Queer Intersectionality: Why Laws Need To Advocate for Inclusivity Against Essentialism

Intersectionality is an analytical tool for observing, understanding and responding to the ways in which gender intersects with other constructs like caste, class, race, sexual orientation, and how such intersections result in creating unique experiences of oppression and privilege. Intersectional analysis directs that we should not understand the combining of identities as additively increasing one’s burden but instead as producing substantively distinct experiences.
In other words, the aim is not to show that one group is more victimized or privileged than another, but to reveal meaningful distinctions and similarities in order to overcome discriminations and put the conditions in place for all people to fully enjoy their human rights.[1]
Such studies help us to not only resist oppression but also help us to fight exclusion. For example intersections of gender identity, class, occupation and ethnicity created a new identity amongst trans women who termed themselves as ‘travesti’.[2] They started using the term to lobby for recognition of their rights and have successfully managed to make policy changes to include them in society and have gained respect as an identity.
The struggle for human rights for LGBTQIA+ people is often perceived as a separate struggle from the struggle of race, gender, disability, religion, and class. We often fail to recognize that people from all these groups exist within the LGBTQIA+ community as well. Several people with intersectional identities suffer unique paradigms of oppression, discrimination and exclusion.[3] Social injustice is impossible to eliminate in isolation and intersectional approaches must be taken by leaders and advocates for LGBTQIA+ rights to make pivotal links between various forms of oppression and discrimination to achieve the elimination of social injustice.[4] Intersectionality must inspire human rights advocates to collaborate and work together and support various interlinked movements such as women’s rights, worker’s rights, indigenous rights, rights for people with disabilities to battle queer marginalization, exclusion and violation of their rights and to battle gender, class, heterosexual and cisgender privilege that are hegemonic norms protected by laws and encourage judiciaries to include intersectional identities within the scope of protection under the law.[5]
A uniform ‘queer’ experience does not exist as intersections of class, gender, race, religion etc create unique queer experiences. Queer communities have a wide range of legal needs that are specific to class, race, gender and sexual identity. Court cases that are viewed as ‘legal victories’ for the queer community may benefit some queer folk over other. Achieving change through litigation can be dangerous because it tends to marginalize and essentialize issues that result in social and legal exclusion of people with intersecting identities which further divides people and the political strength of a community.Queer legal programs must take into account multiplicity to ensure inclusion. The law promotes a queer identity that ignores the intersectional aspects of the queer identity.
The word “queer” was originally used to represent a broad group of social outcasts who did not fall within the social hegemony of behavior and practice.[6] The word ‘queer’ has a historically negative connotation and hence this complicates how we transition from viewing this identity from negative to positive because when a person says ‘queer’ it automatically directs us to a historically negative connotation.[7]
However the word ‘queer’ tries to prevent the essentialism that comes with terms like ‘lesbian’ and ‘gay’ and the word tries to include various kinds of non-hegemonic sexual orientations and gender identities.[8] The essentialism that comes with the words ‘gay’ and ‘lesbian’ are very exclusionary and legal scholars have claimed that not only are they inaccurate[9] but also very destructive.[10] However the word ‘queer’ not only includes lesbian and gay identities but also signifies the destruction of heterosexual hegemony in society and law. [11]
Therefore the word ‘queer’ even though has been historically negative used in the context of LGBTQIA+ issues is a political category that recognizes intersectional differences and has a broad scope to include people as the community expands and changes in nature.[12] Hence I advocate for the use of the word “queer” instead of terms like ‘lesbian’ and ‘gay’ in law and it’s practice to allow a large marginalized community to benefit protections from such laws.
Audre Lorde in Sister Outsider: Essays and Speeches said, ““As a Black lesbian mother in an interracial marriage, there was usually some part of me guaranteed to offend everybody’s comfortable prejudices of who I should be.”[13] In her book Ain’t I A Woman?, Bell Hooks criticized the feminist movement appropriated by predominantly white women for universalizing the experiences and notion of ‘being a woman’ that excluded the experiences of a black woman.[14] Similarly appropriating a universal ‘queer’ experience without specifying other aspects to their social standings creates a false universe in law that ignore and exclude different queer experiences. They are discriminated as a result of their intersectional identities that cannot be explain by only a ‘gay’ perspective or from a ‘black’ perspective or solely ‘a woman’s’ perspective. Kimberly Crenshaw a legal theorist describes this phenomena, “Black women are sometimes excluded from feminist theory and antiracist policy discourse because both are predicated on a discrete set of experiences that often does not accurately reflect the interaction of race and gender. These problems of exclusion cannot be solved simply by including Black women within an already established analytical structure. Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated. Thus, for feminist theory and antiracist policy discourse to embrace the experiences and concerns of Black women, the entire framework that has been used as a basis for “translating women’s experience” ”[15]
The multiplicity of the discrimination that queers have to face is far greater and different than anti-lesbian or anti-gay sentiments. Anonymous Queers describes this experience, “”Being queer . . . means everyday fighting oppression; homophobia, racism, misogyny, the bigotry of religious hypocrites and our own self-hatred.”[16] We must recognize the weave of oppression in law to allow legal strategists to address queer issues without ignoring the unique way women, color, class, cross-gender etc face anti-queer oppression. This will allow a predominantly white, middle class lesbian and gay legal community to litigate in a way that protects and provides rights without excluding anyone in the community.
In the case DeGraffenreid v. General Motors[17] legal scholar Kimberly Crenshaw points out how the federal district court was unable to grasp or address the concept of intersectional discrimination. The court held that black women could be protected only in circumstances where their experiences coincided with that of two hegemonic groups- black men or white women.[18] Court have been observed to recognize discrimination pertaining to a specific hegemonic class. Courts view lesbian and gay issues only focusing on the topic of sexual orientation or gender who barring that trait would not have been a victim to discrimination.[19] Ruthann Robson has coined the term “but-for-queer” as someone who if not for being queer would have been perfect in the hegemonic sense.[20] We need to advocate for the change in juridical norms to include class, sex, race and sexual practice amongst other identities to end exclusion and to view issues in a non-essential and non “but-for” queer fashion.[21]
Legal needs of queer folk differs based on intersectionality- for example- poor queer people may not have access to litigation the same way a rich queer does and less education and their professions may hinder them from evaluating their claims. In the case White v. Thomspon it can be noted that poor queers lack the ability to conceal behaviors that are rejected by the courts for example a queer person’s marijuana use was not concealed from the court because the person lived in a trailer that did not offer much privacy.[22] Queers of color face a different family structure and their cultural attitudes toward queerness is different from white queers that may result in them defining or perceiving their queerness differently. Due to the link between economic inequality and color, many colored queers cannot afford legal redressal. When courts rely on traditional gender norms they ignore the legal needs of sexual and gender subversive individuals. Hence, we need to advocate that the courts not use normative essentialist identities to make decisions in matters that lead to exclusion and instead acknowledge the intersections of identities and how experiences are different from the hegemonic experiences in order to protect other people facing same intersectional oppression by setting inclusionary precedents.
The case Braschi v. Stahl Assocc. Co. was the first case that recognized lesbians and gay relationships in New York, USA. The Court of Appeals laid down various factors that would serve as indicators of a relationship that would fall within the scope of the non-eviction clause-“exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services.”[23] The Court stressed that these were only indicators and not requirements to deduce if a relationship is sufficiently “family-like”.[24] When evaluating the Braschi/Blanchard couple one may suspect that the test for proving ‘family-like relationships’ was designed in a way to fit the characteristics of the couple. [25] Hence this test clearly would not include couples who do not have similar family structure as the couple in this case therefore setting this test as a dangerous exclusionary precedent. Black families have been observed to have different family arrangements and have also claimed to have been ‘broken’ by black legal feminist Angela Harris because of the labor arrangements during the times of slavery leading to very different family structures from white families.[26] A test that is created to only include family arrangements of a certain type based on the family structure of a white homosexual couple would exclude queer families that don’t fit in this arrangement. Hence Courts must develop tests and policies that account for varied arrangements and experiences due to race, class, gender etc and also understand that objective tests to determine relationships or behaviors reinforce essentialist ideas of family, relationships, and habits.[27] Hence using subjective judgements and allowing for multiplicity of narratives due to intersectionality is of prime importance.
However in India, a landmark case in the Supreme Court of India, National Legal Services Authority v. Union of India the court made an impressive observation and pointed out that transgender individuals belonging to lower castes and from lower economic groups face more violence and discrimination in the hands of homophobic citizens and the police.[28] And therefore the court directed that special measures must be taken by the State to ensure lower caste and poor transgender people are not discriminated against because they are the most vulnerable. The court here is seen to acknowledge that all transsexual individuals do not have the same experience and that caste, class and social status affects their experience in society. The court’s attempt at recognizing such intersectionality and protecting more vulnerable individuals is nothing short of commendable. However this is a man bites dog judgement as lower courts and other Supreme Court judgements have not accounted for intersectionality and we must advocate for lower and higher courts to take into account such intersectionality to protect every vulnerable member of our community. International treaties like the ICCPR, ICESCR and the Jogyakarta principles must also be interpreted keeping in mind intersectionality and blanket provisions will only lead to exclusion.
Sebversive legal institutions that exclude people by enforcing the recognition of intersectionality and hence dismantling essentialist notions of discrimination, gender roles, class structures, gay and lesbian experiences and marriages. Acknowledging and making legal precedents that are sensitive to the nuances of intersectionality will trigger a transformation in queer legal jurisprudence making it more inclusionary. Oppression by various factors like misogyny, patriarchy, class oppression, racism, casteism need to be dismantled along with dismantling queer-targeted bigotry to ensure every individual of the community is protected by the law and not discriminated against. Recognizing intersectionality is essential for the struggle for queer rights and may be the bullet that Harvey Milk refers to (in a metaphorical sense, of course) in his quote, “If a bullet should enter my brain, let that bullet destroy every closet door.”

Article by Raya Sarkar
Edited by Manisha 

[1] Intersectionality: A tool for Gender and Economic Justice, Women’s Rights and Economic Change No. 9 Aug 200
[2] Kulick, Don (1998). Travesti: Sex, Gender, and Culture among Brazilian Transgendered Prostitutes (Chicago: University of Chicago Press, 1998)
[3] Lena Williams, Blacks Rejecting Gay Rights As a Battle Equal to Theirs, N.Y. TIMES, June 28, 1993
[4] Adrienne Rich, Compulsoly Heterosexuality and Lesbian Existence, in LESBIAN AND GAY STUDIES READER 239 (Henry Abelove, Michsle Aina Barale, David M. Halperin eds., 1993).
[6] Lisa Duggan, Making It Perfectly Queer, 22 SOCIAUS~REV. 11(1992)
[7] Phillip Brian Harper, Multi/Queer/Culture, in 24 VOL~ RADICALAMFBICA 30 (1990)
[8] John Bosweil, Revolutions, Universals, and Sexual Categories, 58-59 SWGUNDI 89 (1982-83)
[9] Natalie Angier, Srudy of Sexual Orientation Doesn’t Neatly Fit Mold, N.Y. TIMES, July 18, 1993
[10] Janet E. Halley, The Politics of the Closet: Towards Equal Protection for .Gay, Lesbian, and Bisexual Identity, 36 U.C.L.A. L. REV. 915 (1989)
[11] Cheshire Calhoun, Denaturalizing and Desexualizing Lesbian and Gay Identity, 79 VA. L. REV. 1859 (1993)
[12] Janet E. Halley, The Politics of the Closet: Towards Equal Protection for .Gay, Lesbian, and Bisexual Identity, 36 U.C.L.A. L. REV. 915 (1989)
[13] Audre Lorde, Sister Outsider, Crossing Press Feminist Series Aug 2007
[15] Kimberle Crenshaw, Dernarginalizing the Intersection of Race and Sex. A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics, 1989 U. CM. LEGALE 139,140
[17] DeGraffenreid v. General Motors, 413 F. Supp. 142 (E.D. Mo. 1976).
[18] Crenshaw, supra note 23, at 143.
[19] Mark A. Fajer, Can Two Real Men Eat Quiche Together? Storytelling, Gender-Role Stereotypes, and Legal Protection for Lesbians and Gay Men, 46 U. MAMI L. REV. 511
[20] Robson, supra note 11
[21] MARILYN FRYE, Lesbian Feminism and the Gay Rights Movement: Another View of Male Supremacy, Another Separatism, The Politics of Reality 128
[22] White v. Thompson 569 So. 2d 1181 (Miss. 1990)
[23] Braschi v. Stahl Assoc., 543 N.E.2d 49,54 (N.Y. 1989)
[24] Id.
[25] Darren Rosenblum, Queer and Intersectionality and the Failure of Recent Lesbian and Gay “Victories”., Pace Law Faculty Publications 1994
[26] Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990)
[28] NALSA v. Union of India, WP (Civil) No 604 of 2013

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