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But, there are no explicit provisions in CEDAW that refer to the interaction of sex and gender with race, despite the concept of “intersectionality” having been long established in sociological circles since the 1980s, and a frequently used term in general anti-racism discourse since the Black Lives Matter movement in summer 2020. Whilst CEDAW’s aims are of course admirable and important, in its current form is it fit for purpose for Black women, or indeed any woman of colour?
Professor Kimberly Crenshaw’s concept of “intersectionality” emphasises that Black women’s oppression should not be analysed exclusively as gender discrimination or race discrimination. She states that “sometimes Black women experience discrimination as Black women-not the sum of race and sex discrimination, but as Black women (1).” For example, Black women’s reported maternal deaths in the UK are up to four times higher than white women. To understand the full extent of this reality, we must understand that it is more than just gender based, but is compounded by other aspects of their identity, increasing their chances of death during childbirth. Race, and most likely class, create a different set of issues for Black women that can’t be unpicked if we only look through the lens of gender to define and resolve these inequalities. The recent case of Child Q, a fifteen year old Black British girl who was strip searched at school by the police due to being suspected of being in possession of cannabis, cannot be separated from her gender, nor her race. There are continued issues in policing that impact women, black people and working class communities; Child Q is a victim of all these forms of discrimination.
It’s arguable CEDAW is very steeped in “grounds-based” discrimination law, which is common in many countries. An individual has to state what aspect of their identity is being discriminated against, and be unable to present a more complex picture of how their different identities create multiple forms of interacting discrimination, and the root causes of this discrimation is then much harder to tackle. CEDAW also appears to adopt a single ground approach.
There are also signs in the interpretation of CEDAW by the CEDAW Committee, that the resolution has the capacity to be more fluid, to solve the issues impacting Black women, and other intersectional identities. The general recommendation no. 25 on temporary special measures made by the Committee has observed that “certain groups of women…may also suffer multiple forms of discrimination” and general recommendation no. 28 held that “gender is inextricably linked with other factors that affect women”. Further recommendations have also specifically called for “poverty”, “armed conflict” and “access to justice” to be under the remit of CEDAW as intersecting issues with gender.
But the application appears inconsistent. In some cases CEDAW committees have gone into greater depth into intersectionality, such as acknowledging in Canada the material discrimination native women face such as poor housing, healthcare and high unemployment, are inextricably linked to their race and gender. But in other cases it’s simply not been acknowledged. Texira was a rural Afro-Brazilian woman who died shortly after delivering a still baby. Though the CEDAW committee recognised that race and socio-economic background were key to discrimination and subsequent death, Campbell states “in the substantive decision there is no detailed assessment of how her multiple identities contributed to her death and there is no reference to intersectional discrimination in the CEDAW Committee’s recommendation (2).” The inconsistency and lack of clear precedent is simply not enough to tackle the discrimination that Black women, or women of colour in general face.
CEDAW has the beginnings of a legal framework that can help to globally tackle gender-based discrimination, but without explicit protection in the resolution of the intersectional nature of most women’s experiences, it cannot yet be said that it is fully fit for purpose. Black women face a specific set of discriminations- legal frameworks need teeth to ensure they can defend the rights of all women, and challenge the discrimination all women face.
Banseka Kayembe is a freelance writer, focusing on issues around race, gender and young people. She’s written for publications such as British GQ, Vice UK, British Vogue, The Independent, and more.
She is also the founder and director of Naked Politics, an organisation that engages young people in political issues, and provides a platform for their voices.
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