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Testimony: Intersectional Discrimination Protection Amendment Act

Updated: Oct 28, 2021

B23-498, Intersectional Discrimination P
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National Organization for Women, D.C. Chapter B23-498, Intersectional Discrimination Protection Amendment Act - SUPPORT

Dear Chairman Mendelson and Councilmembers:

We are writing to urge you to support B23-498, the Intersectional Discrimination Protection Amendment Act. We represent the D.C. Chapter of the National Organization for Women. As such, we advocate on behalf of the hundreds of thousands of women constituents, the majority of whom are women of color, living and working in the District of Columbia. We support the passage of B23-498, which would extend anti-discrimination protections to over 200,000 women who currently have no express legal recourse against discrimination that is based on both their sex and a second protected category, especially race, color, and ethnicity.

B23-498 represents a small but impactful correction to currently insufficient anti-discrimination law. The bill, which would provide legal grounds for “intersectional” claims under the D.C. Human Rights Act (DCHRA), does not reinterpret or rewrite law, but rather closes a loophole in DCHRA that allows for discrimination against individuals materially belonging to more than one protected class — most notably black women and other women of color. This updated application of the law more accurately reflects the experiences of black women and other women of color, who may not experience discrimination as either racial minorities or as women, but rather as an inseparable combination of the two. For example, neither a white woman nor a black man can claim the experience of a black woman; that is because the overlapping experiences of being both a woman and black is a distinct experience in itself. Similarly, the discrimination against specifically black women is also distinct, yet the current legal framework does not acknowledge this fact.

In practice, this means women of color can legally be discriminated against if white women and men of color are both not discriminated against in the same situation. To use another example, disabled women could be legally discriminated against if able-bodied women and disabled men are both not discriminated against in the same situation. Legal scholar Kimberlé Crenshaw, who coined the term “intersectionality,” points to the case DeGraffenreid v. General Motors in which General Motors would not hire black women specifically yet hired white women and black men. When black women sued, their claim was denied on the grounds that “black women” do not constitute a protected class — only women in general or black people in general. Moreover, the court completely ignored the fact that 100 percent of the black men employed by the company were in positions of manual labor, and 100 percent of the white women employed by the company were in secretarial positions, while all of upper management consisted of white men.

This loophole is a legal failure to understand how millions of individuals are discriminated against in real life. Similarly, DCHRA’s current failure to take an intersectional approach permits discrimination against the most marginalized in our society, namely black women, and other women of color. Ironically, that DCHRA does not yet recognize individuals with multiple protected traits is a perfect example of how being both a woman and a racial minority subjects women of color to a unique form of intersectional discrimination.

The primary argument against the B23-498 and similar reforms is that it may create new protected classes. In DeGraffenreid v. General Motors, the presiding judge believed that admitting intersectional claims would open a "Pandora's Box" of infinite protected classes. In practice with B23-498, only a combination of those characteristics explicitly outlined in DCHRA could form the basis of an intersectional discrimination claim. Such claims are not likely to be made frivolously as they are harder to prove and would require higher quality evidence to substantiate. Rather than generating uncountable hypothetical protected classes, B23-498 would reshape DCHRA to reflect a real-world understanding of how individuals are discriminated against in practice.

We thank the Chairman and all Councilmembers for their consideration of Amendment B23-498, and we strongly urge its passage by the Council. In closing, it is important to account for intersectional experiences in our diverse city, as the current DCHRA loophole leaves many tens of thousands of people, especially women of color, without adequate legal protection. Sincerely, Rose Brunache, President Madeline Bennett, Vice President Emma Atlas, Director of Communications


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