Kimberlé Crenshaw’s influence on my thinking with regard to transformative justice

Let's start at the Critical Race Theory again.

I met Kimberlé Williams Crenshaw at the Humboldt University Berlin in 2009. Like many other gender studies scholars who attended her evening lecture, I had studied her work in-depth. That evening, however, I learnt about a significant part of her approach that I was barely familiar with. She presented her theory of intersectionality as a “travelling concept”. “Travelling concept” here refers to an idea that is conceived in a very specific geopolitical context and at a very specific time, but whose utility can extend far beyond this context and time. Intersectionality has in fact now taken on a distinct significance for all those looking to connect and identify politically significant differences and their associated power structures. Unfortunately however, when this concept was transferred to the German content, the substantial foundation of intersectionality in critical race theory and the CRT movement of Black legal scholars was ignored and effectively erased. According to Kimberlé Crenshaw, the travelling theory of intersectionality or whatever remains of it, often resembles that alien character E.T. from the eponymous children’s film. E.T. desperately tries to call home is however unable to establish a connection because crucial elements that constitute the specific connection are missing.

The CRT movement’s understanding of equal justice

The CRT movement gained its initial impetus from the BPoC (Black people and People of Color) networks of legal scholars in North America. The emergence of this equal-justice-oriented network was shaped by critical examinations of racism using feminist-Marxist critiques of inequality of the uneven distribution of legal remedies in the legal system. Justice, was regarded as a social resource primarily oriented towards and thus privileging of the life and work realities of white middle-class able-bodied men. This orientation, if it were only a fraction of a plurality of orientations, would not even be especially problematic. However, if this becomes the norm and thus the default position, it must be challenged strategically. This norm-setting, according to Crenshaw, makes it easier for white, middle-class men to mobilise the legal resources necessary to protect and advance their lives, their perspectives on reality and their specific social experiences. For racially marked workers low in resources, on the other hand, this norm-setting, Crenshaw believes, produces significant social barriers when it comes to the mobilisation of effective legal remedies. This causes a protection gap for Black Women* workers already confronted very high risks of discrimination. Their discrimination, Crenshaw explains, exists both in the workplace as well as in the routines of the justice system itself.

Making visible and debating in public the extensive and multi-layered marginalisation of Black working class Women*

The theory of intersectionality is generated from the workplace situation of Black Women*. In the case of “Emma DeGraffenreid vs. General Motors (1976)”, five Black Women* workers in St. Louis (USA) sued their former employer (GM). Black Women* as a marginalised group were hired especially late to the GM workforce compared to other social groups. The company policy of “last hired, first fired” impacted Black Women* harshly and disproportionately. They were the main target of mass layoffs for operational reasons. Their discrimination lawsuit was however dismissed as being groundless. The court reasoned that there was no discrimination based on race, after all Black men worked on the assembly line at GM. Discrimination based on sexism was not established either, because several white Women* were present as office workers at GM. Black Women* were considered sufficiently represented in the workforce of GM if Women* in general were employed there or if Black men continued to be employed. The difficulty of substantiating evidence of discrimination was compounded by the fact that the plaintiffs were marginalised as a result of more than one politically significant difference. The plaintiffs were discriminated against not only as Women* nor only as Black people, but rather very specifically as racially marked female subjects. The innovative and the political force of intersectionality theory lies in its capability to perceive the complex and entangled layers of marginalisation and to make this a subject of debate and contestation. The aim here is to carve out structural similarities between socially constructed differences and their interrelationship and to understand their compounded 28 power to do harm. Both the gender order and the racist structure at GM made it impossible for Black Women* to enjoy the benefits of long employment within the company, let alone to advance in it and get promoted.

Political intersectionality as a new equal justice infrastructure strategy

Kimberlé Crenshaw has visited Berlin at least once a year since 2009. Her efforts to set up a CRT Europe together with intersectional justice activists aims at reclaiming intersectionality’s original context, i. e. drafting and enforcing legal solutions for multiple marginalised groups and for subjects who are at high risk of discrimination. Following parameters are crucial to this endeavour: ‘Specific race projects’, the specific way in which racist structures came about and are anchored socio-historically in the German context, must be understood. The way in which the judicial system is involved in the (re-)production of racist conditions must be understood. Example rulings where racist conditions play a decisive role must be obtained or compiled into a database. On the basis of these rulings (as in the key case of “Emma Degraffenried vs. General Motors”) the intersectional significance of the barriers in the way of a fair ruling must be understood, specifically for the German context. According to Crenshaw, political intersectionality means in effect that legally effective measures can only only judged by the extent to which they are capable of making visible the circumstances of the most marginalised members of dehumanised groups and of alleviating their specific discrimination. The mobilisation of legal resources aims at achieving justice for those who suffer the highest risk of discrimination. I, along with Peggy Piesche and Katja Kinder, am currently employing Crenshaw’s notion of political intersectionality to structure and consolidate an 29 intersectional justice perspective using the Berlin-based consultation process “Making visible the discrimination and social resilience of People of African Descent” as part of the UN Decade for People of African Descent 2015–2024. Our aim to design effective equal protection strategies for Berliners of African descent is based, following Crenshaw, on the premise of legal recognition and the subsequent acknowledgement, implementation and enforcement of equality of access to legal remedies. In a deeper sense, it is based on recognising and making visible the inner diversity including internal patterns of inequality within the Black experience. Political intersectionality is a crucial resource and benchmark for the implementation of diversity and equal justice project within and for the Black Communities of Berlin.