The Importance of Intersectionality in Legal Arguments


Earlier this month, I spoke about intersectionality in legal arguments with first-year law students in the Access to Justice course at the University of Windsor, Faculty of Law.

I was on a panel with Raj Dhir, Executive Director and Chief Legal Officer at the Ontario Human Rights Commission, and Shushanna Harris, Federal Prosecutor, agent for PPSC at Frost Wilson LLP. The panel was moderated by Hassan M. Ahmad, a doctoral candidate at the University of Toronto, Faculty of Law.

What is Intersectionality?

I try to approach all problems with intersectionality in mind, but the legal regimes I often work with do not directly incorporate this concept. These legal regimes include the Consent and Capacity Board and estate litigation and Substitute Decisions Act matters at the Ontario Superior Court .

The LEAF publication Intersectionality in Law and Legal Contexts discusses intersectionality, among other ways, as follows:

Intersectionality is perhaps best known for its call to recognize the ways that multiple social identities intersect. Looking at a problem through an intersectional lens reveals that “social categories such as race, class, gender, sexualities, abilities, citizenship, and Aboriginality among others, operate relationally; these categories do not stand on their own, but rather gain meaning and power by reinforcing and referencing each other.” When oppressions on the basis of two or more identity categories intersect, a new form of oppression is created that is different from the constituent forms of oppression added together. So, understanding oppression based on intersecting identities, like race and gender, is not a matter of adding together the harms of race discrimination and the harms of gender discrimination, but instead requires consideration of the unique and indivisible kind of oppression that results from the interplay of the two in a given  context.

At best, legal service providers such as myself, the judicial system and the laws it applies are not permitted to discriminate. However, the idea that we ought to be rooting out intersectional forms of oppression while taking our client’s instructions or examining every legal test is not built into the legal system (even if it should be).

Intersectionality and Better Client Advocacy

During the panel, I tried to address a few of topics related to intersectionality. This blog post focuses on the importance of intersectionality in legal arguments.

I describe below two ways lawyers can better advocate for their clients by being sensitive to the intersectional context.

  1. Intersectionality and Knowing Our Clients

At the outset of the lawyer-client relationship, it is important for lawyers to remember our role, position and power. We advise on the law, but we should not impose our own views on the client. In other words, my role as counsel is not to replace my client’s voice with my own voice.

Instead, I see my role as helping bring the client’s voice, perspectives and interests to the attention of the parties and the decision maker. Adding my legally trained and experienced lens is an important part of the equation. However, I try not to let my clients defer to how I might characterize their problem because they think I’m the lawyer and know better. Here, I attempt to be mindful of my own privilege due to my position as a lawyer not in the midst of a legal, health or social crisis. This may result in instructions taking a bit longer to uncover, but I think results in a more authentic and effective experience for my clients.

A key part of presenting the client’s voice is getting to know them, their interests and what is motivating the client’s requests of me. I cannot begin to understand a client’s interests without being informed about their social history and, in many cases, the role their culture, gender, race, class, sexuality or whatever else has had on their response to their situation.

  1. Intersectionality and Advocating for Clients

An approach that is sensitive to the intersectional context does not only live behind closed doors with the lawyer-client relationship. It is an important tool in the toolkit when advocating on the client’s behalf.

For instance, it can help with coming up with new and creative arguments, including a path to undercut experts that you are up against. For example, in the very interesting case of Ewert v. Canada (Correctional Service), the applicant, who identified as Métis, asserted that the psychological and statistical tools that were routinely being used on him and other inmates were not validated for use on an indigenous population, which the Court accepted. If you are interested in reading more, check out this case brief about Mr. Ewert’s case.

Context, especially the often-overlooked intersectional contexts, may be the key to presenting the narrative that will achieve our client’s goals in any case.

Thanks for reading.

-Alex

To discuss discrimination or capacity-related legal issues with Alex Procope or any other PBP lawyer, please contact us at 416-320-1914 or contact@pbplawyers.com.

 

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