By Amalee Beattie, Equal Justice Society, Berkeley Law Public Interest Fellow

Under the laws of the federal and most state governments, discrimination on the basis of a protected characteristic – such as race, sexuality, gender, age, disability, etc., – is prohibited. However, protections under this framework have historically been interpreted in a very limited way, that is, there can be bias against one of these traits but generally not bias claims based on the combination of multiple traits.  This tradition ignores the reality of individuals who hold multiple protected characteristics, such as Black women or Latinas. Racism and sexism may hit women of color, and Black women in particular, more profoundly due to the combination of hostility to women, hostility to Black people, and hostility in particular to Black women.  Thus, the law of bias has left Black women and others with inadequate legal claims and remedies to address their specific experiences of discrimination. 

On February 14, California State Senator Lola Smallwood-Cuevas introduced SB 1137, a bill that would clarify California’s anti-discrimination laws to explicitly prohibit discrimination based on the intersection or combination of two or more protected traits. The bill would significantly strengthen the ability of Black women, and other people who experience multiple forms of discrimination, to bring discrimination claims based on treatment they experience due to a combination of two or more characteristics (for example, racism and sexism, racism and transphobia).  This new law would seek to prevent perversions of justice that have happened in prior cases. 

For example, in Lam v. University of Hawaii (9th Cir. 1994), a hiring discrimination case brought by an Asian woman, the lower court allowed the employers to defend itself by arguing that it did not discriminate against the Asian woman because it had hired  an Asian man and White women. This argument entirely misses the unique experience in trying to get hired that an Asian woman may have as compared to an Asian man or white woman.. (Fortunately, the appellate court t later reversed the Lam court’s ruling.)It is crucial to recognize that allowing only for neatly separable claims of race discrimination or 

gender discrimination ignores reality. 

This phenomena is what law professor Kimberlé Crenshaw sought to explain when she coined the term “intersectionality” in 1991: “Intersectionality is a lens through which you can see where power comes and collides, where it interlocks and intersects.”ⁱ Crenshaw’s work refers specifically to how U.S. civil rights law has ignored the unique experiences of discrimination faced by Black women. 

Crenshaw describes how, in both social and legal settings, the experience of Black heterosexual, cisgender men is often upheld as the “typical” Black racial experience, while the experience of white heterosexual, cisgender women is upheld as the “typical” women’s gendered experience. But while a Black woman might experience discrimination when seeking healthcare based on gender or race, she might also experience discrimination based on both gender and race; she is exposed to a set of stereotypes and assumptions that neither Black men nor white women experience. 

SB 1137 would explicitly prohibit this kind of intersectional discrimination, and direct courts to treat intersectional claims consistently. 

The bill has the potential to substantially e impact the ability of people facing intersectional forms of discrimination to seek justice. Black women with the capacity for pregnancy have a maternal mortality rate 2.9 times higher than similar white women.ⁱⁱ  American Indian, Black, and Latinx transgender patients report higher rates of medical harassment than white transgender patients.ⁱⁱⁱ Black women are incarcerated at twice the rate of white women, which can lead to health complications brought on by poor prison conditions.^iv And the US prison and the foster care systems work together to disparately harm Black mothers, necessitating, as argued by Dorothy Roberts, Professor of Law & Sociology at the University of Pennsylvania, “cross-movement strategies that can address multiple forms of systemic injustice.^v Yet, because existing law does not formally recognize these realities, plaintiffs seeking redress for intersectional discrimination and harm cannot achieve justice under the laws. SB 1137 would formally recognize the way discrimination actually operates for those of us with more than one protected characteristic that has historically suffered bias, and greatly clarify the path to achieving remedies for intersectional harms. 

The original intent of California’s anti-discrimination laws and similar federal legislation was to end systemic discrimination impacting Black people as a group.  Other historically marginalized communities have amplified and expanded these laws in the fight against white supremacy and other forms of bias. SB 1137 arises from and reflects this history, and would advance the objectives of these protective laws.