Intersectional Affirmative Action

Intersectionality theory is increasingly being accepted in discrimination law. With such acceptance, we need to critically determine its role in different forms of discrimination law. This research argues that intersectionality holds a critical diagnostic role in discrimination claims, while it occupies a law-making role in affirmative action. While much has been written about its diagnostic role (ie, who is absent in the analysis), relatively little thought is given to its law-making capacity (ie, who should be included). Intersectional affirmative action, therefore, would require a deep analysis of the roles of intersectionality theory and affirmative action both separately and together. The research proposes that ‘intersectional affirmative action’ is the balancing of individual and group harm to allocate limited resources for the most disadvantaged, intersectionally identified, while addressing competition of victimhood to achieve social transformation. This incorporates four strands of apparent signal inconsistencies between intersectionality and affirmative action. The presentation shows an interpretative way to ease the tensions and create an intersectional affirmative action, by excavating deeper into the limitations of intersectionality and affirmative action separately; and showing the theoretical similarities that help alleviate the apparent friction. This is done to pave the way for a reformulation of intersectionality theory to better respond to the challenges of affirmative action, and vice versa.

The Intersection is a discussion group bringing together legal scholars to explore topics on—and voices in—equality and law.
We invite speakers across all affiliations and genders, with sessions focusing on either or both:

• research addressing equality in law and society, including work on gender, race, feminism, and other dimensions of structural inequality
• papers by women, gender minorities, and scholars from minoritized backgrounds working in legal academia on topics within their academic expertise.

The discussion group provides a space for emerging voices to share work in progress, challenge traditional legal paradigms, and build connections across institutional and disciplinary boundaries. We welcome diverse methodological approaches—from doctrinal analysis to socio-legal research, legal theory to comparative law—united by a commitment to critical engagement with equality across legal contexts.

Sessions are designed as informal, collaborative discussions that prioritise dialogue and intellectual exchange among researchers. All are welcome to attend.

The convenor of the discussion group is Dr Marthe Goudsmit Samaritter.

Interested in presenting a paper? Contact m.goudsmit@csl.mpg.de

Almas Shaikh is an internationally trained and India qualified human rights lawyer, currently working as an Assistant Professor in Law at the National Law School of India University. Her research focuses on equality and discrimination law, intersectionality theory, affirmative action, and constitutional design. She has international and national work experience. Internationally, she has worked with the Blavatnik School of Government, Oxford Human Rights Hub, UNITAR, UN International Law Commission, and DCAF—a security sector organization in Geneva. She also convened the Decolonising the Law Discussion Group and the Criminal Law Discussion Group at the Faculty of Law. Nationally, she has worked with Centre for Law and Policy Research, where she gained experience as a litigation lawyer in High Courts and Supreme Courts, on issues of trans rights, caste matters and constitutional law. Additionally, she has been involved in grassroots level and high-level advocacy on legislations of human interest and its implementation. She received her DPhil (PhD) from the Faculty of Law, University of Oxford under the supervision of Professor Sandra Fredman. Almas possesses Bar Council Qualification to practice in India and has worked in dispute resolution.