visweswaran (1994), Fictions Of Feminist Ethnography, University Of Minnesota Press.

8 Toni Williams, «Intersectionality Analysis in the Sentencing of Aboriginal Women in Canada: What Difference Does it Make?», in Emily Grabham, Davina Cooper, Jane Krishnadas and Didi Herman (eds), Intersectionality and Beyond: Law, Power and the Politics of Location. Routledge, 2008.

9 Rose M. Brewer, Cecilia A. Conrad and Mary C. King (2002), «The Complexities and Potential of Theorising Gender, Caste, Race, and Class», Feminist Economics 8 (2): 3-18.

10   Anjali Arondeker (2005), «Border/Line Sex: Queer Postcolonialities, or How Race Matters Outside the United States’ Interventions», International Journal of Postcolonial Studies 7 (2): 236-50.

11   Gill Valentine (2007), «Theorizing and Researching Intersectionality: A Challenge for Feminist Geography», The Professional Geographer 59(1): 10-21.

12 Mary Hawkesworth (2003), «Congressional Enactments of Race-Gendered Institutions», American Political Science Review 97(4) 529-50.

13   Amy J. Schulz, Leith Mullings (eds) (2006), Gender, race, class, & health: Intersectional approaches,
(p. 3-17), San Francisco, CA, US: Jossey-Bass, xx, 423 p.

14 As Grabham et al note.

15 Tony Emmet and Erna Alant (2006), «Women and disability: exploring the interface of multiple disadvantage», Development Southern Africa, vol. 23, Issue 4.

16 Gudrun-Axeli Knapp (2005), «Race, Class, Gender. Reclaiming Baggage in Fast Travelling Theories European», Journal of Women's Studies, vol. 12 n°3: 249-265.

17 Mary Eaton (1993), «At the Intersection of Gender and Sexual Orientation: Toward Lesbian Jurisprudence», Southern California Review of Law and Women’s Studies 183.

18 See, for ex., FRA report Breaking the Barriers - Romani Women and Access to Public Health Care (01/01/2003), or the 2010 European Commission report Ethic Minority and Roma women in Europe: a case for gender Equality?.

19   L. McCall, (2005), «The complexity of intersectionality», Signs, 30 (3): 1771-1800.

20 L. McCall, (2005), «The complexity of intersectionality», Signs, 30 (3): 1771–1800.

21 More information can be found here http://www.errc.org/en-research-and-advocacy-roma-details.php?page=5&article_id=3564

22 In Spain, a document of official family registration.

23 This can be seen in the records of SOS Racism, www.sosracisme.org and Antidiscrimination Office of Barcelona.  

24 (GENDERACE-UB-CL8) Translation by author.

25 (GENDERACE-UB-CL9). Translation by author.

26 José García Añón, «Garantías jurídicas frente a la discriminación racial y étnica de los inmigrantes: examen de la aplicación de la agravante por motivos racistas» to José Calvo González (coord.), Libertad y seguridad. La fragilidad de los derechos, Málaga,Sociedad Española de Filosofía Jurídica y Política, 2006, p. 61-83.

27 Available at http://www.migualdad.es/ss/Satellite?c=MIGU_Publicacion_FA&cid=1244651557469&pageid=1244647552644&pagename=MinisterioIgualdad%2FMIGU_Publicacion_FA%2FMIGU_publicacion

28 Available at www.fra.europa.eu/fraWebsite/attachments/CS-RV-NR-ES.pdf

29   (GENDERACE-UB-CO5) Translation by author.

30 Miguel Ángel Aguilar. Further information can be found at
http://www.movimientocontralaintolerancia.com/html/raxen/raxen.asp

31   The equality law 3/2007 (in Spanish, Ley Orgánica 3/2007 para la igualdad efectiva entre hombres y mujeres) protects individuals from direct and indirect discrimination in issues of gender.

32   This is the Council for the Promotion of Equal Treatment and Non Discrimination of People due to their Racial or Ethnic Origin More information can be found in:  
http://www.igualdadynodiscriminacion.org/ss/Satellite?language=cas_ES&pagename=ConsejoNoDiscriminacion%2FPage%2FCND_home

33 In Spanish, Proyecto de Ley Integral para la Igualdad de Trato y No Discriminación.

34 In Spanish, Autoridad para la Igualdad de Trato y la No Discriminación.

35 These are racial or ethnic origin, gender, sexual orientation, age, disability and religion or belief.

36 HALDE stands for the French Equal Opportunities and Anti-Discrimination Commission (in French Haute Autorité de Lutte contre les Discriminations et pour l’Egalité)  www.halde.fr

37 In Swedish, it is called Discriminerings Ombudsmannen (www.do.se). This was established in 2009 to replace the Equal Opportunities Ombudsman, the ´Ombudsman against Ethnic Discrimination’ the Disability Ombudsman and the Ombudsman against Discrimination because of Sexual Orientation.

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Pour citer cet article

Référence électronique

Olga Jubany, Berta Güell et Roisin Davis, « Standing up to Intersectional Discrimination: a Multi-dimensional Approach to the Case of Spain », Droit et cultures [En ligne], 62 | 2011-2, mis en ligne le 10 mai 2012, consulté le 30 octobre 2014. URL : http://droitcultures.revues.org/2752

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Auteurs

Olga Jubany

Olga Jubany est docteur en sociologie de la London School of Economics and political Science. Son  expertise s’étend au champ de la cohésion sociale, de la discrimination et du contrôle social, en lien avec le genre, la migration et l’identité. Le Dr Jubany est professeur au Département d’Anthropologie sociale de l’Université de Barcelone ; elle assume également la fonction de chercheuse senior au sein du Groupe de Recherche sur l’Exclusion et le Contrôle Social (GRECS) et est Directrice de l’Unité de Recherche sur l’Europe Sociale (www.ub.edu/ESRU). Elle participe activement au débat académique international et parmi ses nombreuses publications, la plus récente est la suivante : «Constructing truths in a culture of disbelief ; Understanding asylum screening from within», International Sociology, 26 (1), Sage Publications, 2011.

Berta Güell

Berta Güell est diplômée en Sciences politiques de L’Université autonome de Barcelone (UAB), a un Postgraduate Degree en ‘Immigration et accueil’ et un MA en recherche sociologique de l’Université de Barcelone. Son expérience inclut  des projets interculturels sur l’Amérique Latine et l’Allemagne ainsi que sur la discrimination. Elle était la responsable du travail de terrain espagnol dans le cadre du projet européen Genderace et a, à ce titre, procédé à une analyse des données et à l’élaboration de rapports comparatifs européens et nationaux. Elle est actuellement en charge du travail de terrain et de l’analyse des données du projet européen TEAM (www/ub.ed/TEAM).

Roisin Davis

Roisin Davis est diplômée en sociologie et en Histoire de l’université Queen de Belfast, a un Postgraduate Degree en ‘Immigration et accueil’, et un MA inter-universitaire  en Histoire économique (Universitat de Barcelona/UAB/UNIZAR). Ses domaines de recherche portent sur la discrimination, les relations de genre, et la santé principalement à partir du secteur communautaire. Elle a participé à la coordination du projet Genderace et est actuellement impliquée dans la gestion, la recherche de terrain et l’analyse du projet de recherche TEAM (www.ub.edu/TEAM).

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