Reading antidiscrimination law with Crenshaw, but without Rasse?

After 60 years of obscuring Rasse in the law, it is time to start conversations about Rasse.

Thirty years since the publication of her groundbreaking article “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law” (1988) Kimberlé W. Crenshaw’s legacy continues to be powerful, particularly in Germany. In this article—listed in the top ten of the most influential writings of American legal thought— Crenshaw gives a compelling account of the ambiguities of a specific antidiscrimination law. She concludes that neither the neoconservative nor the liberal understandings of antidiscrimination law are accurate, and therefore not really useful for the reality of oppressed groups—in her case the Blacks. Whereas the ideology of colorblindness of the neoconservatives obscures lingering racial disparities, she argues, the so-called Crits (critical legal theory) fail to acknowledge the inherent legal agency of minorities. Even though Crenshaw principally agrees with the Crits’ claim that law substantially is a tool of domination, she advocates for a pragmatic use of legal rights.

Crenshaw in her next article “Demarginalizing” (1989) pursues and couples her critique of antidiscrimination doctrine with a Black feminist perspective. In this highly cited article, the subjects of her criticism are the courts, particularly the white feminists, and the male-oriented antiracist identity politics for their single-axis conception of antidiscrimination law. Here as well, Crenshaw’s main thread is to develop an empirically and historically informed understanding of antidiscrimination law in order to mobilize the law to fight symbolic and material discrimination of Blacks, in particular of Black women. In both articles, Crenshaw shows us the necessity of reading antidiscrimination law as the result and part of a long history of intersectional oppression and liberation.

It is this critical engagement towards the conservative and liberal politics on the one hand, and the contextual nexus of law and power on the other hand, that has been formative for critical race scholars in Europe. My comparative research of Crenshaw’s race critique and the many activist insights in Germany and elsewhere sharpened my observations towards a specific politico-legal ideology, which I have called ‘German exceptionalism’. This ideology is a set of ideas and practices in the post-holocaust space and time, which constructs the German context as an exceptional racial context, where there is no place for any reference to Rasse. “Because of our past, we can not use Rasse…” goes the argument. For an antidiscrimination lawyer who knows that Rasse is omnipresent in German, European and International laws, then the ideology of German exceptionalism becomes highly problematic, not to say counterproductive.

While there was a necessity of investigating the doctrinal meaning of race in German antidiscrimination law, a true anti-race discourse emerged around 2010. Preluded and strongly advocated by the German Institute for Human Rights, the goal of this campaign was and still is to remove the term ‘Rasse’ from the constitution and other relevant norms. Some minority and anti-racist organizations have endorsed this anti-Rasse position as well. The similarities between the US and German discursive and doctrinal contestations are quite striking. Like Crenshaw’s colorblind conservatives who believed racism has been overcome, also in Germany there are legal scholars, judges and practitioners who think racism belongs to the past: “Racism is what the Nazis did”. Therefore, the race equality clause in Article 3 of the German Basic Law, for example, is basically interpreted with the goal “to prevent Nazi-like policies”. Hence, it is no coincidence that until today, there is only one decision of the German Constitutional Court regarding race discrimination in Article 3 of the Basic Law. This decision is from 1968 and concerns the unconstitutional expatriation a Jewish German Citizen. So here, for a critical race scholar, it becomes crucial to advocate for a broader understanding of race and structural discrimination within contemporary German constitutional doctrine. Legal issues such as racial profiling, disparate impact or indirect discrimination and affirmative action inherently rely on the legal category Rasse. These issues make the importance of race in constitutional doctrine visible. After 60 years of obscuring Rasse in the law, it is time to start conversations about Rasse.

Some green and leftist politicians, institutions, (feminist) legal scholars, and anti-racism activists, however, sabotage this necessary critical race intervention for an emancipatory doctrine of Rasse. According to this anti- Rasse position, there cannot be a single reference to Rasse in the law because “there are no biological races”. Like Crenshaw’s liberals who were skeptical towards the use of antidiscrimination law, today we see that the (predominantly “liberal”) anti-Rasse position is reluctant to use Rasse. In both contexts, it seems to be that there is structural failure to understand the true meaning of racial legal thinking in the context of anti-discrimination law. As for the German context, all share the same outcome: There is no need for Rasse. For some, Rasse belongs to the past, and for others there shall be no future for Rasse in Germany. A careful reading and translation of Crenshaw’s work to Germany and Europe makes it possible to deconstruct the ambiguities of these contested ideologies of antidiscrimination legislation.

Those who oppose Rasse in the German context would be advised to delve into the deeper meanings of race generally and Rasse in Germany more specifically. This is also essential for a proper understanding of intersectionality, because there is no race without intersectionality and no intersectionality without race. A short look at Crenshaw’s intellectual path makes this “constitutive role of race in intersectionality” (Crenshaw, Post-script, 224) illuminating: She is not only the co-founder of Critical Race Theory but also the co-mother of the critique of intersectionality. Therefore, future scholarship on racism and intersectionality in Europe should aspire to develop a contextual understanding of race, in the German context of Rasse. Like gender, class, religion, sexuality, disability and age also race is a social category to be included in the conceptualization of intersectionality. Admittedly, race is constitutive for racism but not every reference to race implies racism, e. g. emancipatory racial identities such as Blackness. Hence, without a profound understanding of Rasse as a social (and legal) construction, every work on intersectionality and racism— and thus of anti-racism—in Germany is deemed to be limited. If Geschlecht, for example, is a valid (legal) category of analysis, then so should be Rasse. I believe—and based on the many Critical Race Theory Europe events Crenshaw and I co-organized from 2010 until today—this would be Crenshaw’s message to her white and/or German feminist colleagues.