A critique of the Methodology of Anti-Discrimination Law from the Perspective of Intersectionality

Although discrimination and inequality are the most common terms in the anti-discrimination law discourse, the methodology of discrimination has been less discussed among legal scholars. The predominant method of legal recognition of grounds of discrimination is based on criteria of immutability and fragmentation in single-axis discrimination and the application of an additive approach to discrimination based on more than one ground. The burden of proof is also based on applying a comparison test regarding double or multiple division. This article uses intersectionality as an analytical tool to highlight the weakness of the anti-discrimination law methodology at both the normative and procedural levels in recognizing grounds of discrimination and establishing an intersectional claim. Essentialism in the experience of discrimination, narrow, exclusive, single-axis and separate definition of the grounds of discrimination and its recognition criteria, the method of proving discrimination and applying a limited comparison test based on the discriminant / discriminated duality without considering the complexity of every case is a critique of the methodology of discrimination. Following the critique of the dominant approach, an approach with an emphasis on jurisprudence introduces the methodology of intersectional discrimination based on the principles of relationality and context with flexible, necessary, and comprehensive comparisons. The authors try to pay more attention to the use of intersectionality as a method in law along with the level of theory. A methodology that continues to adhere to the underlying structure of anti-discrimination law but provides a more accurate understanding of the reality of the phenomenon of discrimination.