Karen O'Connell (University of Technology Sydney, Faculty of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group) & Isabel A. Karpin (University of Technology Sydney, Faculty of Law) have posted Rethinking the Stress of Inequality as an Intersectional and Intergenerational Harm on SSRN. Here is the abstract:
In this paper, we examine the concept of stress in discrimination law, which is directed at redressing social inequalities. Socially disadvantaged groups have consistently described the stress of unequal treatment as pervasive and cumulative, and yet the laws that set out to redress this harm also “molecularise” this inequality into isolated incidents of discrimination. Similarly, individuals rarely understand or describe themselves according to the neat and limited identity categories of race, sex, age and disability that form the scaffolding of anti-discrimination legislative schemes.
We consider alternatives to the molecularisation of identity and harm in discrimination law, inspired in part by decades-long feminist (Haraway 1991 and 1997; Karpin and O'Connell 2015) and critical race (Crenshaw 1989) critiques of these, and in part by recent social science responses to neuroscience and epigenetics, that refer to bodies as intimately entwined with environments over time, and across generations. Gowland, for example, writes that we are no longer individual bodies in time but “bodies within bodies”, like Russian dolls “our life courses are ‘nested’ and entangled, both socially and biologically, across several generations.” (2015, 537) When we inherit bodies already compromised by inequality, we no longer live in disadvantaged environments, a “metabolic ghetto” resides in us (Wells, 2010).
How might discrimination law respond to these more complex ways of thinking about bodies and environments, when it has struggled to even integrate multiple identity categories? Taking the example of gendered experiences of disability, using case law on personality disorders, we explore some of the ways that discrimination law might rethink its reliance on individual identity categories and experiences of harm.