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Excerpted From: Marisa K. Sanchez, Modernizing Discrimination Law: The Adoption of an Intersectional Lens,23 Scholar: St. Mary's Law Review on Race and Social Justice 1 (2021) (337 Footnotes) (Full Document)

MarisaKSanchezDiscrimination has been part of U.S. history from its conception. Over time, discrimination has become more complicated and has integrated into our larger systems. As society begins to recognize the various subgroups of society--such as the LGTBQ+ community legitimate, and as more people engage with people outside of their cultures, discrimination has become even more complicated. There is no longer just White and Black, straight or gay, and woman or man. Identities are more fluid, and binaries are being deconstructed into spectrums. People are composed of multiple sets of identifies that make them who they are. With a multi-faceted identity comes multi-faceted discrimination based on all or part of one's identity. Thus, there is nuance in why a person is being discriminated against in terms of their multi-faceted identity, which may lead to confusion. While society and discrimination become more complex and socially recognized, the law is still treating discrimination as single-faceted, and those who bring intersectional claims usually fail. Over a thirty-four-year span, researchers who analyzed judicial opinions of plaintiffs who make intersectional claims reported “antidiscrimination lawsuits provide the least protection for those who already suffer multiple social disadvantages, thus limiting the capacity of civil rights law to produce social change.” Studies show how subgroups within a protected category experience discrimination differently. For example, White women and Black women experience sex discrimination differently because Black women are discriminated against more harshly for being a woman and Black. I argue that U.S. discrimination laws need to be modernized with the current state of society and oppression by addressing discrimination claims through an intersectional lens. Using an intersectional lens means understanding the basis of discrimination may be caused by part or all of one's identity and having the law reflect this complexity of discrimination.

Section II will explain what the theory of intersectionality is and how it is viewed and treated in the legal system. Using the example of the transgender Latinx community, Section III will analyze the legal issues the transgender community experiences and the legal issues the Latinx community experience. Section III will also show the various intersections of the legal issues experienced by the transgender community and the Latinx community. The intersections of the two identities will show why analyzing discrimination claims based on one or more classes separately is an injustice to someone who is a member of both classes by not showing the full picture of why a person is being discriminated against. Justice will be better served when it is determined whether a person is being discriminated against because of their membership in both identities, because of one part of their identity, or all of it combined. Lastly, in Section IV, I highlight how courts, lawyers, and law schools can better reflect and understand the complexities of discrimination by utilizing an intersectional lens.

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Our world is becoming more accepting and understanding of different kinds of people, and the law needs to catch up and be a leader in embracing the complexities of individuals in our society. Laws are supposed to protect all persons, and, to achieve that purpose, the law must reflect the complexities and uniqueness of each person in our society. Also, the law must be flexible enough to protect the unique situations that arise among a diverse population. Intersectionality recognizes multi-faceted people and understands their unique place in society can cause multidimensional discrimination. Discrimination law, as it exists today, does not recognize the multi-faceted identity. Law schools, lawyers, the legislature, and the legal system as a whole can play their own integrals roles in normalizing intersectionality in the law. All people are made up of a series of factors defining who they are. We would all benefit from the adoption of intersectionality in the law, especially those of us whose complex identity is a target of multi-axis discrimination. The time has come for the law to be updated to do what it is supposed to do--protect us individually and collectively.

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